Comment: USCIS Is Deaf

Many in the EB5 industry are looking for clarity from USCIS at its listening session on April 29, especially on the “Redesignation” requirement for Regional Centers. Such hope is misplaced. USCIS has already tipped its hand on what it intends to do: it is planning to insist on Redesignation of existing Regional Centers which will shut down the EB5 Regional Center program for at least 2 years. USCIS has a shameful record of massive processing delays and the requirements of the new EB5 law give them plenty of fig leaves to keep pushing back how long they will take to finish the Redesignations - no matter how quickly they promise to process the applications – USCIS’s sorry track record on processing times is a matter of fact.

USCIS has made it crystal clear that April 29th is a “listening session” to listen to stakeholders not a “talking session”. It is folly to expect USCIS to say something, when USCIS openly announces that it wants to listen, not talk. USCIS has now been sued on Redesignation, and a hearing before a Federal judge is scheduled for next week. Attorneys for USCIS will properly forbid anyone from USCIS from talking at the “listening session” about any matter which is being litigated. If there was a 1% chance that USCIS would speak about Redesignation in a “listening session” before the lawsuit, it is probably 0% now given that litigation has commenced. 

The crucial thing to understand is WHY is USCIS holding a “listening session” in the first place. If they truly wanted to listen, USCIS would have held the “listening session” at the beginning of the 60 days they were given to get the RC program restarted, rather than towards the end of the 60 day period as they are doing now. So, they must have another purpose than listening in holding this “listening session”, and indeed there is. The Administrative Procedure Act (APA) requires that an agency implementing legislation solicit input from stakeholders. The most likely explanation for holding the “listening session” now is that the agency has already arrived at its position on the new law, and is hoping that the EB5 industry makes some awkward statements at the listening session (such as praising USCIS, for example). Selected portions from what is said by stakeholders can be used to support whatever position USCIS has already come up with, whether announced or not. The agency can use carefully chosen fragments from the listening session to claim that stakeholders support the agency’s position–whatever it may be. When viewed in light of USCIS wanting to APA-proof its position, the “listening session” makes perfect sense. In other words, USCIS is actually deaf, but just pretends to listen.

The survival of the EB5 industry is at stake–aggressive actions are needed, not conciliatory ones. Per law the EB5 Market Must Resume On May 16. Kudos to Behring, their attorneys at Greenberg Traurig, and the EB-5 Immigration Coalition, for suing. “To every thing there is a season, and a time to every purpose under the heaven” (from Ecclesiastes).

We write the above because we don’t want to put rosy-eyed hopes above hard-nosed experience. We would be most happy to be wrong. If USCIS ends up doing the right thing by: (i) permitting the EB5 RC market to recommence as the law requires on May 16 and (ii) so announces in advance permitting EB5 industry to prepare for the market’s revival; we will be first to heap praise upon USCIS.

Please let us know your thoughts by writing to us at

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