When United States Citizenship and Immigration Services (USCIS) held an EB-5 engagement presentation on November 11, 2020, it failed to touch on pertinent questions posed by EB-5 industry leaders. However, in a quiet and belated response, USCIS did answer—or at least address—some of the questions it ignored in the public engagement when it updated its General Questions and Answers document on December 16, 2020. EB-5 investment participants are encouraged to peruse the document at their leisure, but for those looking for a quick rundown of the content, read on.
I-526 Petition Information
According to the updated document, EB5 investment participants with I-526 petitions approved for expedited processing are not necessarily approved faster than regular I-526 petitions. The petition’s assignment for adjudication is accelerated, but adjudication times will vary depending on the circumstances of the individual petition. Regular I-526 petitions are assigned for adjudication based on visa availability. USCIS indicates it assesses visa availability monthly and updates I-526 workflows each month accordingly.
USCIS also explains situations in which an I-526 petitioner may be asked to provide evidence of jobs already having been created. Since I-526 processing is exorbitantly slow, in some cases, the job creation plan an EB5 investment participant presents in their I-526 petition may have already come to fruition. In such cases, USCIS may request evidence that those jobs have indeed been created.
USCIS states it has no intentions to develop technology to allow project-related documentation filed with a pending or approved I-924 petition to be incorporated with an I-526 petition. It acknowledges this inefficiency in the system but cites budget constraints as the prohibitory reason.
I-829 Petition Information
USCIS provides information on adding an eligible dependent (spouse or unmarried children younger than 21) to an I-829 petition—it is possible but requires a number of forms and documents. Those looking to share the benefits of their EB-5 investment with dependents not included in their I-526 petition should send an email to USCIS.ImmigrantInvestorProgram@uscis.dhs.gov with “Request to Add Derivative to Form I-829” as the subject line. The investor will then be provided with a cover sheet to mail in alongside numerous forms and documents.
USCIS also touches on I-829 denials—an investor whose I-829 petition is denied is already residing in the United States, which renders the situation more complicated than with I-526 denial. USCIS policy is to issue a notice to appear (NTA) with the immigration court, but in most cases, the agency waits until the initial motion period has elapsed. However, USCIS reserves the right to turn I-829 denial cases over to ICE more quickly.
On the subject of I-829 denials, USCIS also addresses the impact of fraudulent activity in a new commercial enterprise (NCE) on I-829 petitioners. Fraudulent activity on the part of the NCE will not necessarily result in denial for the EB-5 investment participant, but if it prevents the EB5 investment from fulfilling the requirements of the EB-5 program—such as creating at least 10 full-time jobs for U.S. workers—the petition may face denial.
Finally, USCIS answers a question regarding I-829 receipt notices reissued in July 2020 to EB5 investment participants waiting on I-829 approval. While some speculated that this indicated they were being given an additional 18 months of conditional permanent residency, USCIS clarified that they were merely sent as replacements for petitioners who may not have been sent an initial receipt notice.
Regional Center Information
Given the streak of regional center terminations in 2019 and 2020, USCIS was forced to answer a question in the Q&A regarding the publication of termination letters, but the agency’s disappointing answer was that it cannot provide a timeline for the publication of termination letters from 2019 and 2020. Similarly, it stated that it does not plan to publish regional center designation letters. When asked whether it will publish more detailed guidelines on regional center compliance duties and standards to avoid termination, USCIS simply responded that it evaluates terminations on a case-by-case basis and cannot provide further guidance due to the different circumstances of each project.
Regarding the “Advance Notice of Proposed Rulemaking on Changes to EB-5 Regional Center” Program (ANPRM), USCIS was also asked in the Q&A about the status and when stakeholders can expect to hear back about the comments they submitted. The agency’s lackluster response, which ignored the second part of the question entirely, was that it can offer no updates.
For regional centers ready to file their annual report for FY2020, USCIS explains that a new version of Form I-924A, released July 23, 2020, should be used for all filings later than January 5, 2021.
Finally, USCIS addresses an important issue for regional centers concerned about termination: whether an approved regional center will be terminated if it fails to submit affiliated I-526 petitions within a three-year time period. USCIS stated that no such requirement exists, even though this metric was used to justify regional center terminations in 2018. The termination letters for 2019 and 2020 will offer more clarity on this issue when they are finally published.