EB-5 Immigrant Investor Program

Conversation With the Director

2012-01-12T14:39:00.000-08:00

I participated in a conversation with USCIS Director Alejandro Mayorkas on Thursday, January 12. He apparently called the meeting to roll out a [nearly] final draft of his EB-5 memo and to discuss a variety of other issues.
The one on my plate -- readjudication of "pre-approved" EB-5 investment projects at the I-526 petition stage -- he apparently doesn't get yet. He referred to situations in which a "general" I-924 is filed with EB-5 project specific documents, including the business plan, and other or different documents are filed with the I-526 petition. I can assure the director that none of the I-924s filed by my regional centers can be fairly called "general" in nature. The docmentation is voluminous and very specific, and is the same as the documents filed with the I-526.
But the director did recognize the readjudication issue as "a core issue for us to get right."
The main issue from the director's point of view was to develop and provide accurate guidance to his immigration service officers. The main issues from my point of view were elimination of readjudication and establishing predictability and certainty in the adjudication process.
"We're moving as fast as possible to implement [15-day] premium processing," Mayorkas declared.
While that's good to hear, most insiders don't think they will see premium processing for at least another six months or more.
Other news concerned embrace of the "fund" concept. In the regional center context, Mayorkas said, as long as the new commercial enterprise is a holding company, it can invest in a variety of businesses such that if one or more fail, investors may still be successful in removal of conditions if one or two businesses are successful.
Mayorkas confirmed that bridge loans are permitted where they are referred to in the business plan and are necessary to get an new commercial enterprise started. He and his lawyer also confirmed that census tracts may be used to identify a targeted employment area, and that unemployment data may come from reliable sources other than local area unemployment statistics produced by a government agency, U.S. Census Bureau data, and data from the American Community Survey.
Mayorkas also referred to three new hires -- economists, I think -- and said USCIS is conducting interviews in a move to hire "entrepreneurs in residence".
The meeting was more then three hours long.

What are we paying for?

2011-12-29T15:32:00.000-08:00

Often I read an article in the mainstream media that screams, "I don't know what I'm writing about!" But every now and then I see something truly accurate written about the much-maligned EB-5 Program.
A San Diego colleague, Brandon Meyer, was allowed a guest editorial on another colleague's blog, so here you go: CLICK HERE.

What the EB-5 Program hasn't got

2011-11-06T17:00:00.000-08:00

I'm going to write about something that the EB-5 Program hasn't got: Certainty or continuity.
Very important words, these. The employees responsible for the EB-5 Program at U.S. Citizenship and Immigration Services HQ and the California Service Center may, in fact, be smart people who understand the EB-5 Program. I don't believe that, but let's say, for the purposes of this blog, that they are and do.
What they don't have is the ability or the motivation to give the EB-5 Program certainty and continuity so that the stakeholders -- regional centers, investment project developers, EB-5 lawyers, EB-5 investors -- can count on anything -- anything at all.
New memos coming out of USCIS show time and again that these employees are intent on making things worse for the EB-5 Program, not better, more complicated, not easier for anyone to navigate. In fact, they often change the rules in the middle of the game.
Because this federal agency makes it possible for an investor to plunk down $500,000 or $ 1 million and apply for a green card, it had better be able to provide some certainty and continuity.
That is not happening today, and it won't until or if the stakeholders turn up the political heat.

Country Place Living's EB-5 market success is strong

2011-09-27T17:19:00.000-07:00

America's Center for Foreign Investment, my regional center which encompasses the states of Alabama and Tennessee and large areas of Mississippi, Georgia, and the northern tier of Florida from Santa Rosa to Volusia counties, is proud to be associated with Country Place Living and everyone on their team.
I have been thoroughly impressed by the boss, Jack West, and have watched his team from afar working in China. Their assisted living facilities in ACFI's geographic area are being built now and there could be as many as 75 such facilities within several years.
Country Place Living's success has been noted. Please click on the link below:

Country Place Living popular among investors

Meeting with the Director

2011-09-27T16:56:00.000-07:00

The trip to Washington, D.C., to meet with USCIS Director Alejandro Mayorkas was fine. What wasn't was the resistance I still see and hear to establishing some nurturing management of the EB-5 Program. This is a job-creation program established by Congress in 1990 that has been mismanaged by U.S. Citizenship and Immigration Services for more than 20 years.
If USCIS were a big corporation instead of just a big, bloated government bureaucracy, there would have been a shareholder revolt and the EB-5 Program "management team" would have been fired many years ago. But federal government employees can't be fired. They can, however, be reassigned. Come to think of it, that's not a bad idea at all.
There was an advocate for the EB-5 Program years ago, on the inside, in the same building where I met with Director Mayorkas, working every day to gin up positive activity in the EB-5 Program, but he was bureaucratically assassinated and has retired. The EB-5 community -- those of us out here trying to work this foreign investor immigrant visa program -- didn't know it at the time, but those were the "good old days."
To his credit, Mayorkas seems to know the EB-5 Program is in trouble, but he does not seem to know how to rescue it.
Part -- just part -- of the problem is that the USCIS employees (called immigration service officers, ISOs) "adjudicating" EB-5 visa cases in Laguna Niguel, California, treat every applicant like a terrorist or drug dealer and their money is considered dirty until proven clean, much like guilty until proven innocent. That's just part of the problem, but it's a really big part. ISOs are "adjudicating" these investor visa petitions using the wrong evidentiary standard.
Statute law, case law, and federal regulations agree: These cases are supposed to be examined using the "preponderance of the evidence" standard, which basically means "more likely than not". Instead requests for additional evidence I have seen clearly show that ISOs are using the "beyond a reasonable doubt" evidentiary standard.
Mayorkas has proposed accelerated and premium processing of "shovel ready" cases. Notice he used the word "cases", not "job-creation projects". I think that's telling.
He has proposed specialized intake teams for I-924 applications with direct customer access. This sets the table for another layer of bureaucracy that is unlikely to be helpful.
He has proposed an "enhanced decision process" for I-924 applications with an option for in-person or telephonic interview. This sounds nice until you realize that the ISOs don't want it. They treasure their anonymity, huddled in their bunker, lobbing shells at the customers in the form of whacky decisions and the ubiquitous "No, you can't have that visa."
I told Mayorkas that regional centers don't want letters approving "amendments" to their designation letters when they submit an EB-5 investment project for "pre-approval". I said we want a Form I-797 approval notice.
"Can we do that?" Myorkas asked the assembled staff. A high-level employee said probably not because the CLAIMS system, which stands for Computer-Linked Application Information Management, can't spit out the form. Garbage in, garbage out, I guess. You see my points?

Meeting in Washington

2011-08-09T17:17:00.000-07:00

I am in Washington, D.C., for a meeting with USCIS Director Alejandro Mayorkas. The EB-5 Investors Committee of the American Immigration Lawyers Association is doing its best to lay out a prescription to treat issues created by USCIS itself that have harmed the EB-5 Program and could take the entire investor visa program down.

I will file a report in this blog when I get back to my office.

More fuzzy thinking, courtesy of USCIS HQ

2011-07-23T15:26:00.000-07:00

During the last EB-5 stakeholders call, USCIS HQ issued a Q&A that contained this gem, twice:

Q. If jobs are created on an indefinite full-time basis and then lost (such as by downturn of the business) after all EB-5 capital has been plowed into the business, but before the end of CPR status, can they be counted?

A. Jobs created as a result of the EB-5 investment must be maintained through the entire two-year period of conditional permanent residence. INA 216A(d) and 8 CFR 216.6(c)(iv).

Q. If jobs must last to the end of CPR, what is the critical moment: filing of I-829 (which might precede end of two years of CPR by up to 90 days), end of CPR (two years), or approval of I-829?

A. The job created as a result of the EB-5 investment must be maintained through the entire period of conditional residence. The conditional residence ends when the conditions are removed, at the time of approval of the I-829.

Who knows when jobs will be created or lost? Conditions change, the economy falters, growth is slow. Some EB-5 new commercial enterprises go forward without full funding. Some don't. Some go forward but cannot afford to hire enough workers to have 10 workers for each investor at their individual I-829 petition stage or maybe all 10 workers were not on the job during the investor's two-year conditional residence period, but are on the job when the investor's I-829 petition is filed.

How is it in the interests of USCIS to deny the investor's I-829 petition because all 10 jobs did not exist at the time the investor entered the United States or adjusted status if in the United States. That's an arbitrary date that the investor has little, if any, control over. And, typically, the investor has no control over the new commercial enterprise. USCIS is essentially making the investor responsible for job creation, and that is patently unfair.

Comments like these out of HQ betray lack of knowledge on the part of this agency and failure to take into account business realities. If the jobs are there at the time the I-829 petition is filed with USCIS, I say approve it.

I'm tired of this fuzzy thinking when the focus should be on job creation, stupid!

Please come to Boston

2011-06-26T15:17:00.000-07:00

On July 29 I will join my colleagues in Boston for the 2011 EB-5 Investment Summit: Dealmakers Conference. I will deliver information about how to run a regional center. The program indicates all of the bases are covered, so please come to Boston.

For information and to register, go here: http://www.eb5bostonsummit.org/

Baker's Dozen

2011-04-20T16:59:00.000-07:00

Robert Divine (partner with Baker Donelson, Chattanooga, former Acting Director of USCIS, fellow member of the EB-5 Investors Committee of the American Immigration Lawyers Association, and a personal friend) asked me to prove what USCIS has said and done to show its hostility toward the EB-5 Program.

It was too easy. All of the following issues below come from my file of USCIS misinterpretations of the law or regulations, from official USCIS memos, official requests for additional evidence, or from USCIS stakeholder conference calls and USCIS reports on those calls.

Here's my baker's dirty dozen list.

1. The two-year rule on full investment and creation of jobs for purposes of removal of conditions, which USCIS snatched out of the marriage fraud amendments, without any apparent basis in reality. Why two years? Could have been four or five, if the goal is job creation. Done.
2. First USCIS said constructions jobs did count (2007) then said they didn't (2009), then said construction jobs must last two years (another two-year rule pulled out of the marriage fraud amendments, without any apparent basis in reality). Why not five years? Why not six months? Said.
3. First USCIS said we could have "rural areas" within MSAs, then it said we couldn't. Said.
4. Capital from sole proprietorships is not "personal assets" for purposes of investment. Said and Done.
5. First USCIS examined regional center applications based upon the business plan and the industries and geographic areas requested. Now it is "project-centric" and requires real or exemplar investment projects for each industry or economic sector and each geographic area (looks like county level, not sure). USCIS analyzes and "adjudicates" or "pre-approves" exemplar projects that do not exist and when they are not even asked to adjudicate them, which is very strange. In short, ACFI's application for designation as a regional center would not be approved today because the agency fails to apply its own laws, regulations and official guidance in a manner in keeping with the congressional intent of this job-creation program. Done.
6. USCIS is denying almost one-third of I-829s. As a prospective investor in the EB-5 Program, if I knew there was a one in three chance that I would not get my permanent green card, I would not invest. Done.
7. Given a choice of allowing an amended I-526 or a new I-526 upon the event of a "material change" in an EB-5 investment project, USCIS chose "new petition". Done.
8. The California Service Center (CSC) adjudicates I-526 petitions with the presumption that the applicant is either a terrorist or a drug dealer. CSC adjudicates I-829s without giving weight to or recognizing the "reasonable time" regulatory standard for job creation. Done.
9. First USCIS said we couldn't count indirect jobs outside the boundaries of the regional center. Then it said we could (Mayorkas letter to Sen. Leahy). Then it said we couldn't count indirect or induced jobs outside a TEA (targeted employment area). Then it said we could. Said and who knows?
10. First USCIS said we couldn't gerrymander TEAs, then it said we could, but most recently said we couldn't. Said.
11. CSC immigration service officers are over-relying on the four Administrative Appeals Office (AAO) "precedent decisions" and under-relying on the law and regulations. Requests for additional evidence coming out of the CSC strongly indicate that CSC officers are not using the preponderance of the evidence standard that statute law and case law require them to apply. Instead, CSC officers are imposing the beyond a reasonable doubt evidentiary standard.
12. USCIS's stated goal is 90 days processing time for an I-526 petition. Current processing time often exceeds nine months or more. While the I-526 petitions are pending, in most cases the investment capital sits in escrow. EB-5 investment project developers cannot wait on the capital that long. Many good job-creating investment projects are dying on the vine. Said and Done.
13. In a "troubled business" scenario, in which jobs are preserved rather than created, USCIS has stated that indirect jobs are not considered preserved, then they said they were. Said.

I could have added four or five more issues to this Baker's Dozen, proving that USCIS is confusing the hell out of foreign investors, their lawyers, investment project developers, and people who run regional centers. I hope it is not viewed as hyper-critical of USCIS, which it is not meant to be. I hope it is viewed for what it is: A list of evidence that the agency has mismanaged the EB-5 Program for a very long time to the everlasting detriment of the people the agency's employees are sworn to serve. In my view, the trend will continue.

I have lost hope that this trend will reverse itself.

Boyd Campbell
Vice President and General Counsel

America's Center for Foreign Investment, LLC
100 North Union St., Suite 682
PO Box 11032
Montgomery AL 36111-0032
Direct +334.832.9090
Office +334.954.3111

U.S. government giving foreign investors the shaft

2011-02-20T10:53:00.000-08:00

I've been doing a lot of thinking about EB-5 investors lately.
What happens when they get to the I-829 petition stage (removal of conditions) and there is insufficient information from the investment project that the investor's money was "fully invested" as required by federal regulations?
What happens to the investor if there is insufficient information from the investment project that it created at least 10 U.S. worker jobs as required by federal regulations?
What happens to the investor if the investment project fails? What happens to the investor if a regional center fails?
What happens if the investor is approved for removal of conditions but the investment project goes bankrupt?
Apparently neither Congress nor U.S. Citizenship and Immigration Services (USCIS) gave much thought to this because it wasn't happening when the law was passed and the regulations were written. It's happening now. As everyone knows, the worst recession in our lifetimes delivered a roundhouse punch to the U.S. economy, and the recovery -- which is occurring in some parts of the United States -- is extremely slow.
It is in this economic environment that EB-5 investment projects are not doing well or failing. Insufficient jobs are being created to cover EB-5 investment project investors (minimum of 10 U.S. worker jobs each). EB-5 investors' money is being lost. And the consequences for the foreign investors -- who, in good faith, put their hard-earned money down and in many cases sent their families to the United States and their children to enroll in school -- are brutal and patently unfair and unjust.
When the investors have insufficient information and documentation to deliver to USCIS along with their I-829 petitions, the petitions are denied and the investor and family members -- if in the United States -- are put in deportation (removal) proceedings.
One can argue about the unfairness and injustice of this for quite awhile, but what we (immigration lawyers, Congress, USCIS, regional centers) need to focus on is how to protect the investors. These problems are not their fault and they should not be denied immigration benefits if their money is lost and/or an insuffucient number of U.S. worker jobs is created through no fault of their own.
It is my understanding, although records are incomplete, that USCIS is denying about one-third of the I-829 petitions filed with the California Service Center. This situation is not sustainable if the EB-5 Program is to survive.
News travels fast, and bad news travels faster. If I have a one in three chance of not obtaining a permanent "green card" if I invest through the EB-5 Program, my money is staying home.
There is a precedent in U.S. visa programs for situations where there are failures of eligibility requirements. On October 28, 2009, Congress passed the Department of Homeland Security Appropriations Act for FY2010. Thanks to Brent Renison's organizational skills and relentless lobbying, it contained help for family immigration beneficiaries.
"The Act contains two measures to address survivors’ issues: (1) self-petitioning rights for all widow(er)s of American citizens and their children contained in section 568(c) of the Act; and (2) certain survivors’ rights for family based, employment based, and other immigrants contained in section 568(d)," Renison wrote.
"The 'widow penalty', whereby spouses of U.S. citizens and their children faced automatic denial of a visa petition if the death of the spouse occurred prior to adjudication and prior to two years of marriage, effectively ended upon the passage of § 568(c). That section removes the two-year marriage requirement from the current law that permits widows and widowers ('widow(er)s') of U.S. citizens to file a self-petition for themselves and their children.
"By removing the two-year precondition to a current statutory program, Congress retained the widow(er) self-petition procedure including the requirement to show a good faith marriage. The law does not alter the rights of widow(er)s who were married two years or more, who have been able to self-petition since 1990.
"The deletion of the two-year marriage requirement will allow a widow(er) who was married less than two years at the time of the citizen spouse’s death to file a Form I-360 self-petition within two years of the law’s passage, or within two years of the spouse’s death, whichever is later."
Do you see any parallels by applying the above to the troubled EB-5 Program? First, when it was writing regulations for the EB-5 Program, USCIS plucked the "two-year rule" from the marriage fraud amendments without any consideration of its impact in the business world. That is the two-year conditional period during which the EB-5
investor must "fully invest" his or her money and create 10 U.S. worker jobs.
I am, of course, using the analogy of a deceased U.S. citizen spouse for my proposition that failed EB-5 investment projects or regional centers are akin to the death of a petitioning spouse.
If an EB-5 investment project fails and I, as a foreign investor, have fully invested my money in good faith, should I be able to self-petition for removal of conditions at the I-829 petition phase? I think it's only fair that I be allowed to do so.
What do you think? Should the federal government give these foreign investors the shaft when they cannot (through no fault of their own) meet all of the requirements for removal of conditions (to the permanent "green card"), or should there be a means to self-petition if an EB-5 investment project or regional center fails?

Dogged reporters cover Atlantic Yards

2011-01-26T15:44:00.001-08:00

One of the largest development projects in the United States trying to take advantage of the EB-5 Program and foreign investment is Brooklyn Navy Yard in the Atlantic Yards development, a multi-phase project of the New York City Regional Center.
Controversy has dogged the development since its announcement.
Barclays Center is to be the new home of the New Jersey Nets, which would be renamed the Brooklyn Nets.
Two of the most dogged reporters covering the project are Matt Chaban of the New York Observer, and Norman Oder, a blogger who announced last September that he was quitting his day job to write a book about Atlantic Yards.

See: http://www.observer.com/site-search?keys=Atlantic+Yards&sa.x=6&sa.y=15

and

http://www.huffingtonpost.com/norman-oder/reuters-nails-lies-by-pro_b_801070.html

Engagement or Dis-Engagement?

2010-12-05T16:42:00.000-08:00

U.S. Citizenship and Immigration Services (USCIS) has an Office of Public Engagement. According to USCIS, "[t]he Office of Public Engagement (OPE) coordinates and directs agency-wide dialogue with external stakeholders. OPE actively collaborates with, and seeks feedback from, stakeholders to inform USCIS policies, priorities, and organizational performance reviews. OPE facilitates open and transparent communication between the Agency, external stakeholders, and the customers they represent by sharing feedback, working with Agency leadership, coordinating follow-up, and reporting back to stakeholders. The Office also works closely with other USCIS offices to support the implementation of highly visible outreach programs and public education initiatives."
OPE has three divisions: the Community Relations and Engagement Division, the Intergovernmental Affairs Division, and the Protocol Division. The first and third divisions are those with which I have had the most "engagement". I must say that Community Relations and Engagement is trying. I have been to a couple of community relations events and it appears USCIS district offices are reaching out to the general public to offer better information about what it does.
What is not working are the stakeholders' "engagements" conducted by the Protocol Division, specifically with reference to a little-known job-creation program that could provide badly needed jobs to out-of-work Americans. As I write this, the national unemployment rate has jumped to 9.8 percent!
Each time USCIS has had an opportunity to choose a way to change the EB-5 Program (as this foreign investor immigrant visa program is called), either via memo or via request for evidence, it has always selected the most restrictive change, thus strangling to death the only immigration-related visa program Congress seems to like and support.
Today, for example, USCIS is misapplying its own regulations and guidance and is denying about one-third of the Form I-829 investor petitions to remove conditions on residence (for the permanent green card). This is not sustainable and will be the death of the EB-5 Program.
I have a recommendation. Toss the word "engagement" and use the word "conversation". "Engagement" has a very military meaning to me as someone with 12 years of prior service in the Army. I prefer the word "conversation." Then let's have a few before this important (and unique) job-creating investor visa program goes down the tubes.

First time USCIS has halted an EB-5 regional center

2010-10-28T07:26:00.001-07:00

By Brooke Edwards of the Victor Valley Daily Press

VICTORVILLE, Calif. • The federal government has terminated Victorville’s foreign investor program, ending the city’s hopes to raise tens of millions of dollars for projects at Southern California Logistics Airport.

It’s the first time U.S. Citizenship and Immigration Services has ever terminated an EB-5 program, agency spokeswoman Mariana Gitmore said by phone Tuesday. She said Victorville hadn’t been able to demonstrate that it meets the criteria to raise funds through the federal program, despite repeated requests for more information.

USCIS approved Victorville’s application as an EB-5 Regional Center in June 2009, allowing the city to solicit $500,000 loans from foreign citizens so long as that money helps create 10 local jobs. In exchange, the foreign lenders are put on the fast track to getting U.S. visas.

USCIS sent the city a rare notice of intent to terminate its EB-5 program in May, raising questions about whether Victorville had misrepresented itself in marketing the program and if projects such as the stalled Victorville 2 power plant are still viable.

The Daily Press has regularly been asking for updates on the status of the program. Most recently, the Daily Press sent an e-mail Monday morning asking whether Victorville had heard back from USCIS. City spokeswoman Yvonne Hester deferred to City Attorney Andre de Bortnowsky, who still hadn’t responded to requests for comment as of Tuesday afternoon.

USCIS sent its final termination notice Oct. 20.

The website www.vveb5.com remained active Tuesday afternoon, still touting Victorville’s EB-5 program even though USCIS ordered any advertisement to stop with its first notice back in May.

Please come to Boston

2010-09-01T16:36:00.000-07:00

The second EB-5 conference presented by the American Immigration Lawyers Association was another huge success. More than 425 people attended the August 27 conference, which is a 30 percent increase over the first conference in San Francisco last October 19.
The panel discussions were very good. It became apparent that the problems the EB-5 Program faces are in some part being created by the federal agency charged with overseeing it, USCIS, and in part by regional centers not playing by the rules.
In large measure, however, it is USCIS that is openly hostile to the EB-5 Program and is not interested in Congress's intent that the EB-5 Program become a job-creating engine. It still sputters, and for reasons that only USCIS knows.
Boston was a great setting for the conference and the Seaport Hotel was a fine facility for this size conference.

EB-5 investors' FAQ

2010-08-12T14:42:00.001-07:00

Q. When was the regional center approved by USCIS, and has it been audited by USCIS?
A. Regional centers that have more recently been approved may have little or no track record of successful immigrant petitions or of job creation. Some regional centers have become inactive, and some have not been audited. Some regional centers that have been audited have seen their approval revoked.

Q. Is the regional center affiliated with any government entity?
A. It can be, but you should look carefully. Does the government entity that has this affiliation have any track record in job creation or economic development? The government entity may have some or no experience in this regard.

Q. How many years of experience do the general partner or principal in the investment project have in working with immigrant investor programs?
A. Although some project developers may have experience with the EB-5 Program, most will not. Do not conflate the regional center with the investment project, if the two are separate and distinct. Such investors invest "through" the regional center and into the job-creating entity (the investment project). Some of the general partners or regional center creators have little or no experience with the EB-5 Program. Others have extensive experience both in the United States and with investor immigrant programs in other countries.

Q. Should I ask how many years of experience the principals involved in the regional center have in job creation?
A. Very good question, and you should ask it. The EB-5 Program is very young, but some of the regional center principals have been involved in job creation and economic development for a long time. Regional center principals who have such experience should be considered in your plan to invest.

Q. Does the regional center investment include direct job creation, indirect job creation, or both?
A. Most regional centers include direct and indirect and induced job creation. A safer alternative is an investment project that relies upon direct job creation only, with a plan to produce an economic impact study showing indirect and induced job creation if needed at the I-829 (removal of conditions) stage.

Q. Can I ask about the regional center's track record -- how many I-526 petitions approved/denied, how many I-829 petitions approved/denied?
A. You would be foolish not to ask these important questions. If the regional center will not provide this information, do not pursue an investment through that regional center. The safest regional centers at this point in time are those that have I-829 approvals, but there are very few of these.

Q. Do I have to deposit or pay a fee to get a copy of the securities offering?
A. Some regional centers charge a deposi, which is applied to the regional center's administrative services fee if you invest. Some regional centers charge a flat fee to receive a copy of the securities offering. Other regional centers charge no fee for the privilege.

Q. What amount do I have to pay to invest?
A. In most regional centers, the investment amount is $500,000. Regional centers generally charge an administrative services fee of from $25,000 to $60,000. America's Center for Foreign Investment typically charges the investor $30,000 for five years of EB-5 compliance services.

Q. Do I make a payment into an escrow account? Is the investment amount refunded if the I-526 is not approved?
A. Most regional centers use escrow accounts to deposit the investor's $500,000 and the regional center's administrative services fee. The provision of an escrow account with the money remaining in escrow until the I-526 petition is approved is a critical security feature for the investor.

Q. Can I redeem my investment following conditions removal?
A. We certainly hope so. With some regional centers, this is fairly certain; with others it is not. Although third-party indemnity insurance contracts are permitted by USCIS, there is that nagging doubt that such contracts may not meet the regulatory “at risk” requirement.

Q. What provisions are made regarding the security of the investment?
A. The federal law governing the EB-5 Program states that your investment is "at risk". You should perform due diligence regarding the likely security of your investment. Professional financial advisors can help you.

Q. What use is made of the investor’s funds? What is the type or types of projects?
A. Regional center investments may involve commercial building projects, condominiums, hotels, film studios, heavy and light manufacturers, warehouses, real estate, and other types of projects.
Q. What form of investment should I invest in? Are there different business models out there?
A. Yes. The most common investment vehicle is a limited partnership that loans money to a job-creating entity. Other forms of investment structure include limited liability companies that may be a partnership, equity investments, venture capital funds, and real estate investment trusts (REITs). These types of projects vary from regional center to regional center.

Q. What has been the rate of return to investors historically?
A. It varies. Usually 2 to 5 percent. Regional centers promising outrageously high returns -- such as 15 to 30 percent -- are probably investments that are too good to be true. Then again, an investment project offering a 2 percent return might be a much safer and more secure investment. Investors may need to balance the importance of immigration track record, security of the investment and rate of return on the investment project's structure For example, a project may have more than a few ways to take you out (i.e., return your $500,000), thus increasing the likelihood that you will get your money back.

Q. Does the regional center provide regular reporting of the status of the investment to the investors, and at what intervals?
A. Yes, the best ones do. You should expect regular reports with an update on the investment project, job creation and new investment opportunities, at least quarterly.

Q. Once I have invested my money, how do I monitor job creation? What steps are taken if the requisite job creation has not occurred?
A. The investor should look for an investment project with detailed job reporting on a regular basis and with a provision that failure to create the required jobs establishes a basis for reinvestment of the proceeds in another project, so as to keep the investor’s immigration and investment process on schedule.

Q. Do you have a lawyer I have to use?
A. Some regional centers require the investor to use the regional center’s lawyer to file the investor petition, and others do not. The regional center’s immigration attorney may provide review and counseling to an investor’s lawyer. A general counsel of a regional center, such as myself, will work closely with the investor's lawyer to insure EB-5 compliance. A few regional centers do this.

Q. Does the regional center’s attorney contact the foreign national directly, or can the referring attorney maintain all contact with the foreign national?
A. With some regional centers, the lawyer deals directly with the investors. With others, even if the regional center’s lawyer handles the investor petition, the lawyer may deal only with the referring lawyer at the referring lawyer's request.

Regional Center applicant calling

2010-08-10T14:26:00.000-07:00

I guess I've heard them all.

Q. "I've practiced immigration law for awhile. How do I do an application for a regional center?"
A. How much time and money have you got?

Q. "Do you have a regional center application I could study?"
A. No.

Q. "Would you please mail a copy of your regional center application to me?"
A. No.

Q. "There's nothing about how to do this anywhere is there?"
A. Not much.

Q. "When I put my regional center application together, where do I send it?"
A. California Service Center, U.S. Citizenship and Immigration Services, Laguna Niguel, CA

Q. "How long does it take to get a regional center application approved?"
A. Plan on six months. With proper exercise of local and state support, maybe four or five.

Q. "Do you have a regional center application I could take a look at?"
A. No.

Q. "Well, that's a bit more than I wanted to spend. Are you sure it's that expensive to do a regional center application?"
A. Yes.

Q. "Why do I have to hire an economist?"
A. Tell me you didn't just ask that question.

Q. "Why do I need a lawyer. Can't I do this myself?"
A. Yes.

Q. "We want to set up a regional center for our condo project. Do you do that?"
A. Yes, but not for condo projects. Call me in three years.

Q. "What kind of regional center do I want to set up?"
A. There are several business models: (1) REIT; (2) loan investment vehicle, usually a limited partnership; (3) equity investment vehicle, a limited partnership, limited liability company, or corporation; (4) venture capital fund; (5) EB-5 compliance consulting service company.

Q. "Where do I find investors?"
A. You will have to spend a considerable amount of your time and money to find investors. You might look in China, South Korea, and India.

Q. "Do I need to do a background check on investors?"
A. No, but it might be prudent to do so. Once source for this is ChoicePoint.

SEC nixes finders' fees

2010-07-15T11:36:00.000-07:00

What was, essentially, a blow to EB-5 project marketing efforts -- in the United States and overseas -- was issued by the Securities and Exchange Commission (SEC) in the form of denial of a request for a "no-action" letter.

Brumberg Mackey & Wall, PLC, (BMW) sought to assist a client in raising money for its business interests, and asked whether it could take a percentage of funds raised without registering with the SEC as a broker or deal.

The SEC said no. "[T]he Staff believes that the receipt of compensation directly tied to successful investments in [the client's] securities by investors introduced to [the client] by BMW (i.e., transaction-based compensation) would give BMW a "salesman's stake" in the proposed transactions and would create heightened incentive for BMW to engage in sales efforts. Accordingly, the Staff believes that your proposed activities would require broker-dealer registration."

Speaker's notes

2010-07-12T16:09:00.001-07:00

Here are my notes from the EB-5 panel discussion on July 3 at the annual conference of the American Immigration Lawyers Association in National Harbor, Maryland.

Choosing a regional center

Client Issues

I get a call. Caller says, "Boyd, I have a client who is not truly a high-wealth individual, but he tells me he can qualify as an accredited investor, and he has almost gathered all of the $500,000 he will need to invest in a TEA (that is, a targeted employment area) or a rural area? What have you got?"

Wait a second now, I say. Hold on. First you've got to help your client decide whether he wants to be in the regular EB-5 Program, which doesn't involve a regional center or indirect job creation. In that case your client would invest the $500,000 in a "new commercial enterprise," which means established after November 29, 1990, or a troubled business, or expansion of an existing business, or reorganization of an existing business so that a new entity results. And he would have to create or preserve 10 direct jobs within two years of being admitted to the United States as a conditional resident or adjusting status. He would also have to prove that he was involved in the day-to-day operations of the business. And he would have to invest in a TEA.

If your client wants to select an investment project through a regional center, she needs to understand that the main feature is the indirect and induced job creation. This feature, through the use of computer-based economic impact methodologies such as RIMSII, IMPLAN, REMI and ReDyne, allows the regional center to show the creation of indirect and induced jobs. Because of Congress's specific endorsement of limited partnerships, most active regional centers use them as the investment vehicle. As long as your client discharges his duties, responsibilities, and obligations (which are not many) under the Uniform Limited Partnership Act, he's fine.

Attorney's Role

The attorney's role is to do due diligence and represent his or her client zealously. This means it's not the lawyer's job to steer the client to a particular investment or to a particular regional center. There are a number of good regional centers out there committed to due diligence themselves, transparency, and conservative adherence to time-tested approaches to EB-5 investment projects. If they are out there, you will find them and grill them about these issues. There are good stockbrokers and financial analysts who should be consulted about these securities. There are also a few regional center experts who have made it their business to learn as much as possible about active regional centers around the nation.

Regional Centers

Regional Center Approval vs. Project Approval

Some regional center applicants use the approach of filing real business plans and real securities offerings and are essentially investment project -centric. Other applicants use exemplar investment projects or "hypothetical" investment projects in order to show what the regional center would do if approved by USCIS. Recently I have seen a number of puzzling RFEs that request alarming amounts of specific information about both real and exemplar investment projects, indicating that certain USCIS officers are conflating "project" and "regional center". And questions about indirect and induced job creation are stated in such a way that the California Service Center officers are scaring me.

They do not appear to know how this is done, which mirrors the most recent financial crisis on Wall Street, when few knew what collateralized debt obligations or credit default swaps were.

From the 21st Century Department of Justice Appropriations Authorization Act, dated Nov. 2, 2002

"A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have."

With the release of the December 11, 2009, Neufeld memo addressing a number of controversies surrounding the EB-5 Program and the Service's apparent hostitility toward it, we learned that there was finally a mechanism for pre-approval of EB-5 investment projects, but it will be -- at least for the time being -- limited to regional center projects.

Different Business Models

Loan or debt, equity, venture capital fund, real estate investment trust, and what was a new model in 2007 that has since been replicated, an EB-5 compliance consulting services company. Some regional centers are project-centric, meaning that all they're doing is a resort hotel, or warehouses, or a six-block area in Chinatown.

Loan or Debt

This seems to be the preferred model of regional centers because it can be more easily structured to meet the needs of the investors and the requirements of the EB-5 Program. When paired with a limited partnership business form -- which was specifically authorized by Congress in the 2002 amendments to the EB-5 Program -- I think this structure is an unbeatable combination. As long as the investors discharge their duties, responsibilities and obligations under the Uniform Limited Partnership Act, USCIS may not challenge this model as a "passive" investment.

Equity

Which is to take nothing away from the equity model. Certainly, if so structured, an investor could take an equity interest in a regional center investment project, including stock, preferred or common, or another type of equity interest, and receive dividends or other distributions over the life of the equity investment. I am concerned whether discharging one's duties as a shareholder, however, is sufficiently active to remove this type of investment from the "passive" category.

Venture Capital Fund

Several prominent regional centers are structured as venture capital funds. The fund will typically invest in one or more -- typically more -- projects. A limited partnership can produce documents for investors showing where the money came from, where the money went, and how many jobs were created in the job-creating enterprise. I think the way a venture capital fund does that -- particularly if it spreads investors' capital among a number of projects -- builds complexity into an already complicated process that will probably give USCIS fits at the I-829 petition stage.

Real Estate Investment Trust

A REIT is another model that can work. A major concern is how to defeat or challenge a USCIS argument that a REIT is a purely passive investment. I can imagine that a creative REIT might create steering and investment advisory committees and keep careful minutes of meetings and votes to build some activity into this model.

EB-5 Compliance Consulting Services Company

USCIS had not seen this innovation in a regional center application before I submitted it in late 2006. At that time, because I wanted a statewide regional center, it didn't make sense to limit the regional center to one investment project or one industry or economic sector. This model contemplates a variety of investment projects and project developers through one regional center. It serves as a facilitator between project developers on one hand and investors' and their representatives on the other.

Structuring the Investment

The investor may encounter a problem if she accepts a return on the investment during the two-year conditional residence period. USCIS may challenge the "fully invested" criterion unless your investor has really good accounting information to turn back the challenge. It's probably best for the investor not to take a return on her investment for the two-year conditional period, unless you have good accounting.

Legal issues in conditonal removal petition

When we skip over to 8 CFR 216.6, we see words such as "good faith" and "substantial compliance" and "actively in the process of investing".

The secret to successful prosecution of I-829 petitions? GAAP. Generally Accepted Accounting Principles. And a name-brand accounting firm if you can afford one. The best regional centers use them. Accountants can be relied upon to help your client on both critical points: proof of investment and proof of job creation.

Sustaining investment

8 CFR 216.6(4)(iii) states that the alien investor must present "[e]vidence that the alien sustained the actions described in paragraph (a)(4)(i) (evidence that a commercial enterprise was established by the alien) and (a)(4)(ii) (evidence that the alien inevested or was actively in the process of investing the requisite capital) of this section throughout the period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence. Such evidence may include, but is not limited to, bank statements, invoices, receipts, contracts, business licenses, Federal or State income tax returns, and Federal or State quarterly tax statements.

Creating employment

Focus on the specific requirements stated in 8 CFR 216.6 and analyze what each requirement entails, and if USCIS imposes any additional requirement on top of these specific requirements, that is unlawful and should be challenged in federal court. I would also point out "good faith" and "substantial compliance" now have legal meanings, as well as the apparent requirement that the alien investor invest in the new commercial enterprise entity.

When have some questions that still have no answers:

How long does the investment capital have to stay in the new commercial enterprise entity?

According to the 8 CFR 216.6, the alien investor's capital investment must have been maintained in the new commercial enterprise for two years (the conditional residence period).

Do newly-created jobs have to be in both a TEA and within the geographic boundaries of a regional center area? This controversy was actually created by USCIS during an EB-5 stakeholders' conference call. The USCIS HQ representative opined that even indirect and induced job creation must take place within the geographic boundaries of the regional center. You could hear the collective expletives around the nation, even though no one but USCIS employees and possiibly a non-employee moderator can be heard. On another matter of great concern out there among practitioners is the Neufeld memos issued by USCIS during the past year or so. One colleague who is very knowledgeable concerning the EB-5 Program says the memos are unlawful attempts to create new EB-5 law which is ultra vires to EB-5 statutes and in violation of the existing regulations.

(4) Documentation. The petition for removal of conditions must be accompanied by the following evidence:

(i) Evidence that a commercial enterprise was established by the alien. Such evidence may include, but is not limited to, Federal income tax returns;

(ii) Evidence that the alien invested or was actively in the process of investing the requisite capital. Such evidence may include, but is not limited to, an audited financial statement or other probative evidence;

and

(iii) Evidence that the alien sustained the actions described in paragraph (a)(4)(i) and (a)(4)(ii) of this section throughout the period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence. Such evidence may include, but is not limited to, bank statements, invoices, receipts, contracts, business licenses, Federal or State income tax returns, and Federal or State quarterly tax statements.

Matters concerning what happens if a W-2 submitted on behalf of your investor is that of an alien unauthorized for employment are beyond the scope of this discussion, but you should be aware of it.

AILA EB-5 panel in National Harbor Maryland

2010-07-03T14:09:00.000-07:00

It was my privilege to address a packed ballroom of immigration lawyers Saturday who were eager to hear the latest news about the EB-5 Program and the proliferation of regional centers, which is probably 100 today and destined to grow to 120 or more in coming months.

I was joined by moderator Ron Klasko and panelist Carolyn Lee as we navigated the EB-5 Program from fundamentals to truly arcane. This being the only EB-5 panel during the annual conference of the American Immigration Lawyers Association (AILA).

At the conclusion of the program, I thought the questinos from attendees were very good. Several questions addressed E-2 and L-1 conversions to EB-5 (see my post below), and I suggested that lawyers with clients who wish to pursue this be careful.

I will do this again on August 27 during the AILA EB-5 Investors Conference in Boston. You can register at www.aila.org. Click on "Conferences".

E-2 (nonimmigrant investor) conversions to EB-5

2010-06-22T13:58:00.000-07:00

It came in the form of a direct question from an experienced immigration lawyer. May his client, who has an E-2 (treaty investor) nonimmigrant visa, take money invested in the United States and re-invest it in a regional center investment project?

The answer? Yes, indeed! There is nothing in federal law or regulations regarding the EB-5 Program to prohibit it.

As a matter of fact, I am discussing E-2 conversions to EB-5 with immigration lawyers representing several clients who came here from Iran and India. The investors still have to come up with the minimum investment amount of $500,000. And regional centers typically charge investors from $30,000 to $50,000 for five years of EB-5-related services to help the investors get the permanent green card.

Conversion also makes sense for investors in Canada's similar immigrant investor program who want to put a couple of hundred thousand dollars with their returns from the Canadian program and invest the money in the EB-5 Program in the United States.

These two sources of immigrant investors are generally untapped resources to help create badly needed jobs in the United States.

Having said the above, you should be mindful that this E-2 money is frozen out of the EB-5 Program if a direct investment of even E-2 revenues is used. So you must be very careful to develop new capital and have a good accountant at the ready.

In response to the question: May an E-2 investor grow his business and eventually qualify
as an EB-5, as the business increases in value enough to
meet the EB-5 Investment Threshold?

USCIS responded to the EB-5 stakeholder's question in this manner:

"8 CFR 204.6(e) defines 'capital'.

"Legislative History: S. Rep. 55, 101st Cong., 1st Sess. 5, 21 (1989) twice refers to EB-5 investments as “new capital” that will promote job growth.

"The reinvestment of a commercial enterprise’s revenues cannot be considered part of a qualifying investment. See generally De Jong v. INS, Case No. 6:94 CV 850 (E.D. Texas January 17, 1997); Kenkhuis v. INS, No. 3:Ol-CV-2224-N (N.D. Tex. Mar.
7,2003)."

If USCIS could find more ways to strangle the EB-5 Program, it would. This federal agency demonstrates its hostility toward the EB-5 Program over and over again.

New rules ... finally

2010-04-27T09:48:00.000-07:00

U.S. Citizenship and Immigration Services plans to issue rules to make changes to the EB-5 immigrant classification and to employment verification, according to the agency's semiannual regulatory agenda released April 26.

USCIS is expected to release a notice of proposed rulemaking in July proposing amendments to Department of Homeland Security (DHS) regulations to implement changes made by the 21st Century Department of Justice Appropriations Authorization of 2001. The legislation made various changes to the EB-5 alien immigrant classification.

The EB-5 program allots 10,000 visas per year for aliens and family members whose qualifying investments result in the creation or preservation of at least 10 full-time jobs for U.S. workers.

Applicants must invest between $500,000 and $1 million in “designated regional centers, areas of high unemployment or other qualifying rural areas.”

After five years, the investor and his or her family may obtain U.S. citizenship, subject to meeting all immigration requirements, as required under law.

USCIS is expected to release a notice of proposed rulemaking in February 2011 proposing amendments to regulations governing the types of acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the Form I-9, Employment Eligibility Verification.
The rule is expected to propose removal of several documents from the list of documents acceptable for proof of identity.

USCIS said the effect of the proposed changes would be to improve the integrity of the employment eligibility verification process by simplifying the list of acceptable documents for ease of use by employers, ensuring that the list contains secure and fraud-resistant documents and adding safeguards to the verification process.

Also, final action on an interim rule is expected in September that would correct an error in a 2009 final rule governing the types of acceptable identity and employment authorization documents and receipts for completion of the Form I-9, Employment Eligibility Verification. The error allowed employers to accept expired documents in certain situations.

Under the interim rule published on April 3, employers could no longer accept expired documents. The interim rule also added a new document to the list of acceptable documents that evidence both identity and employment authorization and made several technical corrections and updates.

Frankly, anytime USCIS announces new rules or "guidance" in the form of memos, everyone in the EB-5 stakeholder community thinks, "What are they going to do do us now?"

EB-5 Program sputtering

2010-04-22T20:39:00.001-07:00

The EB-5 Program should be creating jobs like there's no tomorrow, but it's not. Why not? Because it is in the wrong federal agency. U.S. Citizenship and Immigration Services has no economic development mission and is hostile to the EB-5 Program. Only Congress can fix this. 350 investor visas issued during the last federal fiscal year ending October 1. Come on! Surely somebody in Washington is getting this.

Justia

2010-03-16T21:42:00.000-07:00

An excellent law website called Justia has published a link to my blog. Thanks, guys.

http://blawgsearch.justia.com/blogs/categories/immigration-law

Congress needs to step up

2010-03-02T22:39:00.000-08:00

One could blame the perils of the EB-5 Program on the captive, law enforcement bureaucracy that has throttled it thus far. Yes, without a doubt, to a certainty, U.S. Citizenship and Immigration Services (USCIS) and its legacy agencies mismanaged the EB-5 Program since 1990, when Congress passed the law creating the Program. And yes, there are enormous opportunities to create jobs NOW -- TODAY -- without the expenditure of a single taxpayer dollar. But that will not happen.
It will not happen absent action from a paralyzed Congress, which now throttles the EB-5 Program because it will not set it free.
And, of course, action in Congress is a nonsequitur. It is not going to happen. Thousands and thousands of good jobs for Americans will not be created because Congress is paralyzed and cannot act because of lack of bipartisanship to create jobs for Americans. Foreign investment dollars will not flow into the United States under the EB-5 Program because Congress is paralyzed and cannot act.
Same old, same old.
Is there any wonder why I am discouraged?

USCIS Q&A reveals serious problems

2010-02-14T20:43:00.000-08:00

On December 14, 2009, coming hard on the heels of an EB-5 Program memo issued by U.S. Citizenship and Immigration Services (USCIS), the agency issued responses to questions posed by the American Immigration Lawyers Association EB-5 Investors Committee and the Invest in the USA Association.
There was good news and bad news concerning these opinions issued by USCIS.
USCIS confirmed, for the first time, that an EB-5 alien investor may use funds unrelated to his or her EB-5 investment to purchase insurance from a third-party insurer which would be paid to the investor if the EB-5 enterprise fails to repay the investor. Surprisingly, USCIS said the investor could purchase an indemnity policy as long as the investor's capital is "at risk" and the indemnity policy does not constitute a redemption agreement or a guaranteed buy-back arrangement for the
alien investor's investment in the EB-5 enterprise.
A response concerning Targeted Employment Areas (TEA's), which are 150 percent of the national unemployment rate and are designated by a state agency, confirms what appeared in a December 11 USCIS memo concerning the EB-5 Program. USCIS stated that it could not confirm that "gerrymandering" -- a finding of an area of high unemployment by a designated state agency by cobbling together census tracts or political subdivisions -- "is an acceptable business practice for EB-5 purposes." This response is troubling. Designated state agencies are not "frustrating congressional intent," as the USCIS response states. There are huge areas of geography in the United States which, today, during this ugly recession, cannot qualify under the 150 percent of the national unemployment rate because the national rate is near or at 10 percent. This means that in an area not qualified as a TEA, the investor must invest the minimum $1 million, and most -- if not all -- investors
would rather invest the minimum $500,000 in a TEA. USCIS will not allow rural areas within Metropolitan Statistical Areas, designated by these state agencies, to qualify for the lower minimum investment amount of $500,000 either, thus frustrating congressional intent.
USCIS confirmed that there was nothing in the law or regulations to preclude a guarantee from a third party to repay the borrower "as long as the alien investor's capital is still 'at risk', and the arrangement does not constitute a redemption
agreement or a guaranteed buy-back arrangement ...."
Most troubling was the USCIS response on the creation of indirect and induced jobs, which can be used by regional centers to help investors reach the 10 jobs created per investor, a requirement of the EB-5 Program. USCIS has misinterpreted a bad 1998 precedent decision called Matter of Izummi, which recognized, as a factual premise, that direct jobs were being created outside the boundaries of the regional center. Not once did the decision mention "indirect" or "induced" jobs. However, USCIS has issued its opinion, relying upon Izummi, that indirect and induced jobs created outside the geographic boundaries of a regional center do not count for EB-5 purposes. This is outrageous!
"While the regulation at 8 CFR 204.6(m)(3) provides that each reagional center must describe 'how the regional center focuses on a geographical region of the United States,' " the response stated, "USCIS interprets the statutory and regulatory prescribed focus to mean that the economic analysis methodology used by regional centers should also be focused on job creation within the bounds of the regional center. [See also Matter of Izummi.] As a result, a regional center should file an amended proposal seeking an expansion of the geographic area of the regional center if it wishes to include job creation within its economic models in areas outside of the bounds of the regional center."
If this opinion is allowed to stand, it has the potential to kill this job-creation program.
But see the December 11 USCIS memo at page 9, where it states that "Regional Center Proposals must demonstrate the following EB-5 eligibility requirements in order to be approved: ... (iii) A detailed prediction of the proposed regional center's predicted impact regionally or nationally on household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and outside the geographic area of the proposed Regional Center." 8 CFR section 204.6(m)(3)(iv).
Those are the words, right out of the Code of Federal Regulations, which USCIS is bound by.

USCIS memo on EB-5 Program: Problems and Challenges

2010-02-14T19:51:00.000-08:00

On December 11, 2009, U.S. Citizenship and Immigration Services published a memo whose subject was "Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and Form I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38". Whew!
The memo requires the filing of a new (or amended) I-526 petition if there is a change in the capital investment and job creation scheme. If the new I-526 petition is approved, the memo requires the immigrant investor to file a new I-485, application to adjust status, if in the United States. Current immigration law does not require the filing of an I-485 requesting re-adjustment of status.
The memo does set out a "pre-approval process" for regional center investment projects that is very welcome. Pre-approval, based upon a USCIS determinaton that the project is EB-5 compliant, will give investors putting their capital at risk some comfort. It will also have the effect of streamlining adjudication of individual I-526 petitions related to the pre-approved EB-5 investment project.
The memo interprets "direct construction jobs" to count as permanent jobs if they are created by the investment project and "are expected to last at least two years, inclusive of when the petitioner's Form I-829 is filed." The "two-year rule" is an arbitrary one lifted from the "marriage fraud amendments" and has no relationship to business, investment, or construction. Further, the construction industry relies upon "man-hours," not "jobs" or "positions."
The memo's description of Targeted Employment Areas (TEA's) -- areas of high unemployment -- is tortuous. That is why reform legislation needs to designate federally recognized Areas of Substantial Unemployment, currently pegged at 6.5 percent unemployment.

Why USCIS is hostile to the EB-5 Program

2010-02-06T10:12:00.000-08:00

First, U.S. Citizenship and Immigration Services has no economic development mission. USCIS has no economist with experience in working with the EB-5 Program and the job-creation / economic impact methodologies typically used by U.S. economists.
Second, when USCIS issues an official memo concerning the EB-5 Program, we in the EB-5 world know that we are going to get whacked over the head by a two by four. USCIS has no job-creation mission, even though it is the will of Congress that EB-5 be a job-creation program.
So it was no surprise to read the latest memo on the EB-5 Program to emanate from USCIS. The result of its orders to adjudicators in California will put brakes on the program, restrict job creation, and frustrate the intent of Congress once again, in a time of great economic crisis and loss of millions upon millions of jobs across the United States. It's a shame.

Job Creation

2009-12-25T19:47:00.001-08:00

During an EB-5 stakeholders call, I heard an employee of USCIS say that jobs created outside a Regional Center's geographic area do not count (i.e., the jobs cannot be counted toward the 10 jobs that each investor must create, directly, indirectly, or induced, within a Regional Center).
This is astounding! How on Earth could anyone make such a statement with a straight face? If my Regional Center encompasses an area next to a county not within the geographic confines of my Regional Center, and it creates a job there, the job doesn't count? Give me a break!
We are working on some investment projects that are national in scope and create indirect and induced jobs all over the United States.
USCIS had better think through this quickly. Thousands of American jobs are riding on its interpretation of "job creation" within Regional Centers. And, as we all know -- and certainly USCIS should know -- the U.S. economy is not a pretty picture.

America's Regional Center

2009-11-22T09:55:00.000-08:00

There is a move afoot to re-brand the Alabama Regional Center, based upon its expansion into its four sister states.

While a case could be made that it is a Southeastern United States regional Center, the name the regional center will use is America's Center for Foreign Investment.

Proliferation of Regional Centers is not healthy

2009-11-08T19:24:00.001-08:00

At last count -- November 8, 2009 -- there were 73 approved Regional Centers in the United States with dozens more applications pending -- meaning we are on track to have more than 100 Regional Centers by the end of the year.Most of these Regional Centers -- probably more than 95 percent -- will not lure EB-5 investors to their investment projects. The economy is still bad here even though the Asian markets are heating up.What I am worried about is whether we will see wild claims from more and more Regional Centers about their investment projects and about guaranteed returns on investment and guaranteed permanent green cards. We've seen it before and I am afraid we are destined to see it again if, for no other reason, than there are just so many Regional Centers out there trolling for the same pool of investors.

Significance of Alabama Regional Center expansion

2009-11-06T05:03:00.001-08:00

The significance of the Alabama Regional Center expansion is that it is unprecedented and unique, but probably not for long. Multi-state regional centers -- such as the Gulf Coast regional center -- are not unique, but a regional center that has expanded into four contiguous states is. It was a step up for Alabama to seek to cross its state borders, and investment project developers drove the train. Alabama heard from developers in Florida, Georgia, Mississippi and Tennessee that they wanted to use the EB-5 Program and the Alabama Regional Center for partial or full financing but were disappointed that the center's geographic area did not encompass the area where they wanted to do a project. In fact, expansion of the Alabama Regional Center was a no-brainer. It needed to move to the investment activity, so that's what it did.

EB-5 petitions approved

2009-11-01T15:17:00.000-08:00

As of October 31, 2009, Alabama Regional Center Project I, LP, has 9 approved I-526 petitions. One is pending and there are six remaining subscriptions available to close the project -- a manufacturer of affordable, hurricane-resistant modular homes to bring families displaced by Hurricanes Katrina, Gustav and Ivan back to the Gulf Coast. These approvals represent an additional $4.5 million investment in Alabama to create jobs -- and it wasn't done with taxpayers' money! For more information, go to http://www.eb5alabama.com/, or call +334.954.3111.

Alabama Regional Center expansion

2009-11-01T10:23:00.001-08:00

On October 21, 2009, U.S. Citizenship and Immigration Services approved an amended application to extend the Alabama Regional Center's geographical boundaries beyond the state of Alabama.
In addition to Alabama's 67 counties and all 95 counties in the state of Tennessee, the Alabama Regional Center now covers 38 counties in Mississippi, 52 counties in Georgia, and 39 counties in north Florida.