Tuesday, May 29, 2012

Sad to sing my swan song

     I just rotated off the EB-5 Investors Committee of the American Immigration Lawyers Association.  For four long years I battled to improve, along with my hard-working colleagues, the management and function of the EB-5 Program and the Immigrant Investor Pilot Program.
     Sadly, if I were asked, "Is the EB-5 Program better off today than when you took office?", I would have to say no.  While the numbers are greater, i.e., there are more I-526 petitions (for the conditional green card) and I-829 petitions (for the permanent green card) being approved by U.S. Citizenship and Immigration Services (USCIS) today, there are also wrenching changes in adjudications and federal policy, without lawfully required rulemaking procedures, and failure even to implement what the headquarters staff tells immigration service officers at the California Service Center (CSC) to do, or how to approach particular problem areas in adjudications.
     My disappointment in USCIS knows no bounds.  I am actually relieved to be away from the fray for awhile.
     On May 1, 2012, during an EB-5 stakeholders meeting at the CSC in Laguna Niguel, CA, it was bad enough listening to a USCIS CSC employee deride stakeholders, who traveled thousands of miles. over an open mike.
     So the AILA committee's parting shot was a 10-Point Program, to-wit:
     1.  Provide a forum whereby USCIS representatives on a quarterly basis can advise regional center stakeholders of the issues it is seeing in applications that are producing the largest numbers of RFEs and denials.  At the same forum, allow regional center stakeholders to provide lists of adjudicatory issues on which there is a lack of clarity.
     2.  When new standards are going to be implemented that will affect large numbers of applications (whether it involves the methodology for the counting of jobs that will be created, or the structure of bridge financing, or any other aspect of an EB-5 transaction), provide notice to stakeholders in advance rather than issuing large numbers of RFEs on issues that were not issues at the time of filing.
     3.  Implement USCIS Director Mayorkas’ idea of a Decision Board as promptly as possible.  This Decision Board would be made up of economists and business analysts and would meet or conference with regional center applicants to discuss any issues that need to be resolved before a project can be approved.
     4.  Hire a sufficient number of examiners to bring processing times to levels that make some sense in a time-sensitive, job-creating program such as EB-5.
     5.  Instruct examiners that, except in rare instances, multiple RFEs should not be issued.
     6.  Publish meaningful guidelines on what adjudicators want to see when adjudicating a regional center application.  Most denials and RFEs are based on often-changing policies that are not contained in any regulation or even any government-issued memorandum.
     7.  Make the regional center amendment process workable.  Regional Centers are approved for specific geographical areas, specific industry codes and specific economic methodologies for counting job creation.  Right now, if a regional center wants to amend its geography, economic methodology or industry code, the published processing time is 8 months – longer than filing a new regional center application.  This is unworkable.
     8.  USCIS has created a process – the exemplar I-526 – that enables a regional center to have a project approved for EB-5 investment prior to receiving investments.  The problem is that, despite a $6,230 fee and an 8-month processing time, USCIS does not consider itself bound by any approval.  USCIS must make this process meaningful as a way of saving time and adjudicatory resources.  If it is not meaningful, stakeholders should not be expected to pay large filing fees and wait long periods of time; and the process should be eliminated.
     9.  Provide substantive responses to inquiries sent to USCIS’s EB-5 mailbox.
     10.  Last, but by no means least, increase the monitoring of approved regional centers.  We all agree that if there are any non-compliant regional centers or project developers, they do harm to the program and should be eliminated.
     Even though I was proud to serve AILA on the EB-5 Investors Committee, I was sorry to leave my fellow committee members with so many daunting challenges.  It should go without saying that the EB-5 immigrant visa investor program should be a win-win for everybody, but according to USCIS, it's just another visa program full of fraud and abuse.  More's the pity.

Tuesday, May 1, 2012

EB-5 Program statistics released

     The EB-5 immigrant investor visa program is still woefully underutilized, if newly released statistics are any guide.  The Office of Performance and Quality of U.S. Citizenship and Immigration Services shows that 1,563 I-526 petitions (for the conditional immigrant visa) were approved in federal fiscal year 2011, up from 1,369 in FY 2010.
     But based upon preliminary data from the first two quarters of FY 2012, 2,101 I-526 petitions were approved.  That's better, but still nothing for USCIS to crow about considering Congress makes available 10,000 visas each federal fiscal year.
     On the backside of the process, USCIS approved 1,067 I-829 petitions to remove conditions on residence, and there were 522 approvals during the first two quarters of FY 2012.
     The approval percentage for I-526 petitions in FY 2011 was 81 percent, and for the first two quarters of FY 2012, it was 85 percent.