In September 2020, documentation regarding a May 2019 I-526 “reset training” held by the Investor Program Office for USCIS adjudicators was partially released. The I-526 petition is the form every foreign investor must submit to show they have invested the required capital in an eligible EB5 investment project, either directly or indirectly, through an EB-5 regional center. Documentation must also support that the enterprise will ultimately create the minimum number of full-time jobs required by the EB-5 investment program.
The long-awaited release of this training content comes on the heels of what was initially a Freedom of Information Act request and later a lawsuit due to the agency’s refusal of the request. While the first batch of training materials only amounts to a quarter of the training materials adjudicators were required to cover, 500 pages is certainly a start.
A key sticking point is that the judgment for that FOIA lawsuit only required the documents to be released to the party that filed suit (Invest in the USA, or IIUSA). IIUSA is an EB-5 industry trade association focused on benefiting U.S. workers and their communities (and thus the U.S. economy). Although they are a not-for-profit organization, IIUSA has unfortunately elected to limit access to the reset training materials solely to its members, meaning they are only accessible via the IIUSA Member Portal.
So, what do we know about the materials that have been released so far, and why are they important to EB-5 immigrant investors?
What Important Updates Have Been Released So Far
The first 500 pages of training materials covers quite a bit of ground, beginning with a series of I-526 and I-924 exercises designed to allow adjudicators to practice identifying scenarios in which they should deny deference to previously approved petitions and how to properly request additional evidence for questions surrounding sources and paths of funding. Sections of particular interest for foreign nationals executing an EB-5 investment include new content surrounding the following subject areas:
- At-risk capital
- Economic impact analysis
- Escrow arrangements
- Material changes
- Minor investors
- Non-EB-5 investors
- Path of funds
- TEA analysis
Why These Materials Are So Important for EB-5 Program Participants
Foreign investors spend years following immigration processes and requirements to enjoy a life in the United States. Training materials like these can provide valuable information for both program participants and the experienced legal teams with which they partner on an EB5 investment. These texts offer guidance, interpretation, and sample scenarios that are not provided anywhere else. Frankly, in the name of transparency, these U.S. government materials are exactly the type of information that should be available to the public at large – or at least to the foreign investors and other immigrants who are affected by any changes in the adjudication process.
While most content in these kinds of updates remains the same, nuances in the way USCIS adjudicators are trained to interpret existing policies and the precedents laid out in the presentations they are given can make a huge difference in the way final decisions on EB-5 investment petitions are reached. Not only do these training materials provide basic outlines of information, but interpreters may also glean additional insights from notable angles, emphasis, and even omissions of previously provided information.
When updates are made, those who prepare documentation for adjudicators’ review should be able to access the standards and perspectives adjudicators are asked to use for the documents. It saves time, energy, and resources not only for the immigrants submitting petitions for their EB5 investment but also for the adjudicators required to analyze them.