Post Policy Memo Changes to RC Designation Letters

by Joseph Whalen

According to the information gleaned from a June 11, 2013, Regional Center Designation Letter, USCIS has truly begun to apply the changes outlined in the May 30, 2013 “Final” EB-5 Adjudications Policy Memo. There are a few significant changes. The general notes indicated that a change in industries or geographic boundaries would require an amendment have been removed. Critical assumptions gleaned from the business plan and associated economic impact analysis have been neatly listed in the Notice as have the job creation estimates.

In addition, USCIS makes it very clear that this particular project was approved as a “hypothetical” and as such will not be given deference at this time. USCIS goes on to explain that IF a real project based on the approved hypothetical is presented with the initial I-526 petition and survives deeper scrutiny as to the final details and transactional documents, THEN subsequent I-526s that are substantially the same (no bait and switch or material changes are involved) will be given deference on these settled matters.

The final major difference that I wish to point out at this time (after only one quick reading) is the clarification about at least one issue that would demand an amendment. Towards the end of this “Initial” Designation Letter, USCIS plainly and clearly states:

“The regional center designation is non-transferable, as any change in management of the regional center will require the approval of an amendment to the approved regional center designation.”

I am glad to see that last clarification because far too many folks have quite incorrectly and inappropriately stated that one can buy and sell a Regional Center. When I have publicly challenged that notion I have been met with disbelief and hostility. Well, “I told you so!”

That’s my two-cents, for now.

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.