USCIS Issues Final EB-5 Policy Memo

[By JenniferHermansky on May 31st, 2013/Greenberg Traurig]

On May 30, 2013, USCIS finally issued the much anticipated Final EB-5 Adjudications Policy Memorandum.  The Final EB-5 Adjudications Policy Memorandum makes significant changes to and provides clarifications for the EB-5 Program.  Here are some of the highlights:

• Less Regional Center Amendments: The new memo states that USCIS does not require formal amendments to regional center designation when an RC changes its industries of focus, its geographic boundaries, its business plans, or its economic methodologies.  Previously, the I-924 listed “acceptable amendments” to include some of these. The memo clarifies the non-mandatory nature of these business changes.
• An RC’s Geographic Area is Determined by Reasonableness:  For the first time, USCIS outlined that determinations on the geographic area of a regional center are based on the RC’s ability to establish by a preponderance of the evidence that the proposed economic activity will promote growth in the proposed area. This means that the RC must show that the proposed area contributes significantly to the supply chain and labor pool of the proposed projects.
• Defines Hypothetical, Actual and Exemplar Projects: The memo states that if a project complies with the requirements of a Matter of Ho business plan, it is an “actual project.” If the project does not comply with Matter of Ho, it is “hypothetical.”  Additionally, an actual project requires more detail than a hypothetical. Finally, the memo defines an “exemplar” as an actual I-526 petition for a project that USCIS will review for EB-5 compliance, including all transactional documents (such as the offering materials).  This is important because if USCIS approves an “actual project,” USCIS will give deference to the later filed I-526s.  Hypothetical projects are not accorded deference at the I-526 stage.
• We decided that already! Deference to Prior Decisions: Deference to already adjudicated matters is one of the most significant changes contained within the memo. For example, if USCIS approves an I-924’s Matter of Ho compliant business plan, it will give deference to this at the later I-526 stage.  I-924 approval notices should state whether a project has been approved as an exemplar or actual project, thereby being accorded deference in future adjudications.
• Approved the Use of Escrow Accounts: USCIS explicitly approved investor’s use of escrow accounts as long as release of funds is immediate and irrevocable upon approval of the Form I-526 and acquisition of an immigrant visa or approval of Form 1-485 (adjustment of status).
• Bridge financing Permitted If You Just Can’t Wait: If a developer uses bridge financing prior to receipt of the EB-5 capital, this will not affect the job creation calculation whether or not said financing was contemplated before the EB5 financing.  However, it is always a best practice to have contemporaneous evidence of the intent to use EB-5 capital.
• USCIS Defers to State Adjudications of TEAs: USCIS will review state determinations of TEAs to see whether they used reasonable methodologies, but will otherwise defer to state determinations.
• Eventual Acquisition of an Asset Does Not Count as “At Risk” Investment: If the investor is individually guaranteed the right to eventual ownership or use of a particular asset in consideration of the capital contribution, then the expected present value of the guaranteed ownership or use does not count toward total amount of the investor’s capital contribution in determining the amount of money truly at risk.
• Restructure or Reorganization Means (probably) a Total Remodel or Significant Addition: Plans to convert a restaurant into a nightclub or add crop production to a livestock operation would constitute restructuring. This seems to mean USCIS wants a complete remodeling or significant addition to the existing business. “Reasonable time” to Create Jobs at I-829 is Not a Free Pass: Investors need not have created all the jobs at the I-829 stage, but need to be in “substantial compliance” and show that they will create jobs “within a reasonable time.”  This is not an open-ended allowance, but does provide some flexibility. After this time, jobs will not be considered unless there is a force majeure. 
• Material changes at I-829 stage? Don’t Fret: An individual investor can proceed with their Form I-829 petition to remove conditions even if within the time between I-526 approval and submission of the Form I-829 a material change occurred to the business plan.  As long as the investor can show that they satisfy the conditions for removal of conditions, USCIS may still issue an approval.

New EB-5 Program Office to be Established in Washington, DC

(By Douglas Hauer on December 3rd, 2012/Mintz Immigration Law)

During today’s EB-5 Stakeholder’s Meeting, USCIS announced the creation of a new EB-5 Program Office in Washington, DC. The Chief of the new EB-5 Program Office will report to the Deputy Director of USCIS. This is a significant realignment, which USCIS intends to accomplish within four to six months. According to USCIS, this reallocation of resources is targeted at ensuring that the Program Office addresses adjudications more effectively. The new EB-5 Program Office will handle adjudications, legislative affairs and policy, in addition to having full-time staff devoted to identifying fraud. One goal of the new EB-5 Program Office will be to move from the current RFE (“request for evidence”) model to a more dynamic email approach, where adjudicators handle complex communications directly with the public. Direct communication with decision-makers might result in fewer denials and RFEs over issues that could be resolved through the EB-5 Program Office communicating with an attorney.

Currently, USCIS adjudicates EB-5 petitions and benefits at the California Service Center. Processing times for benefits are very unpredictable. This leaves investors insecurely waiting, at times for more than six months, for resolution of their cases. Hopefully a new EB-5 Program Office will allow USCIS to accomplish the goal of a more efficacious and fair adjudications process. Until USCIS announces a change to filing procedures, the status quo is in place and all filings should continue to be channeled to the California Service Center. With the new EB-5 Program Office, USCIS will have an ambitious goal of adjudicating EB-5 benefits in 90-120 days.

USCIS EB-5 Engagement on December 3, 2012

(Source: USCIS)

 "Dear Stakeholder,

U.S. Citizenship and Immigration Services (USCIS) invites interested parties to participate in a conversation with USCIS Director Alejandro Mayorkas regarding the EB-5 Immigrant Investor Program on Monday, December 3, 2012 from 2:00 p.m. to 4:00 p.m. (Eastern). During the engagement, Director Mayorkas will discuss EB-5 policy and procedural issues and take questions from participants.  

To Participate in the Session:
You may attend this engagement either in person or by teleconference. However, those attending via phone will be in listen-only mode. If you wish to attend in person, attendance is limited to the first 100 people who register. To register, please email the Public Engagement Division no later than Friday, November 30, 2012 at Public.Engagement@uscis.dhs.gov.

If you plan to attend in person, please reference “EB-5 Conversation – In Person”
If you plan to attend by phone, please reference “EB-5 Conversation – Phone”

To Join the Session:
Following registration, we will confirm your attendance in person or by telephone. If you are attending in person, please be sure to bring photo identification and arrive at least 15 minutes early to allow extra time to complete the security process. If you are attending by phone, please use the information below to join the session.

Call-in Number: 1-888-324-8192
Passcode: EB5

 
Kind Regards,
U.S. Citizenship and Immigration Services" 

- USCIS, Nov. 19, 2012.

Banks Pummeled by Low Rates

 

An article in the Wall Street Journal dated October 23, 2012 stated that due to the current “superlow” interest rates in the United States, the Banking Industry is experiencing its lowest net profit margin in three years.  

The eroded net profit margin (which tracks how much banks earn on funds borrowed from depositors which are in turn lent or invested) has caused sliding lending profits, causing banks to close branches, weigh additional fees and roll back customer favorites, such as free checking.  The average margin for the industry’s largest banks is at 3.12%, the lowest since 2Q 2009.  

Over time, these downsized profits are likely to accelerate a downsizing process that has halved the number of insured institutions over the past two decades.  The spread between banks’ deposits and lending rates has narrowed in part because of low Federal Reserve-influenced rates and decreased demand for loans amid the soft economic growth.  As their higher-yielding loans mature, banks are being forced to replace them with assets that carry much lower rates.  If interest rates begin to rise, these new loans may prove to be unprofitable. 

Higher costs for banking services could push more people out of the financial system altogether, adding to the millions of customers already considered as lacking access to affordable financial services.

Webinar from IIUSA regarding Regional Centers 2012 Annual Reporting (Form I-924A)

(Source: IIUSA) Regional Centers don't forget to get your I-924A completed and submitted to USCIS by December 29, 2012. Join IIUSA on 11/9 for a webinar regarding Regional Centers 2012 Annual Reporting (Form I-924A).

SIGN UP HERE -  http://iiusablog.org/events/iiusa-host-119-webinar-regional-centers-2012-annual-reporting-form-i924a/

Wealthy Chinese seeking overseas residency - EB-5 Immigration Investor Visa Program

(Source: BBC News) Great article from BBC News  that discusses issues on why wealthy foreigners are wanting out of their country, mainly the Chinese. The EB-5 visa program is an investment-for-residency program, handing out green cards as long as the investment can be shown to have created at least 10 jobs. In 2006 Chinese nationals were granted just 63 visas under the scheme. Last year the figure had leapt to more than 2,408 and this year it is already above the 3,700 mark. It means a tidal wave of Chinese money is currently pouring into US infrastructure projects. The investor program is open to any nationality but Chinese investors now make up 75% of the total.


Read BBC Article here : http://www.bbc.co.uk/news/world-asia-china-18966261

President Obama Signs Extension of EB-5 Immigration Investor Program

(Source: The White House)  On September 28, 2012 President Obama signed S.3245, a bill which extends to September 30, 2015 the authorization of the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Non-minister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program for the next three years.

See statement here - September 28, 2012, the President signed into law