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 editor@ilw.com

Article: Federal Court Orders Biden Administration to Temporarily Halt Title 42 Wind Down by Gianna Borroto for Immigration Impact

Blogging: Can Biden Get Away With Not Enforcing the Immigration Law? by Nolan Rappaport

Blogging: DHS Ending COVID 19 Temporary Policy for Expired List B ID Documents on May 1 by Bruce Buchanan

Blogging: DHS/ICE Extends I-9 Virtual Verification Until October 31, 2022 by Bruce Buchanan

News: USCIS Stops Applying Certain EAD Provisions for Asylum Applicants

Focus: NEW! The EB-5 Book 2022-2023 Edition
Editors: Matt Gordon and Others
Articles by many noted authors. Book Outline and details coming soon!
Books are shipped on a first come first served basis.
Place your order now to get your copy as soon as possible!

Special Prepublication Price:

Buy Now! Online

Headline: Biden admin struggles to calm the Democratic storm over immigration Click here
Headline: Opinion: Comprehensive Immigration Reform by Congress Is Long Overdue Click here
Headline: Immigration nears top of list of urgent issues for Americans, overtaking Ukraine: poll Click here
Headline: WATCH: Democratic representatives Jaypal, Garcia hold news briefing on Title 42 immigration Click here
Headline: DOJ to close immigration courtroom in Pittsburgh Click here

Letters of the Week:

ComingsNGoings: Submit Your Announcement
If you have a professional announcement such as: New Position, Honors And Awards, Mergers & Acquisitions, New Office Address, New Appointment, New Associate, New Attorney, New Partner, that you wish to share with the Immigration Daily community, send your professional announcement to: editor@ilw.com comingsNgoings announcements is a free service


An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Copyright 1995-2017 American Immigration LLC, ILW.COM. Send correspondence and articles to editor@ilw.com. Letters and articles may be edited and may be published and otherwise used in any medium. The views expressed in letters and articles do not necessarily represent the views of ILW.COM.
Publisher: Sam Udani ISSN: 1930-062X
Advisory Board: Jason Dzubow, Rami Fakhoury, Matthew Kolken, Chris Musillo, Lory Rosenberg, Greg Siskind, Joel Stewart, Margaret Wong