Part IV of Cautions About EB-5 Policy Changes

by Joseph Whalen

While caution is needed on this topic, they might better be characterized as clarifications rather than changes. I am talking about USCIS finally coming forward to define terms that reflect the level of approval sought or awarded and the level of detail required to warrant such approval.

The level of verifiable detail required for a Form I-924 to be approved and provided deference may vary depending on the nature of the Form I-924 filing.


Actual Project

Hypothetical Project

Exemplar

An “actual project” refers to a specific project proposal that is supported by a Matter of Ho compliantbusiness plan. This filing does not contain copies of the commercial enterprise’s organizational and transactional documents, for USCIS to review for compliance with established EB-5 eligibility requirements.

A “hypothetical project” refers to a project proposal that is not supported by a Matter of Ho compliant business plan. This filing also does not contain copies of the commercial enterprise’s organizational and transactional documents, for USCIS to review for compliance with established EB-5 eligibility requirements.

The term “exemplar” refers to a sample Form I-526 petition, filed with a Form I-924 actual project proposal, that contains copies of the commercial enterprise’s organizational and transactional documents, which USCIS will review to determine if they are in compliance with established EB-5 eligibility requirements.

Form I-924 applications that are based on “actual” projects may require more details than a “hypothetical” project in order to conclude that the proposal contains verifiable details and is supported by economically or statistically sound forecasting tools.

Determinations based on actual projects , however, will be accorded deference to subsequent filings under the project involving the same material facts and issues.

If the Form I-924 projects are “hypothetical” projects, general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment.

Determinations based on hypothetical projects, however, will not receive deference and the subsequent actual projects on which the Form I-526 petitions will be based will receive de novo review during the subsequent filing (e.g., an amended Form I-924 application including the actual project details or the first Form I-526 petition filed by an investor under the regional center project). Organizational and transactional documents submitted with a Form I-924 “hypothetical” project will not be reviewed to determine compliance with program requirements since these documents will receive de novo review in subsequent filings.

If in addition to the level of vetting provided for an “actual” project, an applicant desires review of organizational and transactional documents for program compliance, a Form I-924 application with a Form I-526 exemplar should be submitted.

Collateral estoppel should apply to this type of approval provided that there has been no material change such as to void the prior determination, fraud, willful misrepresentation, or a legally deficient prior determination.



In cases where the Form I-924 is filed based on actual projects that do not contain sufficient verifiable detail, the projectsmay still be approved as hypothetical projects if they contain the requisite general proposals and predictions. The projects approved as hypotheticals, however, will not receive deference.

In cases where some projects are approvable as actual projects, and others are not approvable or only approvable as hypothetical projects, the approval notice should contain a statement identifying which projects have been approved as actual projects and will be accorded deference and those projects that have been approved as hypothetical projects but will not be accorded deference.


About The Author

Joseph Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.


The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.