Note: This article was originally published on Investment Migration Insider and is available here. Also, in case you missed it, check out a great podcast episode we recorded for IMI that featured EB-5 luminaries Ishaan Khanna and Suzanne Lazicki, available here.
On April 29, USCIS held its first public quasi-engagement with EB-5 stakeholders since the passage of the EB-5 Reform and Integrity Act of 2022 (“RIA”). USCIS’ “listening session” heard from numerous stakeholders advancing overwhelmingly negative commentary regarding the Agency’s handling of EB-5 application processes and in putting forth much-needed public guidance. The listening session was held just hours after the Agency published a controversial “EB-5 Questions and Answers” update to its web site, which was not announced through its conventional email updates to stakeholders.
By way of background, the RIA was a massive overhaul of the EB-5 visa wrought over years of negotiations, but many saw the new legislation as having the potential of creating chaos and postponing the re-stabilization of the program for years. While Friday’s Q&A update provided some additional clarity, many important items remain unclear. Following brief remarks opening the listening session made by USCIS Director Ur Jaddou and Immigrant Investor Program Office Chief Alissa Emmel (among a handful of others), USCIS provided only a forum for callers to voice commentary, repeatedly mentioning that no questions would be answered during the session.
Perhaps most controversially, through the Q&A USCIS has taken the position that its previously used forms dedicated to Regional Center formation and ongoing disclosures – Forms I-924 and I-924A – have been made obsolete because the RIA “repealed the legacy Regional Center Program and any prior designations[.]” Importantly, it follows then that all Regional Center designations are now defunct, and all entities seeking to recruit Regional Center-based investors must now file and secure approval of new designations made through a new, as of now unpublished, form (I-956) before backing new investor filings.
“Continuing a practice that started with the Trump Administration, USCIS yet again totally disregarded AILA’s multiple requests for meaningful engagements to discuss the RIA in advance of the 60-day enactment period,” wrote Chair of the American Immigration Lawyers National EB-5 Committee, David Morris, Esq. “Instead, USCIS elected to act unilaterally on Friday by announcing new expansive and highly controversial policies (and a new form) impacting tens of thousands of stakeholders by means of a “Listening Session” and eleven “Questions & Answers” posted in their web site. That is definitely not public engagement.”
Notably, USCIS’ position regarding the repeal of previous designations is currently subject to litigation in Behring Regional Center, LLC v. Alejandro Mayorkas and Ur M. Jaddou (3:22-cv-02487), which is pending before the Northern District of California. Interested readers will recall Behring and its counsel Greenberg Traurig, LLP had successfully sued Secretary of Homeland Security Alejandro Mayorkas previously over the improper promulgation of regulations which had raised minimum investment amounts and sharply curtailed where EB-5 projects could be considered to be within targeted employment areas.
In addition to this particular concern, callers also voiced opposition regarding the lack of Form I-829 processing during the suspension of the Regional Center program, concerns that staggering approvals of the new Form I-956 could lead to unfair windfalls for certain regional centers, lack of agency transparency, and many other criticisms. Some questioned whether USCIS had given its new policies adequate thought.
“So the burning question is – why doesn’t USCIS want public feedback from stakeholders who are likely to have useful information, data, and perspectives on the benefits and burdens related to implementation of the RIA?” Morris wrote.
Not all elements of the Q&A are negative, however. USCIS has officially confirmed that it “has resumed processing regional center-related Form I-526, Immigrant Petition by Alien Entrepreneur, filed on or before June 30, 2021, the sunset of the previous regional center program. USCIS will adjudicate those Forms I-526 petitions according to the applicable eligibility requirements at the time such petitions were filed (that is, the eligibility requirements in place prior to the enactment of the new legislation on March 15, 2022).”