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On August 10, 2015, USCIS issued a draft memo on the issues of ****. I am not sure why they issued this memo though. Shows you that USCIS does not really understand practical aspects of EB-5 law.
A good article on the Chinese EB-5 agents' response and concerns regarding the recent "Johnson Letter" issued by the Homeland Security
If you wish to find out more about what this "Johnson Letter" says, the below article provides good info:
I didn't even know the above article was a change by USCIS. We thought USCIS ALWAYS took the above position. A third party allowing the EB-5 petitioner to use his or her real property as a collateral sounds "fishy" to me. I mean, it's understandable why USCIS has or is taking this position.
It might be that some USCIS examiners might have mistakenly allowed a third party to "gift" their real property as a collateral for a loan to be used by the EB-5 petitioner, but it's at least understandable why USCIS is taking this position.
So says an AILA memo issued on May 6, 2015. Some of more pertinent languages of the Memo are copied below in full.
1. "However, many people are not aware that even if the offering of EB-5 investment securities is exempt from registration, anyone who sells EB-5 investments must comply with the SEC registration requirements for broker-dealers. Under Section 15(a) of the Securities Exchange Act of 1934, only registered broker-dealers can solicit investors. If immigration attorneys receive a fee for referring clients to EB-5 regional centers, they are subject to the registration requirement. The SEC generally considers anyone who receives transaction-based compensation to be a broker-dealer who must be registered or associated with a registered broker-dealer."
I-526s: 14.5+ months.
I-829s: 12+ months.
Some practitioners and investors might be dead by the time their cases are adjudicated. Seriously.
Without Chinese EB-5 cases, the EB-5 market will be dead.
Prepared remarks by IPO Chief:
Prepared remarks by IPO Deputy Chief:
Of note: "Accordingly, we’d like to caution our stakeholders against submitting documents thatcontain any provisions that would restrict use of the funds for EB-5 investment."
Nicolas Corlucci, Chief:
121 staff is the goal. Currently, around 60 adjudicators and 20+ economists.
For the first time, adjudication is exceeding receipts, meaning additional delay should not take place.
A nice ILW article that sheds light on how USCIS adjudicates certain issues concerning direct EB-5 cases.
On Feb. 26, 2015, USCIS held an "interactive" teleconference explaining guidance on the lawful source issues and also answering some questions. Here, I will list several items I found useful.
1. When evidencing lawful source, administrative fee portion can be excluded, which means only the requisite $500,000 USD need to be accounted for lawful source wise.
2. Where a real property is used as a secured loan, and the underlying real property was purchased some time ago, USCIS WILL take into account that the real property was purchased long time ago, so not all documents may be available. However, USCIS kindly refused to provide a specific time period and just repeated that it will look at the totality of circumstances.
We see following continuing problems with EB-5 Programs which USCIS has not yet solved, although USCIS keeps on stating that it is making efforts to address.
1. I-526 adjudication processing time is way too long. Over 14 months for non-pre-approved cases causes all kinds of problems. Even pre-approved EB-5 projects takes over 1 year. This is the number 1 problem. Some argue that EB-5 Program is full of fraudulent cases. In my opinion, this is completely false. I would say the EB-5 requirements are very onerous and hard to deceive USCIS, a lot harder than labor certification cases, marriage-based cases and NIW cases.
2. Limited EB-5 visa numbers which creates problems for Chinese EB-5 cases.
The below USCIS link contains the list of all Regional Centers, including the list of all terminated Regional Centers.
For internal research purpose.
Hint: Divide by 3 (approximate number of family members immigrating per each EB-5 case) to arrive at approximate EB-5 cases because each immigrating family member is allocated 1 immigrant visa for each EB-5 case. Essentially, Chinese EB-5 cases comprise over 85% of all EB-5 cases, which is another way of saying without Chinese cases, the EB-5 market will be dead. Therefore, if USCIS ever shuts down Chinese market, there will be no EB-5 market and no businesses for Regional Centers.
Our office recently gave a paid consultation to a very nice Indian national client in PA. This consultation involved issues concerning H-1B, labor certification and direct EB-5 case issues. We also provided a referral to an AILA attorney based in PA as a courtesy. The client was satisfied.
Nice article summarizing the teleconference:
My impression was that USCIS did adjudicate many cases but still has not made a significant dent in pending cases. I remember hearing the adjudication time is around 14.5 months on the average for I-526s and around 7 months for I-829s. This is just too long and goes against many promises made by USCIS to shorten the adjudication times of I-526s and I-829s. I wonder what is the waiting time for I-526s with exemplar pre-approval? USCIS should be adjudicating these within 2 or 3 months.