Uncertainty reigns because USCIS takes wrong turns

That's how it happens too often in the bunker that is U.S. Citizenship and Immigration Services.  The "customers" are the enemy.  The permanent party (USCIS employees) are the oracles of all truth and light.  In their bureaucratic world, there can be no bright line tests.  "We handle these issues on a 'case-by-case basis'."
Where do they learn to talk like that?
If their actions and decisions were inconsequential, I wouldn't care, and neither would anyone else, but they're not.  Sometimes their actions and decisions have devastating consequences for law-abiding U.S. citizens, foreign nationals, their families and their businesses.  In the EB-5 arena, their actions and decisions can cost businesses owned by U.S. citizens millions of dollars and cause the layoffs of hundreds of U.S. workers.
During the past three or four years, USCIS has rarely made a decision or pronouncement that led to an improvement in its mismanagement of the EB-5 Program.  In most cases, the opposite was true.
That's why it is so vitally important that the USCIS director hire someone to run the EB-5 Program who has high intelligence, vision, strong leadership skills and the communication skills to explain to immigration service officers occupying the bunker to draw some bright lines for the regional centers, immigration lawyers and various economists and consultants active in the EB-5 Program.
We also need someone who will listen and try to understand why we have so little confidence in USCIS.  Most deputy directors I have seen in Washington conference meeting rooms look like they just want to get our of there, which is probably true.
Personnel is policy.  Remember "Brownie, you're doing a heckuva job"?
The wrong person in the wrong job can get lots of people killed or cause chaos in a little-known immigrant visa program that could create 100,000 or more direct, indirect and induced jobs for U.S. workers every fiscal year!
I caution, however, that this person needs to be appointed to a position that is co-equal with the position of deputy director so he or she cannot be easily canned.  They did it in 2008 and they'll do it again.  If that is not done, the person will have zero clout and get nowhere.  The permanent party deputy directors within USCIS will marginalize the person otherwise.  They have never liked the EB-5 Program -- largely because they don't understand it and because problems (and misinterpretations of regulations and guidance) pop up from time to time -- and they would like to see it go away.
The way to bring this chaos to near normal is to hire a strong leader for the EB-5 Program who understands commerce, the U.S. economy, economic development, job-creation, business realities, banking, and finance.
We've heard a lot of talk out of USCIS in Washington, but very little action other than taking good meetings.  Nothing is accomplished by "taking good meetings."  It's like the TSA show at the airport:  security theater.
More on this subject in part two, when we get down to the nitty-gritty of three hot buttons:  bridge loans, tenant occupancy and "nexus."

Increased use of EB-5 clear in new USCIS report

In a report dated October 26, 2012, USCIS reported greater usage of the EB-5 Program.
For the federal fiscal year ending September 30, 2012, USCIS reported that there were 6,041 I-526 petitions filed for the temporary EB-5 visa.  Of those, 3,667 I-526 petitions were approved and 957 were denied.
For the same period, USCIS reported there were 712 I-829 petitions filed for the permanent green card.  Of the total I-829 petitions then pending, USCIS approved 736, and denied 60.
Contrast this with federal fiscal year 2011, when 3,805 I-526 petitions were filed, 1,571 approved, and 372 denied.  I-829s that year?  2,345 filed, 1,067 approved, and 46 denied.
The agency is not close to the 10,000 visa cap yet, but the Department of State has warned that it may have to allow Chinese applicants to "retrogress", causing delays (not long, but delays) in visa issuance.  Please see the entry below for more about that.

Visa Bulletin contains visa cap advisory for China

The Department of State's Visa Bulletin for November, 2012, contains the following advisory:

"The following advisory is based strictly on the current demand situation.  Since demand patterns can (& sometimes do) change over time, this should be considered a worst case scenario at this point.

"It appears likely that a cut-off date will need to be established for the China Employment Fifth preference category at some point during second half of fiscal year 2013.  Such action would be delayed as long as possible, since while number use may be excessive over a 1 to 5 month period, it could average out to an acceptable level over a longer (e.g., 4 to 9 month) period.  This would be the first time a cut-off date has been established in this category, which is why readers are being provided with maximum amount of advance notice on the possibility.

"The above projections for the Family and Employment categories are for what could happen during each of the next few months based on current applicant demand patterns.  The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables which can change at any time.  Those categories with a “Current” projection will remain so for the foreseeable future, with the possible exception of the China Employment Fifth preference category mentioned above."

Immigrant visas for China may retrogress

Visa office predicts possible retrogression of EB-5 visas for China in second half of FY 2012

Charles Oppenheim, Chief, Visa Control and Reporting at the Department of State's Visa Office, spoke at the Invest in the USA (IIUSA) EB-5 conference held on October 15-16, 2012, in Washington, DC. Among other things, he noted that 7,641 EB-5 visas were issued in fiscal year 2012, a record high. Of that total, 80 percent went to EB-5 investors from China. EB-5 visa numbers may be just as high in FY 2013, he said, adding that EB-5 numbers for China in the second half of FY 2012 may need to be retrogressed because of country cap limits.

Why so long?

USCIS processing times were released, and the California Service Center reported that it takes eight months to process an I-526 petition by an EB-5 alien investor.  Eight months!  I know for a fact it is taking CSC longer -- in many cases more than a year -- to process I-526 petitions.
Eight months or more is disgraceful!
CSC reported that it takes one month to process an L-1 (intracompany transferee) visa cases and two months to process an E-2 (treaty investor) case.
There is $500,000 minimum behind each I-526 petition that could be invested in an American business and create jobs, but USCIS seems quite comfortable to drag its feet.
A former USCIS employee told me that the more employees USCIS trains and devotes to a given type of visa case, the longer the processing time.  That's counter-intuitive, but it is so true.

OFAC licenses no longer required for Iranian EB-5 investors

When they are published Monday, Oct. 22, new federal Iranian Transaction and Sanctions Regulations will no longer require licenses from the Office of Foreign Assets Control (OFAC) giving permission for Iranian investors to transfer funds to the United States from Iran.
I am still studying the new regulations, but they do say, in pertinent part:
"U.S. persons are authorized to engage in all transactions necessary to export financial services to Iran in connection with an individual's application for a non-immigrant visa under category E-2 (treaty investor) or an immigrant visa under category EB-5 (immigrant investor), provided that any transfer of funds pursuant to the authorization set forth in this paragraph is effected in accordance with [section] 560.516.
"In the event services are exported under [the] paragraph [above] ... in connection with an application for an E-2 or EB-5 visa that is denied, withdrawn, or otherwise does not result in the issuance of such visa, U.S. persons are authorized to transfer, in a lump sum back to Iran or to a third country, any funds belonging to the applicant that are held in an escrow account during the pendency of, and in connection with, said visa application, provided that any transfer of funds pursuant to the authorization set forth in this paragraph is effected in accordance with [section] 560.516."
Section 560.516 states:
"United States depository institutions are authorized to process transfers of funds to or from Iran, or for the direct or indirect benefit of persons in Iran or the Government of Iran, if the transfer arises from, and is ordinarily incident and necessary to give effect to, an underlying transaction that has been authorized by a specific or general license issued pursuant to, or set forth in, this part and does not involve debiting or crediting an Iranian account.
"U.S. registered brokers or dealers in securities are authorized to process transfers of funds to or from Iran, or for the direct or indirect benefit of persons in Iran or the Government of Iran, if the transfer arises from, and is ordinarily incident and necessary to give effect to, an underlying transaction that has been authorized by a specific or general license issued pursuant to, or set forth in, this part and does not involve debiting or crediting an Iranian account."
I am still studying these new regulations (which run to 193 pages, by the way) but they appear to allow an EB-5 investment project to obtain a general license, which would obviate the need for specific OFAC licenses for Iranian EB-5 investors.
I will write more about this startling event later after I have digested all of the regulations.  If the regulations are evidence of a policy shift on Iranian sanctions, it appears that the federal government wants to extend a friendly hand to private investors (most of whom love America) while getting tougher on the Iranian government.  Another factor is that OFAC licenses are taking more than six months to get from Treasury.  When I got my first one in 2009, it took two weeks.

Pilot program extended for 3 years

I guess that's okay and the EB-5 Immigrant Investor Pilot Program has been "extended" -- miraculously -- for another three years is considered a big deal.  I don't.
The Immigrant Investor Pilot Program is the longest lasting federal pilot program in history.
It is good for America.  It is good for America's economy.  Why the immigrant investor program has not been made permanent by Congress is an unadulterated mystery.