By Bernard P. Wolfsdorf, Esq. & Minjie Xu, Esq.
Background
Processing an EB-5 green card petition can take a very long time. The California Service Center currently reports that they are adjudicating cases filed in March 2012. Anecdotal reports suggest that these lengthy processing times also apply to I-924s (Application for a Regional Center) and I-829s (Petition by Entrepreneur to Remove conditions). Consequently, EB-5 stakeholders are anxious to see some improvement in the EB-5 adjudications arena.
Leahy’s EB-5 Amendment to Immigration Reform Bill
In April, the U.S. Senate released the comprehensive immigration reform bill (known by some as BESSIE MAE). As initially proposed, the bill failed to provide any specific enhancement to the EB-5 program except to make the oft-renewed program permanent. However, during the bill’s markup in the Judiciary Committee, on May 16, Senator Patrick Leahy (D-VT) offered an amendment designed to make significant improvements to the EB-5 Immigrant Investor Regional Center program. This amendment was unanimously approved by the Senate Judiciary Committee.
One of the amendment’s improvements is the ability of EB-5 petitioners to elect Premium Processing (15 day adjudication guarantee) for I-526 petitions for preapproved regional center investments. Functionally, the amendment would allow a regional center to file a petition with USCIS to preapprove a particular investment project before an individual petitioner would file his/her I-526 petition. In order to be preapproved, regional centers would be required to provide: 1) a business plan for a specific capital investment project; 2) investment offering documents; and 3) a credible economic analysis regarding job creation.
This proposed amendment is similar to the current I-924 Amendment petition seeking a preliminary determination of EB-5 compliance for documentation provided as an exemplar Form I-526. (However, currently an I-924 Amendment petition takes a very long time to be adjudicated.) The amendment provides that upon preapproval of the regional center’s business plan, individual Investors may request Premium Processing of their individual I-526 petition.
However, the amendment also proposes Department of Commerce collaboration with USCIS in the adjudication process, which proponents of a streamlined process believe may introduce further delays. Specifically, the amendment provides that the Secretary of Commerce, upon the request of USCIS, shall provide consultation assistance for determining whether a proposed regional center should be designated, terminated, or subject to other adjudicative action, and whether the EB-5 petition has met the job creation requirement.
The amendment further requires that regional centers certify their compliance with securities laws and may foreshadow the Securities and Exchange Commission’s collaboration on regional center adjudication. As an EB-5 offering involves purchase and sale of securities, legal compliance certification could create civil and/or criminal liability for regional centers who run afoul of U.S. securities laws as well as imperil the green cards of individual investors in such programs.
Efforts of new EB-5 office
USCIS opened its new EB-5 office on May 6, 2013 in Washington DC, and has begun to move cases from the California to the DC office. Dan Renaud—the new EB-5 program chief—announced that the new office, consisting of a variety of disciplines, is very interested in streamlining EB-5 adjudications and in looking to allow applicants to use the new Electronic Immigration System (ELIS) for I-526 petitions. Under the ELIS, individual investors would be able to set up an online account, electronically submit the I-526 form, pay the filing fee, and later access real-time information about their case status. After they open their account, they may submit the supporting evidence for the petition using their ELIS account, and indicate the regional center project which they invested in. In terms of the project related documents, USCIS would create a “library” where each regional center can upload their project documents. This will not only significantly reduce the paperwork the attorney and USCIS need to process, but also enhance the consistency for dozens or hundreds of petitions filed for the same project. Attorneys and environmentalists will be very happy as we will no longer have to print out literally pounds of exactly the same paperwork for each petition that is part of the same project.
Update: On May 23, 2013, USCIS will hold an engagement regarding the new ELIS system for EB-5 applications. The EB-5 online submission is coming!
Conclusion
We praise these proposed efforts on faster processing of EB-5 petitions. Surprisingly, both the legislation and USCIS have discussed dividing the I-526 adjudication into two parts, the project and the investor, each will be handled by economists or adjudicators respectively. This should be a new and positive trend for EB-5 adjudication, and the ELIS system will definitely facilitate this new process. However, the involvement of the Department of Commerce and possibly the SEC, although intended to ensure the compliance of laws, may adversely affect any gains to streamlined EB-5 processing.
