No announcement yet.

Article: Recap of USCIS’ Listening Session on EB-5 Immigrant Investor Program By Bernard Wolfsdorf and Joseph Barnett


  • Article: Recap of USCIS’ Listening Session on EB-5 Immigrant Investor Program By Bernard Wolfsdorf and Joseph Barnett

    Recap of USCIS’ Listening Session on EB-5 Immigrant Investor Program



    On July 13, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) held a listening session with stakeholders to hear feedback concerning the EB-5 Immigrant Investor Regional Center Program. USCIS requested comment specifically on the EB-5 Regional Center lifecycle, the EB-5 project exemplar process, the recent implementation of EB-5 site visits, and the use of indirect job creation methodologies. The listening session was limited to these subjects and other proposed changes “to increase predictability and transparency in the adjudication process for stakeholders, to improve operational efficiency for the agency, and to enhance program integrity,” as indicated in the Advanced Notice of Proposed Rulemaking on the EB-5 Immigrant Investor Regional Center Program posted in the Federal Register on January 11, 2017.

    Listening in to stakeholders’ comments and suggestions on EB-5 regulatory and operations revisions and policy issues were Chief Julia Harrison, USCIS’ Immigrant Investor Program Office (“IPO”) Deputy Chief; Laurie McKenzie, IPO’s Division Chief of Policy & Performance Division; and Kathy Nuebel Kovarik, USCIS’ Office of Policy Strategy Chief. No answers or substantive responses were provided to any questions, comments, or suggestions.

    Stakeholders may submit additional written comments to IPO by sending an email to with the subject heading “Listening Session Feedback”.

    Below is a recap of the public comments received during the listening session on each subject:

    EB-5 Regional Center Lifecycle

    Numerous comments discussed the need for greater clarity on USCIS’ requirements for initial designation, maintenance, and termination of an EB-5 Regional Center designation that could increase predictability and strengthen the quality of applications to reduce adjudication processing times. Suggestions included:

    • Written guidance for a Regional Center’s responsibility to “engage in proper monitoring and oversight of the capital investment activities and jobs created or maintained,” as indicated in certain Regional Center Notices of Intent to Terminate (“NOIT”), with consideration that Regional Centers may not have any operational or financial control over a job-creating entity.
    • More stringent requirements to obtain Regional Center designation, including a better demonstration by applicants of capability and experience to operate a Regional Center in accordance with USCIS regulations.
    • Written guidance on how a Regional Center wishing to “wind down” and stop sponsoring new EB-5 investment projects may maintain its designation without new Form I-526 filings, to protect EB-5 investors against any undue hardship. Requiring a Regional Center to provide written notice to IPO on its intent to “wind down” was also suggested.
    • Better and more-often communications and interaction with IPO on non-case-specific policy issues, so that I-924 applications are better.
    • Re-thinking of a Regional Center designation as a “license” for which applicants must meet certain requirements for initial and continuous designation.
    • Issuing an initial 5-year Regional Center lifecycle to provide more predictability to businesses wishing to use designation, with on-going renewal requirements every 3 years to maintain Regional Center designation.
    • Whether IPO using finite resources to issue NOITs to Regional Centers without I-526 applications on file is the best use of resources. One commentator noted that IPO should focus more resources on actual EB-5 project offerings and issues of fraud, misuse of funds, or project failure/change, as opposed to non-use.
    • More consistent issuance of NOITs to Regional Centers. An attorney mentioned that one of her Regional Center clients received a reaffirmation after responding to an initial NOIT, only to be issued another NOIT a couple of months later. She also mentioned that in a separate case IPO issued a second NOIT without providing any feedback on the Regional Center’s response to an initial NOIT.
    • Need for the re-opening of denied I-526 applications if a Regional Center’s who motion to reopen/reconsider or appeal of a NOIT is successful.

    Stakeholders generally agreed that reforms to the EB-5 Regional Center lifecycle need to occur to ensure integrity and continued commercial viability of the EB-5 Program. They also noted the significance of the manner in which USCIS creates and implements those reforms, such as prior notice and a public comment period. One commenter indicated that any information influencing USCIS’ reforms should be issued for prior review and comment on its website. Another commentator smartly noted the importance of a “transition period” for the EB-5 industry and foreign nationals to respond and reasonably transition to meet new guidelines or regulations. Numerous stakeholders referenced the need for USCIS to consider of how its’ unruly concept of “material change” could adversely affect U.S. companies and investors from meeting their business and immigration goals prior to implementation of any policy or adjudication changes. USCIS has the ability to increase the integrity EB-5 Program not just substantively, but also administratively.

    Exemplar Process

    A majority of the commenters indicated that a mandatory exemplar approval process would benefit the EB-5 Program’s integrity and help ensure that only approvable EB-5 offerings are placed in the market, but also that IPOs current adjudication processing delays (currently at 21 months for I-924s) make this option commercially unviable. Comments regarding the exemplar process included:

    • Mandatory 90- or 180-day adjudication timeline for I-924 adjudications. One commenter mentioned that EB-5 capital financing would become significantly more attractive to U.S. companies based on these processing timelines.
    • Separate adjudication tracks or queues for different types of I-924 filings: (1) initial Regional Center designations based on hypothetical projects; (2) initial Regional Center designations based on actual “Exemplar” projects; (3) amendments to Regional Center designations based on hypothetical projects; (4) amendments to Regional Center designations based on actual “Exemplar” projects; and (5) amendments to Regional Center designations for small changes (which should not require another $17,795 filing fee).
    • Consideration of USCIS’ current “nexus” requirement for temporary bridge financing for shovel ready projections and use of the EB-5 capital, as well as issues of “material change” between the time of I-924 exemplar filing and I-526 filing.
    • Ability for EB-5 projects to amend project documentation to meet USCIS’ new policy on the “sustainment period” and to repay EB-5 capital without it rising to the level of “material change” which would require EB-5 investors who haven’t obtained conditional permanent residency to refile I-526.
    • Reallocation of IPO resources to approved I-924 applications quicker, with the goal that EB-5 project approvals would speed up I-526 adjudications as well.
    • Elimination of Regional Center geographic restrictions announced December 2016 which has increases the number of I-924s.
    • Elimination of “hypothetical” Regional Center applications. In response, another commenter noted the flexibility that “hypothetical” projects provide U.S. companies for more complex development projects, especially considering USCIS’ processing timelines and “material change” policy.
    • Use of a Premium Processing option for I-924 applications

    USCIS has the ability to increase the integrity and viability of the EB-5 Program not just substantively, but also through modified adjudication practices which consider the business realities surrounding the raise of EB-5 capital, the requirements for bridge-financing, and USCIS’ concept of “material change”. ,

    EB-5 Site Visits

    USCIS was “not in a position to provide specifics” on the number of EB-5 site visits that have taken place to date, though commentators mentioned they were occurring. Suggestions on EB-5 site visits included:

    • Publication of specific inspection module items for site visits, as starting point, for EB-5 projects and Regional Centers to be prepared and make site visit as smooth as possible.
    • Ensure site inspectors understand role and obligations of various EB-5 components, such as Regional Center, New Commercial Enterprise, Job Creating Entity, EB-5 investor.
    • One commentator indicated that USCIS could contact EB-5 investors as part of a site visit to ensure information being provided by EB-5 project is accurate.
    • Publication of results of EB-5 site visit for benefit of Regional Center and EB-5 investors

    Indirect Job Creation

    By far, the subject with fewest comments was indirect job creation. Statements included:

    • Publication of all accepted economic models for indirect and induced job creation.
    • Rethinking the need for additional evidence that indirect jobs created, or to be created, are full time, due to the nature of accepted job creation modeling practice


    In conclusion, we are happy to see that USCIS is attempting to engage EB-5 stakeholders to resolve or clarify critical issues for increased integrity and viability of the EB-5 Program. We hope are hopeful that USCIS’ reforms are implemented in a manner which provide clarity and predictability for U.S. companies and EB-5 investors.

    This post originally appeared on Wolfsdorf Immigration Law Group. Copyright © 2017 Wolfsdorf Connect - All Rights Reserved.

    About The Author

    Bernard Wolfsdorf Bernard Wolfsdorf is the managing partner of the top-rated law firm, Wolfsdorf Rosenthal LLP (, and the past national president of the 14,000-member American Immigration Lawyers Association (AILA). Established in 1986, Wolfsdorf Rosenthal LLP is known worldwide for providing exceptional quality legal services. With 19 lawyers and offices in Los Angles and New York, the firm was recently listed as a top-tier immigration practice by Chambers & Partners with several of the firm's attorneys listed in the 2015 International Who's Who Legal. Mr. Wolfsdorf specializes in EB-5 investment immigration in addition to the full range of global immigration matters. Joseph Barnett is an Associate Attorney at Wolfsdorf Rosenthal LLP and a member of the firm’s EB-5 and business immigration practices. He is licensed as an attorney in Illinois and Wisconsin and practices exclusively in immigration and nationality law.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

      Posting comments is disabled.





    There are no tags yet.

    Latest Articles


    • Article: The EB-5 Immigration Program and the Investors Process By H. Ronald Klasko

      If you are having difficulty viewing this document please click here.

      08-20-2018, 08:15 AM
    • Article: Immigration Judges’ Union Fights for Judicial Independence By Karolina Walters
      Immigration Judges’ Union Fights for Judicial Independence by Karolina Walters The National Association of Immigration Judges (NAIJ), the union that represents the nation’s immigration judges, is challenging the government’s decision to remove an immigration judge from a well-known case and replace him with a judge who immediately ordered the immigrant in the case deported. NAIJ’s grievance addresses the treatment of one immigration judge, but its resolution will have implications for judicial independence throughout the entire immigration court system. The grievance was filed on behalf of Philadelphia-based immigration judge Steven A. Morley, who was presiding over the case of Mr. Reynaldo Castro-Tum. Castro-Tum’s case rose to national importance earlier this year when Attorney General Jeff Sessions chose to refer the case to himself to reconsider the Board of Immigration Appeals’ previous decision in the case. In reconsidering the decision, Sessions effectively eliminated judges’ use of administrative closure, a docket management tool. Sessions sent Castro-Tum’s case back to Judge Morley, noting that the immigration court order Castro-Tum removed if he did not appear at his next hearing. Castro-Tum did not appear at the next hearing. However, Judge Morley continued the case to resolve whether Castro-Tum received adequate notice of the hearing. Due process requires, at a minimum, that an individual be given notice of proceedings and an opportunity to be heard by a judge. But before the next hearing could take place, the Executive Office for Immigration Review (EOIR) replaced Judge Morley with an Assistant Chief Immigration Judge who ordered Castro-Tum removed when he did not appear at court again. In their grievance, NAIJ asserts that the decision to remove Judge Morley from Castro-Tum’s case and reassign many other cases from his docket resulted in unacceptable interference with judicial independence. The grievance specifically claims that EOIR’s actions violate immigration judges’ authority under the regulations to exerci...
      08-17-2018, 11:12 AM
    • Article: Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico By Sophia Genovese
      Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico by Sophia Genovese The Trump Administration is seeking to create and implement a safe third country agreement with Mexico . Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating both international and US asylum law. In particular, the US would be violating the international principle of non-refoulement , which provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” where Mexico has a proven track record of being anything but safe for asylum seekers . The US has also codified Article 33(1) of the Refugee Convention into Section 208(a)(2)(A) of the Immigration and Nationality Act (INA) which provides that it will not return an asylum seeker to his or her country of origin, but may, at the determination of the Attorney General, remove the asylum seeker to a “safe third country… where the [asylum seeker] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Although Mexican officials have not yet indicated whether they would sign a safe third country agreement with the US, asylum advocates should proactively seek to prevent such a devastating policy with a country that lacks adequate asylum protections. As reported by Human Rights First and Amnesty International , 75 percent of asylum seekers apprehended and detained by the National Institute of Migration (INM), the Mexican immigration enforcement agency, were not informed of their right to seek asylum. Even if asylum seekers are able to make their claims, only 30% of the asylum proceedings are ever concluded , and even fewer are granted, leaving many bona fide asylum seekers stranded without a resolution. The treatment of unaccompanied minors’ asylum claims in Mexico are even more dismal. Of the 35,000 minors apprehended by the INM in the first half of 2016, only 138 were able to apply for asylum , of which only 77 were granted protection. Beyond the failing asylum system in Mexico, asylum seekers are also in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians. A safe third country agreement with Mexico would violate the United States’ international obligations under the 1967 Optional Protocol to the Refugee Convention, to which we are a signatory, which adopts by incorporation the obligations outlined in the 1951 Refugee Convention, to which the US is not a signatory. Take the example of an asylum-seeker, Mrs. H, who is fleeing politically-motivated violence in Honduras. Her husband, Mr. H, was a vocal political activist who opposed the National Party and members of the Honduran government. Mr. H began to receive death threats due to his political beliefs and reported such threats to the authorities. The authorities, however, di...
      08-16-2018, 02:32 PM
    • Article: Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence By Eugene Goldstein, Esq.

      Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence


      On August 9, 2018 USCIS published a “Policy Memorandum” restricting the 20-year-old calculation of Duration of Status (D/S) for F-1, J-1 and M-1 entrants (and their derivative families).

      USCIS also published an announcement (hereinafter “announcement”) “USCIS Issues Revised Guidance on Unlawful Presence for Students and Exchange Visitors , and a general discussion “Unlawful Presence and Bars to Admissibility” ...

      08-15-2018, 12:57 PM
    • Article: Update On Express Entry Immigration To Canada By Edward C. Corrigan and Selvin Mejia
      Update On Express Entry Immigration To Canada by Edward C. Corrigan and Selvin Mejia On January 1, 2015 the Federal Conservatives introduced significant changes to Canada’s economic immigration program. Formerly called the Skilled Worker program the new program was re-branded as Express Entry which included Skilled Workers, the Federal Skilled Trades program, and the In-Canada Experience Program. Canada modelled its revamped economic immigration program on New Zealand’s. There is also an Atlantic Immigration program. In addition there is a separate Live-In Caregiver program where individuals can apply for Permanent Residence after two years employment in this category. EXPRESS ENTRY The initial object of the changes was to create a list of Applicants where the Federal Government could select the best and the brightest from the list of Applicants. The Express Entry was supposed have applicants who had an approved Labour Market Impact Assessment (LMIA) and a valid job offer from an approved Canadian Employer. Under the Comprehensive Ranking System (CRS) candidates were award 600 points for having an approved job offer. Applicants would have achieved a point score of around 1,000 with the 600 points for having a valid offer of employment under the CRS. The provinces in Canada were also allowed to select Applicants according to their economic needs and these applicants that were selected through the respective provincial nominee programs by a province were awarded 600 points to be added to their score. Ontario also has a program where graduates from an Ontario University with a Master’s or who were in a PhD. program would be approved and awarded 600 points which virtually assured that they would be approved and provided with an invitation to apply. There is a quota that governs this graduate program. LABOUR MARKET IMPACT ASSESSMENTS Things did not go according to plan with Federal Express Entry. Very few Applicants were able to attai...
      08-14-2018, 12:50 PM
    • Article: USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants In Great Jeopardy By Cyrus D. Mehta
      USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants In Great Jeopardy by Cyrus D. Mehta The USCIS finalized its unlawful presence policy for F, J and M nonimmigrants on August 9, 2018. The final policy makes no significant changes from the draft policy of May 10, 2018. My earlier blog noted the flaws in the draft policy, which persist in the final policy. The final policy incorrectly breaks down the distinction between violating status and being unlawfully present in the US. As of August 9, 2018, F, J and M nonimmigrants who have failed to maintain nonimmigrant status will start accruing unlawful presence. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II) . Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1). Prior to August 9, 2018, foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. This will no longer be the case. Under the new policy effective August 9, 2018, any status violation will start the accrual of unlawful presence. The nonimmigrant will not be provided with any formal notice of a status violation, and any violation from the past that has been discovered would have already started the accrual of unlawful presence. According to the pol...
      08-14-2018, 10:51 AM