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Takeaways from USCIS Stakeholder Meeting - March 3rd, 2017

March 03, 2017

Robert Cornish
Phillips Lytle

Rana Jazayerli
Phillips Lytle

USCIS held a stakeholder meeting today (03/03/2017) in Washington, DC on EB-5 matters.  According to USCIS personnel, over 900 people registered to attend the stakeholder meeting, whether in-person or by telephone.

According to Rana Jazayerli and Bob Cornish of the Phillips Lytle law firm offices in Washington, DC, there were several major “take-aways” from this meeting of crucial importance to those involved in projects connected with EB-5:

• The May 30, 2013 USCIS Policy memorandum on EB-5, which explicitly stated that formal I-924 amendments are not required for a Regional Center to expand its geographic boundaries was represented by USCIS, to the surprise of many, as superseded by their new policy. This policy, effective December 23, 2016, states that any Regional Center wishing to sponsor a project outside of its geographic area must file a formal I-924 amendment application. Further, any I-526 petition filed by an investor based on such a project before USCIS approves the I-924 amendment will be denied on the grounds that it was not approvable when filed.

Some audience members expressly objected, stating that (a) USCIS did not provide adequate notice of this very significant change in policy, and (b) that the adverse impact on Regional Centers, developers and EB-5 investors that have already filed I-526 petitions may be severe. 

While USCIS countered that this policy was clearly expressed in both the EB-5 Policy Manual published in 2016, as well as the instructions to the new Form I-924, the Policy Manual actually does not explicitly state that a I-924 amendment is required to expand the geography of a Regional Center. Rather, it simply omits geography from its list of changes that do not require an I-924 amendment. 

One would think and expect that a change this significant to USCIS policy would deserve and receive far more notice than a simple deletion in a multi-chaptered policy manual. Nonetheless, those involved in EB-5 should take special notice of this new policy in their current and prospective business planning and investment decisions.

• USCIS will be commencing what it characterized as “drive-by” inspections of Regional Centers, in addition to more formal inspections that would provide guidance on documents for inspection and the timing of such reviews on-site (generally one week).  The number of inspections that will take place in 2017 was represented to exceed 200.

• USCIS has sought approval for nearly 100 additional personnel to handle the processing of applications.  However, the addition of many such personnel is subject to USCIS obtaining an exemption from the federal hiring freeze implemented through Executive Order by the Trump Administration.

• No comments were offered on reauthorization of the EB-5 Program or the upcoming hearings in the House of Representatives on program reauthorization. 

Please contact EB-5 Diligence directly for further guidance and insight on these important issues in EB-5.

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