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Recent Activity Affecting EB-5 Programs and Investors

E-2 Visas: Alternative to EB-5 Visas

Several recent announcements made by USCIS and the Department of Homeland Security (DHS) offer interested parties a glimpse at trends in the EB-5 Immigrant Investor Visa Program, especially how future participants may be affected. While some of these pronouncements may fuel speculation of possible future actions, only by remaining informed can EB-5 advisors and legal experts plot out best approaches for clients entering the EB-5 process and for those already involved in the EB-5 program.

Department of Homeland Security Releases New Report

As part of the Trump Administration’s commitment to robust and stricter regulatory reform, each government agency must issue a quarterly report outlining actions taken to comply with this new mandate. One of the topics covered in the DHS’s Spring 2018 Unified Agenda of Regulatory and Deregulatory Actions report is titled “EB-5 Immigrant Investor Program Modernization” and is categorized as being in the final rather than the proposed rule stage.

In a process that began in January 2017, the DHS offered up the following proposed changes to the current EB-5 program:

• Increasing the amount of the minimum required investment
• Conferring rights of retention of original priority dates for selected EB-5 petitioners
• Modifying the process for designating Targeted Employment Areas
• Various adjustments to both filing and interview procedures

Another topic in its report that affects the EB-5 program, “EB-5 Immigrant Investor Regional Center Program,” is in the proposed rule stage. This rule is considering regulatory changes to the regional center program, focusing on the following concerns:

• Possible changes to how regional centers are initially designated
• Requiring regional centers to use an exemplar filing process
• Demanding ongoing participation requirements to keep regional center status
• Reviewing and possibly changing the procedure for changing a regional center designation at termination

Next action on this rule is scheduled for March 2019.

USCIS Changes Concerning Pending I-829 Petitions

In a recent update to its Policy Manual (Vol. 6, Part G, Chapter 5), the USCIS clarified and confirmed that, upon successful filing of their I-829 petitions, immigrant investors and their qualified family members will receive a one-year extension of their conditional permanent resident (CPR) status. They will receive a receipt notice of this status, which qualifies as evidence of their legal immigration status.

EB-5 investors and their dependents with receipt notices but whose CPR status has expired will need to undergo an formal identification process, like fingerprinting, at an Application Support Center before their I-829 petitions can be ruled upon. Unfortunately, delays blamed on a new system conversion within the USCIS has created a huge backlog in processing I-829 receipt notices.

It is expected that this slowdown could entail a wait of 24 to 30 months. Because of this situation, many EB-5 investors and family members are having I-551 stamps added to their passports, which allows them to travel and serves as proof of their current CPR status. Affected EB-5 investors are advised to make an appointment at the USCIS field office nearest them to acquire the needed I-551 stamps.

Other USCIS Announcements and Changes

When the June 2018 USCIS Bulletin was released, no one showed any surprise at the slow advance in the cutoff date for Chinese and Vietnamese nationals seeking U.S. citizenship. Compared to the previous month, the cutoff date was moved forward only one week, to August 1, 2014. Even though this was expected, industry insiders and affected parties find the situation exasperating. Meanwhile, the only sensible strategy is to be patient.

Finally, effective May 15, 2018, including tenant-occupancy models as part of the required job counts are no longer accepted by the USCIS. According to the agency, there has been no demonstrable proof for the claims that potential tenants in their EB-5 projects represent new hires instead of relocations of existing staff. EB-5 participants should confirm that their investments are not relying on tenant-occupancy models to meet their job creation requirements.

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