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USCIS Operations Insights from a Leading I-924 Documentation Service Provider

There is very little public information on the inner-workings of USCIS and more specifically on USCIS’ EB-5 program adjudication process. Each time a prospective Regional Center submits an I-924 application it feels a bit like the application is going into a black box, where it could be adjudicated within a few months or it may not be looked at for nearly a year.

EB5AN has observed the application process from a unique angle – after submitting over a dozen regional center applications, all with a similar level of rigor in document preparation, we have been able to observe some of the various paths applications go through when being adjudicated by USCIS.

Earlier this year we submitted several I-924 applications within a few weeks of each other. From outside observation, we could tell each application went to a different “team” within USCIS. Each of these teams processed the applications very differently, with key differences including: time for initial review, length of review, focus of RFE’s, and the quantity and extensiveness of RFE’s.

Based on our extensive experience we have been able to gain some useful strategies to leverage when applying for new regional centers, even those with expansive geographic coverage. One of the things we have learned is that having substantial and in-depth evidence across the entire geographic area is a necessity for approval for the larger county group. The most critical additional analysis is related to the business plan / operations plan and the detailed job impact analysis. Multiple detailed local analyses are needed for larger geographic areas.

Due to our experience EB5AN has developed unique approaches to I-924 applications based on our extensive experience working with USCIS in the Regional Center application process. Going forward we will continue to monitor the processing times and tendencies based on our application volume and continue to gain insight from their operations.

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Implications of EB-5 Visa Retrogression

While the mechanics of visa retrogression on a per-country basis are complex, the reality is that there are only 10,000 visas available in the EB-5 category each USCIS fiscal year. Since an average of approximately two family members apply alongside each investor, USCIS can approve 3,300 EB-5 visas each fiscal year.

However, as of May 2019, around13,500 I-526 petitions 500I-526 petitionsare pending with USCIS. Therefore, it is likely that the current fiscal year’s visas will be exhausted by investors whose petitions are currently pending, and investors submitting I-526 petitions this year could face delays of over 12 months. In fact, predicted wait times each extend to several years for countries facing higher demand.

Given this change, the market standard escrow release terms for EB-5 projects are changing to allow for earlier release of investor capital before I-526 approval. This is simply a matter of timing and realistic waiting time for EB-5 projects, of which the vast majority cannot deal with funding uncertainty in the 12- to 24-month range.

To learn more about EB5AN and how we work together with partners to assemble best-in-class EB-5 projects, please call us directly at 1-800-288-9138.

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Impact of Current EB-5 Processing Times

On October 24, 2014, USCIS released an updated EB-5 Processing Report of average processing times for the Immigrant Investor Program Office as of August 31, 2014. This recent report indicates that current average processing times are 13.8 months for Form I-526 (Immigrant Petition for Alien Entrepreneur); 7.2 months for Form I-829 (Petition by Entrepreneur to Remove Conditions), and 8.1 months for Form I-924 (Application for Regional Center Under the Immigrant Investor Pilot Program).

It is important to note that these figures are averages and that EB5AN has seen processing times both significantly shorter and longer on all forms. For example, our experience completing numerous economic impact reports and regional center applications throughout the United States shows us that I-924 applications filled for smaller regions (<10 counties) tend to be approved faster than average, whereas larger tracts of coverage typically require more approval time. Although this is the norm there are exceptions and it is difficult to predict processing times with any certainty.

From an availability of capital perspective, since current I-526 forms are taking around 13 months for individual investor approval, we are seeing a shift in the marketplace in escrow terms. Both the timing and amount of capital available upon release are adjusting to reflect delays in processing times. For example, during periods where I-526 application processing times have been shorter, projects in the marketplace have structured escrow agreements such that investor funds drop into the project’s operating account (out of escrow) on each individual investor’s I-526 approval. Now that USCIS processing times have increased, we are seeing a movement toward a range of early release investment structures. A few examples of these structures include: (i) 80/20 capital releases on submission and (ii) full capital release for all investors on the first investor’s I-526 approval.

(i)             80/20 capital releases on submission: With this structure, the investor’s funds are put into escrow and then 80% of the funds are directly released into the project’s operating account upon I-526 submission with the remaining 20% held back in escrow until that individual’s I-526 application has been approved by USCIS. This method of early release is becoming more widespread as many projects cannot wait over a year for money to become available out of escrow. The logic behind this structure is that historically USCIS has had an I-526 denial rate of well below 20% and so the idea is that with multiple investors in a given project, if one investor’s I-526 petition is denied, then there will be at least 4 investors in the same project who successfully obtain I-526 approval.

(ii)           Full capital release for all investors on first I-526 approval: With this structure, all of the investor’s funds for a project are held in escrow until the first investor in the group gains I-526 approval. When this occurs, this event serves as a trigger for the remaining investor’s capital held in escrow to drop out of escrow and into the project’s operating account. There can also be holdbacks included in this to create reserves for any denials.

To learn more about EB5AN and how we work together with partners to assemble best in class EB-5 projects, please visit our website at www.EB5AffiliateNetwork.com or call us directly at 1-800-288-9138.