Frequently Asked Questions - EB-5 Processing & Procedures
FAQs on step-by-step procedures involved in all phases of EB-5 processing
Regarding tabs, USCIS issued a useful instruction as follows:
Question 1: The perennial question regarding tabs versus colored dividers has resurfaced. We would appreciate your thoughts on best practice in terms of both the lockbox, and direct filings at the Service Center. The USCIS website indicates that tabs should be placed on the bottom of the packet; however, during a recent stakeholder meeting, USCIS indicated that such tabs would be removed and that USCIS preferred colored paper instead (AILA Doc. No. 12031666).
Question 1a: Please clarify whether USCIS prefers tabs or colored paper.
Response 1a: For direct filings with the Service Center, we prefer that applicants submit documentary evidence using bottom tabs. For filings with the lockbox, it is preferred that colored paper dividers be used. The lockbox process involves scanning each page in the package, which means disassembling packages (except I-140 tabbed supporting documents, which will not be disassembled or scanned. For premium filed I-140 documents filed directly with the Service Center, tabs may be used.)
USCIS has answered on this issue that under the USCIS regulations, after I-829 denial, the regulations mandate that NTA "shall" be issued, so they have no choice. Of course, very often, USCIS can take long time before issuing NTA.
Depending on the facts and the reason for the denial, you can win on the removal proceedings. Therefore, we encourage you to consult with an experienced immigration attorney.
This notation stands for "Conditional Resident I-89 form". I-89 form was a white data collection form previously used by USCIS on which fingerprints and signature was collected AFTER I-485 or I-751 or I-829 was approved. Now days, USCIS does not use I-89 data collection form but instead captures necessary information through ASC biometrics procedure. However, it appears that USCIC automatic email notifications still contain "CRI89" references causing confusion.
It is a procedure allowed by USCIS whereby a regional center submits, in a form of an amendment to the regional center designation -- I have no idea why USCIS should consider a new project as an amendment of the designated RC when all one is asking is to confirm that the proposed EB-5 project falls within the parameters of the approved RC designation and complies with the EB-5 law -- for a pre-approval of a particular EB-5 project the regional center will embark on in a very near future. This procedure was set up by USCIS to give some consistency and shorten adjudication time frames for I-526 petitions filed in connection with a particular EB-5 project. Supposedly, if CSC gives a pre-approval of the EB-5 project to be embarked upon, all project-related issues would be deemed to have been approved, and only investor-related issues, such as lawful source issues, would need to be reviewed and decided by CSC examiners. This would supposedly lead to shorter processing times for I-526s. [Note we are talking about the pre-approval where there is no material change (or misrepresentation) in the project or project documents from the time the pre-approval is issued to I-526 filing date. If there is any material change, we would be the first one to say that USCIS has the right to question the project at the time of I-526 review even if the project obtained a pre-approva.]
However, this is not the way things are turning out. Read the below article written by another EB-5 practitioner regarding this issue:
Something has to be done by USCIS/CSC to address and fix this so-called "pre-approval" procedure, because it is not a "pre-approval" at all.
However, another former insider offered his perspective on this issue.
The idea for an exemplar I-526 came from EB-5 Stakeholders. USCIS did not want to do it. It was pushed on to USCIS via political lobbying and pressure from EB-5 stakeholders and their Congressional supporters.
The idea is to allow a Regional Center to file an exemplar I-526 as an I-924 amendment because a RC cannot file an I-526. Only an alien investor can file an I-526. Rather than ask an investor to be a test case and risk denial, the RC files the I-924 which is NOT a visa petition and therefore is not subject to a showing of "eligibility at time of filing". Once the underlying plans and standardized transaction documentation is fully EB-5 Compliant and fully vetted by USCIS, the RC can market the package as vetted and compliant with a specific notice from USCIS for that package of prima facie evidence of eligibility. The exemplar is not tied to an actual EB-5 priority date so the substandard documents can be changed and it is not an impermissible material change no matter how huge the changes that are made prior to real I-526s being filed en masse by investors.
The problem comes from RC sponsors and foreign agents who have misrepresented it as a "sure thing" and then they either have altered the documents to fall out of legal compliance through illegal and unethical "bait and switch" tactics or the actual project runs into problems or simply fails outright.
However, if the following is indeed what happened, USCIS did not do a good job of making its position clear. Many RC sponsors and EB-5 practitioners, who are outsiders to the internal goings on at USCIS, had no idea on how USCIS viewed the "pre-approval" procedure. [For example, we participated in all USCIS sponsored EB-5 teleconferences, and we had absolutely no idea that this was how USCIS viewed the pre-approval procedure!] In addition, if RCs knew that this is how USCIS viewed the pre-approval procedure, many of them would not have obtained the pre-approvals for their projects -- indeed many EB-5 practitioners would not have recommended RCs to go for the pre-approvals -- in the first place.
Everyone is right and wrong on this one, simply because it's unpredictable how long CSC will take to decide I-526 cases, even when there has been a pre-approval on the project. Many EB-5 practitioners have a valid point in asking what is the point of the "pre-approval" if one cannot rely on the pre-approved project.
Based on our experience and other EB-5 practitioners, I-526s adjudication time frames range from 1 month to over 14 months: that's correct, 14 months after the submission. Of course, when a RFE is issued, it will delay the adjudication. However, even after RFE response has been submitted, CSC can take anywhere ranging from one month to 7 months from the time of RFE submissions.
Again, based on our experience and other EB-5 practitioners, we would say that it's not infrequent that I-526 adjudication time frame goes over 8 months. Many U.S. companies and EB-5 practitioners complain that a good project can get killed waiting for I-526s to get approved.
Some EB-5 practitioners also say that whenever there is some issue the examiner does not understand or like, for whatever the reason, your I-526 can sit there very, very long time, until CSC examiner talks to whoever they have to talk to and decide. [They also think luck plays some part in which CSC examiner looks at your case.]
Also, if CSC can deny and then certify the denied I-526s to AAO for its review and decision. And whenever the case goes up to AAO on certification after CSC denies it, it's pretty much a death knell, as we have not come across any reversal by AAO in the history of the EB-5 Program. And many EB-5 practitioners know that AAO is very, very good at finding a way to deny a case that's been certified. And it's very hard to take I-526 denials to the federal court level, simply because investors do not want to wait around any longer; they rather get their money back and do another EB-5 project.
In conclusion, whenever I hear an EB-5 project say their I-526s are being approved in less than 2 months, I say to myself "I had I-526s approved in less than a month, so no big deal", but I know that won't continue; and whenever I hear someone's I-526 has been pending for over 14 months, I believe it.
The only predictability is no predictability when it comes to EB-5 case adjudication; and that's sort of problematic.
P.S. In fairness to CSC and trying to be as accurate as we can, we would say around 50% of I-526s get adjudicated within 7 months.
Personally, I am not a big fan of this course of action or anyone telling potential EB-5 clients to consider doing this. There are many reasons for my stance, but let me give you a few reasons. First, in all likelihood, there will not be sufficient time to accomplish your objective on a tourist visa. Second, it's not guaranteed that your I-526 will be approved. Currently, USCIS is denying or delaying adjudicating I-526s often for reasons that are not really justified under the EB-5 law. Well, let me put it this way: one can always come up with a way to deny I-526s if one wanted to. Third, it's better to not rush things by moving your family before I-526 is approved and immigrant visas are obtained.
Therefore, my advice for someone currently residing at a home country is to start and finish your I-526 and consular processing in your home country before entering the U.S. with conditional green cards.
Direct Email Communication with EB-5 Regional Center Applicants
Questions and Answers
U.S. Citizenship and Immigration Services (USCIS) is implementing the first phase in a series of proposed enhancements to the EB-5 program. Beginning today, Form I-924 applicants will be able to communicate directly with USCIS adjudicators via email in an effort to streamline the process and quickly raise and resolve issues and questions that arise during the adjudication process.
The EB-5 Program, also known as the Immigrant Investor Program, is designed to stimulate the U.S. economy through job creation and capital investment by foreign investors. Form I-924 is the Application for Regional Center under the Immigrant Investor Pilot Program.
Questions and Answers
Q1. What are the goals of direct email communication between USCIS and Form I-924 applicants?
A1. Direct email communication is a customer-service tool to enhance communication between USCIS and Form I-924 applicants. Form I-924 applicants may email USCIS questions regarding pending applications, including questions related to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) issued by USCIS. USCIS may email Form I-924 applicants to informally ask for clarification on certain issues to facilitate review, understanding and adjudication of the application. USCIS may also send a courtesy copy of an RFE or NOID to the email address listed on the I-924 and, if applicable, to the email address listed on the Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, associated with the application.
Q2. How will the direct email communication process work?
A2. Form I-924 applicants with pending applications will be sent an email with a unique identifier and a specific email address to use when corresponding with USCIS. Once assigned an email address, applicants may use this contact information to send and respond to emails to discuss—either informally or through the RFE or NOID process—issues raised in their regional center applications. An applicant will receive an email with instructions shortly after his or her Form I-924 application is accepted by USCIS for filing.
The direct email communication process is only available to entities that have a pending Form I-924 application. It is not available to regional center promoters who have pending regional center applications that were filed prior to the implementation of Form I-924 on Nov. 23, 2010.
Q3. Will USCIS use email to issue RFEs and NOIDs, and can Form I-924 applicants use email to provide evidence in response to such notices?
A3. USCIS may email a courtesy copy of an RFE or NOID to Form I-924 applicants and, if applicable, to attorneys or representatives of record listed on the Form G-28 associated with the application. However, applicants may not formally respond to an RFE or a NOID via email.
If an RFE or a NOID is issued in regard to a Form I-924 application, USCIS will follow standard procedures and will mail a hard copy of the RFE or NOID to the address listed on the Form I-924 or, if applicable, to the attorney or accredited representative listed on a valid Form G-28.
USCIS cannot accept an applicant’s formal response to a RFE or NOID via email. Once an applicant is ready to submit the formal response to an RFE or NOID to USCIS, he or she should follow the response submission instructions provided on the RFE or NOID.
Q4. How will USCIS ensure that the attorney or accredited representative listed on the Form G-28 is included in email communication between USCIS and the applicant?
A4. USCIS can only communicate via email with counsel representing a Form I-924 applicant if the associated Form G-28 includes a valid email address for the representative. If a valid email address is not provided in the Form G-28, the attorney or accredited representative should provide USCIS with an updated Form G-28 that includes a valid email address. This updated Form G-28 should be sent as a PDF to USCIS’s general EB-5 mailbox at firstname.lastname@example.org. An original, fully executed Form G-28 will also need to be mailed to USCIS for inclusion in the Form I-924 application.
Q5. Can the direct email communication process be used to discuss issues regarding individual Form I-526 and Form I-829 petitions or other EB-5 issues not directly related to a pending Form I-924 application?
A5. No. The direct email communication process is solely for discussing issues regarding pending I-924 applications. It is not a forum for general policy and legal questions about adjudicative procedures or decisions, or for questions relating to Form I-526, Immigrant Petition by Alien Entrepreneur; Form I-829, Petition by Entrepreneur to Remove Conditions; or Form I-290B, Appeals or Motions.
USCIS will not respond to emails received concerning issues unrelated to a currently pending I-924 application. For more information about how to make other EB-5 inquiries, visit the EB-5 Inquiries page on the USCIS website at www.uscis.gov.
Q6. What if an applicant has questions about his or her Form I-924 after it has been adjudicated?
A6. Applicants may contact USCIS with other questions regarding the EB-5 Program at email@example.com.
The regulation governing I-829 conditions removal, 8 CFR 216, reads:
(3) Physical presence at time of filing . A petition may be filed regardless of whether the alien is physically present in the United States. However, if the alien is outside the United States at the time of filing, he or she must return to the United States, with his or her spouse and children, if necessary, to comply with the interview requirements contained in the Act. Once the petition has been properly filed, the alien may travel outside the United States and return if in possession of documentation as set forth in Sec. 211.1(b)(1) of this chapter, provided the alien complies with the interview requirements described in paragraph (b) of this section. An alien who is not physically present in the United States during the filing period but subsequently applies for admission to the United States shall be processed in accordance with Sec. 235.11 of this chapter.
It's very important to notify USCIS of your address change via online address change notification method and filling out and sending in AR-11 address change form for EACH individual family member.
Most criticisms seem to echo the following:
1. CSC seems to be applying a stricter standard than the "preponderance of evidence" standard (more likely than not) to adjudicate EB-5 petitions.
2. CSC does not seem to appreciate or understand the broader meanings behind the four precedent AAO cases. For example, Matter of Ho requirement for a business plan specifically states that a business plan will vary according to the type of business or industry, and many aspects of the business plan described is applicable to a small non-regional center business.
3. USCIS policies governing new issues that come up seems to treat past cases unfairly and retroactively. USCIS' setting new policies to deal with prospective cases is fine, but USCIS should deal in a fair manner with past cases which were adversely impacted by USCIS' new policies.
4. There seems to be no forum to discuss changes that are needed to improve the EB-5 Program and how to implement these changes.
5. Adjudications by CSC examiners seem to be very inconsistent in that some of petitions in the same project with exactly the same facts will be approved by one examiner but then later will denied by another examiner.
6. Many EB-5 practitioners feel that CSC Processing Times for EB-5 cases are not helpful and misleading because the processing times listed reflect the times it take for the case to reach the examiner's desk, not the actual processing times.
Since USCIS decides to either deny or approve the case, it cannot appeal the case to AAO. However, USCIS has some discretion to "certify" the case to AAO for a detailed review, while at the same time explaining its decision. USCIS is supposed to certify the case to AAO for review only where a complex or novel legal issue is present, but when the EB-5 law is as unclear as it is, there are many areas which are novel or complex.
Not really. First, whether the job-creation requirement has been met depends on each I-829 case. Second, even if the job-creation requirement for all 50 I-829 petitions have been satisfied, the way CSC adjudication seems to work, each examiner makes his or her determination even where all relevant facts are the same; therefore, even though some examiners may have already approved I-829s in a particular EB-5 project based on the same facts, another examiner may decide 3 or 4 months later to issue RFE or deny the I-829. Although from a legal perspective, each petition stands on its own, logically or common sense wise, as many of our users point out, this makes absolutely no sense.
This may be the case because CSC does not appear to have any data system to track multiple I-526 or I-829 petitions filed for one EB-5 project, or because each examiner may have a different understanding of the preponderance of evidence standard or sometimes different understanding of the controlling EB-5 law. Therefore, even if it appears that CSC has been approving multiple I-829s for the same project for the past 6 months, this does not guarantee future I-829s will be approved, even if the job-creation has been met.
Many of our users have aptly noted that this points out the issue of inconsistency in adjudication at CSC, but currently, there appears to be nothing we can do except complain.
As of July 1, 2011, our experience has been around 4 to 6 months.
We are not sure of the internal workings of USCIS, but Service Centers Operations (SCOPS) and CSC administer the EB-5 Program, but increasingly, the USCIS Director appears to make the EB-5 Program more business friendly pursuant to the Obama Administration's SelectUSA policy. See http://selectusa.commerce.gov
I hope they put pressure on USCIS to make the EB-5 Program more investment friendly to attract foreign investment that create jobs and get rid of hyper-technical requirements that do not encourage the underlying purpose of the EB-5 Program which is to attract foreign investments that lead to the creation of jobs for American workers.
Iranian EB-5 cases require an OFAC license, and need to show the movement of their funds via an affidavit, receipts and bank statements, if available at all. OFAC license requires all transactions be included, even those transactions already completed. The problem is even if OFAC license is obtained, USCIS does not automatically approve the lawful source aspect, although USCIS does give some deference. On the opposite hand, if the OFAC license does not cover the transactions, expect a nice RFE from USCIS and make your day.
Because of this additional requirement, Iranian EB-5 clients may incur additional costs to do their EB-5 cases.
USCIS has stated:
Response: Both an RFE and NOID are notice of ineligibility. Pursuant to 8 CFR 103.2(b) and Section 10.5(a) of the Adjudicators Field Manual, an RFE may be issued when initial or additional evidence are missing. A NOID may be issued where USCIS has evidence of ineligibility or derogatory information. A NOID may also be issued based on a mandatory basis for denial.
[Q] Regarding OFAC issue with Iranians, what is USCIS policy on getting an OFAC license for Iranian investors? At what stage of the EB-5 process does the license need to be acquired? Does USCIS and OFAC coordinate these policies? If so, how?
New OFAC regs released -- read pages 84 ~ 102 related to general immigration and 100 to 101 related to EB-5 cases: http://eb-5center.com/files/OFAC_Regs.pdf
USCIS has stated:
The Office of Foreign Assets Control (OFAC) of the US Department of the Treasury administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States. OFAC acts under Presidential national emergency powers, as well as authority granted by specific legislation, to impose controls on transactions and freeze assets under US jurisdiction. Many of the sanctions are based on United Nations and other international mandates, are multilateral in scope, and involve close cooperation with allied governments. [See www.treasury.gov ]
31 CFR 560 Prohibits certain U.S. Transactions with Iran, known as the “Iranian Transaction Regulations”. (ITR)
␣ Pursuant to Section 3 of Executive Order 12959, all federal agencies are “directed to take all appropriate measures within their authority to carry out the provisions” of the ITR.
␣ Civil monetary penalties ITR violation can be $250,000 or twice the value of the transaction at issue, whichever is greater.
␣ Criminal penalties can include a fine of up to $1,000,000, and possible incarceration of up to 20 years. The statute of limitations on these violations is 5 years.
USCIS has met with OFAC in order to learn about how ITR requirements may impact lawful source of funds requirements in EB-5 petitions. OFAC has confirmed that:
1. the U.S. recipients of funds from Iranian investors as well as any individuals involved in structuring/facilitating these transactions would be in violation of the ITR unless OFAC licensure procedures have been followed.
2. Investment of funds that have passed through prohibited banks would also be in violation of the ITR. For a list of prohibited banks and Specially Designated Nationals (SDN) [See: http://www.treasury.gov/resource-center/sanctions/SDN- List/Pages/default.aspx.]
3. These investors are required to apply for and received a license from OFAC, or a letter stating that no license is needed.
4. OFAC will determine if such transactions will get a license or not via the application procedure set forth in 31 CFR 501.801(b ).
The only instance where a license would not be required is when the Iranian national resides outside of Iran and the money is shown to be obtained through a lawful source and transferred to the United States without having traveled through a prohibited bank.
␣ In all other situations, any U.S. recipient of prohibited funds and facilitators of such transaction (attorneys, accountants etc.) should apply for a license from OFAC , who will determine if the transaction is or is not prohibited by the ITR and, if prohibited, whether to grant a license to permit the transaction.
␣ OFAC has indicated that each individual transaction must be licensed separately.
The lawful source of an EB-5 investor’s capital investment must be established at the time of filing of the Form I-526 petition. The application for licensure with OFAC must be resolved prior to the filing of a Form I-526 petition by an EB-5 investors if the lawful source of the capital investment may be impacted by OFAC licensure requirements.
␣ The Administrative Appeals Office recently issued an unpublished decision which examines OFAC licensure requirements in the EB-5 context which may be helpful to those who wish to have further information on this topic.
If the OFAC license appears to be limited and does not appear to cover all of the transactions presented in the I-526 petition, then the petitioner has failed to establish lawful source of funds.
␣ If the license does not authorize any transactions that occurred prior to the date of issuance, then the license cannot cover the transfer of funds from Iran included in the petition where the license was obtained after the petition was filed.
The current situation seems to be many RFEs issued by USCIS regarding OFAC License. Thus, just having an OFAC License does not guarantee I-526 approval. The Request for an OFAC License has to be comprehensive so when the License is issued it would include many of the Source of Fund issues. There is nothing one can do with regard to the time that US Treasury is talking to issue an OFAC License. Currently, that time frame is about 6 months. The worst case is getting an RFE from USCIS regarding OFAC and they only give you 80-90 days to Respond. A nightmarish situation.
Definitely not good. Many problems associated with this system:
1. Takes too long to issue receipt notices.
2. Often makes mistakes in returning petitions incorrectly.
3. Often forwards the case file to wrong Service Centers.
Where CSC adjudicates all EB-5 cases, it doesn't make sense to file EB-5 cases to Lockbox.
Despite what many are saying, not really, for the following reasons:
1. It takes just too long to obtain the pre-approval: 6 months or longer.
2. Even with the pre-approval, CSC is known to issue RFEs on the very project which was pre-approved, even though no aspect of the EB-5 project changed after the pre-approval was obtained.
3. In fact, USCIS representative during a recent public meeting stated that USCIS had in fact never encouraged regional centers to obtain pre-approvals! We do not agree with this statement, but USCIS can offer a revisionist version, I guess.
As of first quarter of 2011 fiscal year, denial rates of both I-526s and I-829s are over 25% each, which is unacceptable. We hear a lot of complaints from RCs on unreasonable RFEs and inconsistencies in the adjudication all the time.
This means the real denial rates for both petitions are really higher, because some petitions are voluntarily withdrawn and refiled or abandoned.
[Q] We reside in Japan. Someone told me that I should file I-526, and then our entire family can enter the US on tourist visas and then file I-485 adjustment of status to obtain conditional green cards? Is this recommended?
Not at all. We do not recommend this approach, not only because it can be deemed unlawful to use tourist visas to enter the US with a preconceived intent to adjust in the US, but because no one knows how long it will take to get I-526 approved, or if I-526 will ever be approved.
If you reside abroad, we almost on all cases recommend that you first obtain I-526 approval and then do consular processing through the American Embassy located in your home country.
You must notify USCIS as follows, per a recent notice by USCIS:
Beginning March 15, 2011 all Change of Address, (Form AR-11) and Alien’s Change of Address, (Form AR-11 SR) will change filing locations. Now, you must file all change of address forms at the following address:
Harrisonburg File Storage Facility
1344 Pleasants Drive
Harrisonburg, VA 22801
Change of address forms mailed to the old location will be forwarded to the new filing location for 45 days beginning March 15, 2011 until April 28, 2011.
You also have the option of notifying USCIS of a change of address online. To change your address online or for more information about USCIS and our programs, visit us at www.uscis.gov.
More specifically, the online link to change address is: https://egov.uscis.gov/crisgwi/go?action=coa.Terms
We do not recommend this approach. First, no one can guarantee that your I-526 immigrant petition will be approved within the period of stay granted under your tourist visas. Second, it's legally risky to enter the U.S. with nonimmigrant visa but with a pre-conceived intent to immigrate.
If you are based in outside the U.S., it is recommended that you get your I-526 approved and THEN take appropriate consular processing steps to obtain immigrant visa through the American Embassy located in your home country.
Not unless USCIS denies I-829 and then certifies the decision. Usually, USCIS must issue NTA first, before the petitioner can "renew" the I-829 petition before the Immigration Judge, as part of the removal proceedings.
Currently, around 3 months, but you never know when it comes to the CSC processing times. It could suddenly lengthen due to the increased filings.
As you probably know, California Service Center (CSC) is the appointed Center to handle I-526s, I-829s, I-485s based on approved I-526s, and regional center designation and amendment applications.
There were around 10 examiners at CSC handling EB-5 cases, but starting 2011, that number probably increased to around 15 to 20 examiners. Any time new examiners are brought in, there is a steep learning curve when it comes to EB-5 cases, and there probably is no way to avoid inconsistent decisions.
Let me just say EB-5 applications are such that if the examiner wishes to be strict in his or her review, the examiner could probably RFE and/or deny over 90% of all cases presented. It all depends on how "reasonable" the examiner is.
What I am saying is this: You have EB-5 statutes and regulations on one hand, and then, on the other hand, you have what the examiners believe are the EB-5 law.
There are all kinds of EB-5 policies which are not supported in the EB-5 statutes and regulations, which act as "de facto" law; and one single misunderstanding or misapplication of EB-5 policy on a single issue can lead to a denial of I-526 or I-829 petition. It used to be not like that in the past; but in fairness, USCIS did not had to deal with many I-829 related issues that started cropping up as more and more I-829s were filed from 2007 or 2008.
More you think about it, the EB-5 Program is a Program built on various strands of strings, and if one of them breaks, the entire EB-5 Program can fall.
From our personal point of view, the weakest aspect of the EB-5 law is that on many issues, there is a lack of logic or practicality. Hopefully, USCIS will make some changes, and convey these changes to examiners.
Yes, even if the son or daughter is over 21 at the time of immigrant visa interview at the American Embassy. That is because CSPA controls.
Be very careful doing I-824 for follow to join processing for dependents who follow to join the PA. See below Q & A from October 28, 2010 AILA-VO LIAISON QUESTIONS & ANSWERS. It appears that there are serious issues with I-824 processing.
Q: Members report problems with the I-824 processing between the USCIS and NVC, which are resulting in significant delays in reuniting families. In our fall 2009 meeting, VO advised there would be a new process for FTJs for adjustment cases and the process would begin at NVC and then transfer to posts but in March 2010, we were advised that the new procedures were still in the development stage. Please advise when the new (and very welcome!) procedures will be implemented.
Answer: We are in the process of finalizing an information collection that will allow VO to collect the information necessary to process FTJs for adjustment cases and reviewing the costs associated with this function. Once that form is finalized and we have a cost determination, we will decide whether to begin the process of obtaining OMB approval for the collection and establishing the appropriate procedures for process. At this juncture there is not a firm timeline as to when these new procedures will be implemented.
Not really. Regional Centers marketing may say so, but the fact is USCIS can "pre-approve" the underlying EB-5 project and then still raise questions about the project when they are adjudicating I-526s. This raises a bona fide question which is: Why get the pre-approval then? This is another aspect in which the USCIS adjudication is pretty uneven and inconsistent for EB-5 cases.
Because USCIS computer system is not advanced. USCIS says it is working to make this possible.
CSC says that they try to decide the case within one month of receiving RFE response. However, you should take that with a grain of salt. Based on our experience, CSC can take as long as it wants to decide the case even after receiving RFE response, especially if the RFE deals with policy issues.
This question was answered on May 10, 2010 during the Central Florida Chapter – Orlando USCIS Liaison Minutes as follows:
In order to change address at the local USCIS Orlando office, the attorney needs to write a letter stating their new address and attach a copy of their bar card. In order to change the address at USCIS service centers, the attorney will have to file a new Form G-28 for every client. Currently, there is no procedure for attorneys to file one form and change address for all clients.
Sure wish there was that one "magic" single G-28 form which would change address for all cases under the Attorney's representation!
Also, go to the below link to find out how to get G-28s recognized by USCIS.
No, after the entire family members (including PA) obtain Immigrant Visas from the American Embassy, the PA and dependents must either enter the U.S. together as immigrants or PA must enter the U.S. as an immigrant first and then followed by dependents. This is because all the rights of the dependents "depend" on the PA's rights. Until each person obtains "permanent" green card status, just think of dependent family members "piggy-backing" on the rights of the PA.
As of May 3, 2010, applicants for I-526-based I-485s must file at a lockbox address depending on where the applicant resides. See page 7 of the below link:
Therefore, do not file the I-526-based I-485 at CSC. We do not know the rationale behind such change. At any event, if you encounter any problems with lockbox receipts, you should email to: LockboxSupport@dhs.gov.
Yes, we can tell you a little bit of the CSC facility because we recently participated in an AILA sponsored tour of the CSC facility (conducted by CSC staff) on April 28, 2010. Here are personal observations:
1. CSC facility, a yellow-orange colored pyramid like building, is located at 24000 Avila Road, Laguna Niguel, CA. For those of you who are not familiar with Laguna Niguel area, it is relatively affluent area around 30 minutes away from Irvine, CA and around 50 to 60 minutes away from the Los Angeles, CA. I always imagined the CSC as being located in the middle of a desert but that was not the case.
2. Lines of thousands files everywhere. Hundreds of contractor workers receiving and fee'ing the files, dividing them into different types of cases, I-130, I-140, Premium Processing cases etc. File rooms were just warehouse with rows of files. You can easily imagine your case file getting lost if someone makes clerical mistakes.
3. The interior work spaces were not as nice as it could be. [I think CSC should participate in an EB-5 project to upgrade its interior to create a more friendly working environment. :)] Examiner is stationed at a partitioned cubicle, similar to a caller customer center you see in movies but the partitions were not as nice.
4. An average age of examiners working at the CSC appeared to be around 35 years old (but some looked younger and some looked older), and many of the contractor workers and examiners appeared to be immigrants themselves. They actually appeared to be nice, and I even exchanged greetings with some of the examiners who said "hi" as we passed by. At least, know that your cases are being denied by nice people. I specifically asked the tour guide staff if EB-5 examiners were pretty nice, and the tour guide staff said she knew them personally and that the EB-5 examiners are indeed nice people and are relatively more experienced, and they do not rotate to other cases divisions. As a result, they tend to be older examiners, with an average age of around 40 to 50, composed of around 20 examiners, half males and half females.
5. It appears that visitors must park at the South Gate (you just have to keep on driving around the pyramid building until you see the sign South Gate.)
[Q] The December 11, 2009 Neufeld guidance memo basically allows the petitioner to file second I-526 petition in case "material" changes (no one knows what they are) take place to the underlying EB-5 project AFTER I-526 petition approval, and if new, second I-526 petition is filed and approved, petitioner must then abandon their conditional permanent resident (CPR) status by using form I-407 and then re-apply via I-485 to reacquire and go through their new, two-year CPR status. What is wrong with this scheme?
* First, note that USCIS itself says contents contained in their guidance memos do not constitute law and cannot be relied upon in any dispute but is issued only to guide CSC examiners. However, this means "practically" the guidance memos have an effect of EB-5 law, unless you choose to fight it at the federal court level, because AAO will almost always follow the USCIS issued guidance memos even though USCIS has said they are not "EB-5 law". I guess that is the home court advantage that a governmental agency has.
We believe the Service could have implemented a better procedure -- one that is more practical and in compliance with the immigration law -- by narrowly defining the "material" changes AFTER I-526 approval and then require an amendment to the original project through a "dummy" I-526 petition -- so that notice of such change to the Service will apply to all investors participating in the same project -- rather than force petitioners individually submit an entirely new, second I-526 petition, then abandon CPR and then re-acquisition of the CPR status which you just abandoned -- and this procedure does not even help "aged-out" dependents who turned 21 in the meantime.
The outlined procedure in the December 11, 2009 Neufeld guidance memo is impractical and causes too much delay. It's a convoluted mechanism that basically allows the Service to deem any changes to the underlying EB-5 project "material" and then to punish someone when there has been bona-fide, non-mateiral changes to the project. The procedure contained in the Neufeld memo looks like some sort of solution where EB-5 project has changed, but it is not.
[Also read http://eb-5center.com/node/708 which points out another procedure which lacks legal support.]
We strongly believe that if such changes to the EB-5 project AFTER I-526 approval are truly "material changes" -- which should be defined in terms of whether a petitioner is able to meet the specific requirements of the stated I-829 requirements -- then, the law, including INA 245(d), should be followed and I-829 should be denied. This is why the Service has to narrowly define what are "material changes" that occur AFTER I-526 approval, and not get concerned about "immaterial changes". Simply put, a "material change" AFTER I-526 approval should be narrowly defined as a change that makes it impossible that petitioner-investor to meet the clearly stated requirements of I-829. We believe the Service is confusing a "material change" BEFORE I-526 approval with a "material change" AFTER I-526 petition: this basically leads the Service to formulate an illegal procedure outlined in the Neufeld guidance memo.
In the event "immaterial" changes occur to the EB-5 project AFTER I-526 petition, review those changes at the I-829 level and if they are really "immaterial" changes, approve the I-829. Or as an alternative, offer an option of filing an amendment through a "dummy" amendment to already-approved I-526 petition if petitioner wants to inform the Service in advance of the "material changes" that have occurred. Why is this "amendment" procedure a better and fairer solution? First, amended petition is allowed to be filed in many other contexts, including H-1B and I-140 immigrant petitions. Second, practically there is no way for regional centers and petitioners (even USCIS itself will have a hard time distinguishing) to know if any change will be considered "material" or "immaterial" changes by USCIS, which means they should always be filing something to protect themselves. Lastly, allowing such amended I-526 petitions would protect the "aged-out" dependents who turned 21 in the meantime. Why USCIS does not simply allow amended I-526 petitions in case of "material" changes is perplexing, especially in light of their previous oral statements that an amendments will be allowed. In case multiple I-526 amendments are needed for a specific regional center based project, one "master" I-526 amendment filing should be allowed, because it makes no sense for each individual petitioner to have to file the same amendment each time. And no, we strongly disagree that the law mandates that each petitioner has to go through the same process: that is due to a very narrow and unreasonable interpretation of the EB-5 statutes and laws.
We believe where the immigration law is clear, it should be followed; in this sense, the December 11, 2009 Neufeld guidance memo is intellectually dishonest policy which the Service just pulled out from thin air like a magician. But where the law is not clear, the CSC Director should exercise her discretion and approve I-829 petition where "immaterial changes" occurred AFTER I-526 approval. Actually, the very fact that I-829 requirements are met should indicate whether certain changes are "material" or "immaterial".
Let's put it this way: We have not yet seen or heard the AAO ever reversing the Service's denial on either I-526 or I-829 petition in the history of EB-5 cases. We cannot be certain if this means AAO has never overturned the Service's decision on EB-5 case, as there is no such record. Either the Service is right every time it denies an EB-5 case, or all EB-5 appeals to AAO lacked any merits. Basically, to really get a "real" review of your denial, you might be better off going to Immigration Judge or will definitely be better off going to the federal court if you can afford the costs.
One reason why the Service and AAO can deny an EB-5 case so easily is because EB-5 statutes and regulations are so broad, and there are so few federal court cases on point, and there are so few precedent AAO decisions.
The favorite rationale used by both the Service and AAO to deny your case is: "There is nothing in the EB-5 law which allows so and so . . . " But one could just as strongly argue: "There is nothing in the EB-5 law which prohibits so and so . . . ".
When you review many of AAO decisions, you get the sense that AAO already decided to uphold the Service's decisions and then try to come up with supporting reasons, rather than act as a neutral "reviewer" of relevant facts and EB-5 related laws. Like we said, the EB-5 law has so many holes that anyone can "reasonably" arrive at any conclusions, and when it comes down to it, a lot of what USCIS and AAO cite as "the EB-5 law" is nothing more than their desires policies for the EB-5 Program.
Another negative aspect of AAO review is that AAO almost never allows an oral hearing: that means, you might have to go through many MTRs and many years waiting for AAO to render their decisions.
The best way is to contact the CSC and let them know that I-485 is pending for another category and that I-526 immigrant petition has been approved. CSC will then allow the existing I-485 to be decided based on the approved I-526, so you don't have to file another I-485 and pay additional I-485 related filing fees.
According to CSC, the answer is "no". This is possible only for regional center based amendment applications or initial regional center designation applications.
We asked this question to the CSC staff, and they informed us for most cases, green cards are produced just at one green cards production facility located in Corbin, Kentucky.
First, it means your case has been received and inputted into USCIS computer system.
Second, I-829 receipt notice is a documentary evidence that allows you to work and travel for one year. [That's what the receipt says.] However, if you or your family member intends to travel outside the U.S., we recommend that you make an Infopass appointment with USCIS Field Office and get I-551 stamps in your passports.
Third, you can track status of your filed I-829 case by typing in the receipt number into the Online Case Status Check system at www.uscis.gov site.
It really depends on many facts, and the ability of the investor and family members to physically remain in the U.S. for many months.
Normally, we would say do IV processing, unless there is some urgent need to emigrate to the U.S. quickly, or the Investor and family members are already physically staying in the U.S. on nonimmigrant visa status.
The important thing is you have to indicate whether the investor will do IV processing or do I-485 processing on the I-526 form itself. Therefore, this is something you have to think and decide in advance.
No. The "concurrent" filing is a procedure allowed by USCIS where an underlying immigrant petition and I-485 adjustment applications are filed with an appropriate Service Center at the same time.
Why doesn't USCIS allow the concurrent filing for EB-5 cases? It's because they don't have enough manpower, and they believe I-526 petitions are too complex to be adjudicated so quickly.
We actually believe that the EB-5 law should be changed to allow investors who already invested, maintained their investment in the new commercial enterprise for at least 2 years and then created and maintained requisite new, full-time jobs for 2-year period, to obtain PERMANENT green cards from the beginning, like in marriage to USC cases.
This stuff about "conditional" green cards is not fair to foreign investors. We believe in either giving green cards or not giving green cards. "Conditional" status creates too much complexities when the cases do not go as planned. We think this is a "dumb" frame work that does not take into account how much money, time and effort these foreign investors have put into their decision to move to the good old USA. It creates more work and money for USCIS and attorneys, and more hassle for investors and their families.
If you are going to give U.S. citizenship to people for just being born in the US, you certainly should give "permanent" green cards to these investors and family members who actually are helping U.S. economy. We realize there is a constitutional right to the former, but from a practical point of view, it doesn't make sense.
[Q] USCIS touched upon this issue in the past, but the answer provided then was unclear, so this is a follow-up. Can a dependent spouse and children be included in the same I-829 petition with the principal applicant (i.e., the investor), even when the conditional resident status for the spouse and children will expire several months later than the principal applicant's conditional resident expiration date? Furthermore, even if the dependents are not included in the principal applicant's I- 829 application, once the principal applicant's I-829 is approved, will the dependents' I-829s be deemed to be approved, without filing separate I-829 by the dependents?
USCIS Answer: Yes they can be included as their status is directly related to the investor’s status as long as the adjudication of the I-829 occurs after the derivatives have reached the filing period described in INA § 216A. If the derivative beneficiaries have not been admitted to the United States for at least one year and nine months at the time that the principal’s I-829 is approved, they will be required to file a separate I-829 during the period described in INA § 216A.
[Q] 8 C.F.R. § 216.6(a) clearly states that where the principal applicant dies or gets divorced during the two-year conditional resident period, the former spouse and children can file I-829s together or separately. What if the divorce or death takes place after the 2-year conditional resident period but while the I-829 is still pending? What happens then? A reasonable interpretation would be that the answer remains the same.
USCIS Answer: The situation is handled in the same manner.
[Q] Is it a mistake for USCIS to classify on I-526 or I-485 receipt and approval notices an EB-5 case as "T5" when the EB-5 case combines both a regional center (RC) and a targeted employment area (TEA)? USCIS often classifies an EB-5 case as "T5" when it should actually classify the case as "I5". However, our understanding is that T5 (TEA) does not necessarily exclude I5 classification, which combines both TEA and RC features. What is the step that needs to be taken to correct the wrong classification symbol specified in the receipt or approval notice? This problem can arise in a following-to-join scenario where the U.S. consular post argues that the "T5" category indicated on an I-485 approval notice should be corrected to "I5".
USCIS Answer: There is really no need to seek a correction as they both indicate an EB-5 immigrant and that is the essential matter. If there are specific cases in which there has been a problem, please provide the information to us.
Question asked and answer given by USCIS during June 24, 2009 Stakeholders meeting were:
Is it a mistake for USCIS to classify on I-526 or I-485 receipt and approval notices an EB-5 case as "T5" when the EB-5 case combines both a regional center (RC) and a targeted employment area (TEA)? USCIS often classifies an EB-5 case as "T5" when it should actually classify the case as "I5". However, our understanding is that T5 (TEA) does not necessarily exclude I5 classification, which combines both TEA and RC features. What is the step that needs to be taken to correct the wrong classification symbol specified in the receipt or approval notice? This problem can arise in a following-to-join scenario where the U.S. consular post argues that the "T5" category indicated on an I-485 approval notice should be corrected to "I5".
USCIS Answer: There is really no need to seek a correction as they both indicate an EB-5 immigrant and that is the essential matter. If there are specific cases in which there has been a problem, please provide the information to us . . .
[Q] What types of security checks, including FBI name checks, are required for I- 526s, I-485s (I-526-based), and I-829s? Also, do all I-526s, I-829s and I-526-based I- 485s each require separate FBI name check clearance?
USCIS Answer: It depends on the type and level of benefit being requested. All petitions receive a minimum number of checks; some get additional checks. We can’t delve too deeply into that issue. In general:
IBIS checks last 180 days; FBI name check last 15 months; and Fingerprint checks last 15 months.
Depending on processing times, some people go through additional security checks because their previous checks have expired.
No, USCIS will send out notices to only attorney of record indicated on G-28 or to the client.
USCIS stated that because of their computer system constraints, I-829 cases cannot be tracked via USCIS Online Cases Status system with I-829 receipt notice number. Instead, they can be tracked with ASC receipt notice numbers sent out shortly after filing I-829 petitions.
A clear "no" is the answer given by USCIS on this issue. We do not believe USCIS wants to have to adjudicate cases that quickly, although I-485 adjudications have shortened due to faster FBI fingerprint checks. We believe the USCIS' goal should be 3 months for both I-526 and I-829. By regulations, USCIS is supposed to adjudicate I-829 within 3 months. If they don't follow their own regulations, how can they expect others to comply with these regulations?
Where does it say that USCIS should adjudicate I-829 cases within 3 months? See below 8 CFR 216.6 regulations. It says the decision on I-829 petition "shall be made within 90 days of the date of filing or within 90 days of the interview, whichever is later." But since there is almost no interview on I-829 filings, that means practically USCIS shall decide within 90 days.
(c) Adjudication of petition. (1) The decision on the petition shall be made within 90 days of the date of filing or within 90 days of the interview, whichever is later. In adjudicating the petition [emphasis added], the director shall determine whether:
(i) A commercial enterprise was established by the alien;
(ii) The alien invested or was actively in the process of investing the requisite capital; and
(iii) The alien sustained the actions described in paragraphs (c)(1)(i) and (c)(1)(ii) of this section throughout the period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence.
(iv) The alien created or can be expected to create within a reasonable period of time ten full-time jobs to qualifying employees. In the case of a “troubled business” as defined in 8 CFR 204.6(j)(4)(ii), the alien maintained the number of existing employees at no less than the pre-investment level for the previous two years.
All cases are on the same track and adjudicated within the same general processing time. Examiners are assigned to work on either regional center based cases or individual cases or both. RFE or Notice of Intent to Deny are issued where the examiners believe there is insufficient evidence to establish the requirements.
You will first obtain conditional permanent resident status, and that my friend, takes around 10 months or more. Here's the reason why. First, it takes anywhere 3 to 6 months to get I-526 immigrant petition approved, and then it takes around the same time to get EITHER I-485 adjustment application or Immigrant Visa approved. You become a conditional permanent resident ONLY AFTER you obtain EITHER I-485 adjustment approval or Immigrant Visa (IV) approval and enter the United States as intending immigrants.
I guess someone with I-526 petition approval could enter the United States as a tourist and then submit I-485 adjustment application and stay in the United States until it's approved, but we do not recommend this course, because it is inconvenient and also could be construed as a violation of U.S. immigration law. The best way is to obtain IV approval abroad via American Embassy in your home country and then enter the United States, unless you have been staying in the U.S. in nonimmigrant status.
Not really, although generally speaking, for more established regional centers, CSC adjudicators will probably just focus on the lawful source issues.
How fast particular cases are reviewed and adjudicated really depends on the particular officer reviewing your case, not the regional center itself. Sometimes, you might get lucky and get I-526s approved even within 3 weeks, but that is a very rare exception. Most I-526s take at least 3 ~ 5 months to get adjudicated. Sometimes, your case file may get mis-routed and sit there for some time, un-adjudicated.
Therefore, any regional center which says their cases are adjudicated faster than other regional center cases -- we don't believe them. But we do believe that they may have had several I-526 cases adjudicated very quickly especially when the EB-5 lapse deadline was approaching.
A detailed answer already exists in the "Process" menu on top. You can review this article at: www.eb-5center.com/I-829_who.
Whether the attorney is sufficiently capable to handle your EB-5 case depends on the attorney's character, intelligence, familiarity, knowledge, etc. with EB-5 area. In our opinion, to handle EB-5 case capably, the attorney should have at least 5 years work experience (some would even say 10 years) in general U.S. immigration law and also have handled (successfully) some EB-5 cases before.
Do not assume that all U.S. immigration attorneys have experience in EB-5 cases. Many immigration attorneys go through their career without having handled a single EB-5 case. This is not a knock on them at all, because they are probably more experienced or adept at handling different types of U.S. immigration cases, be it family-based immigration cases, deportation or labor certification cases, etc. Also, U.S. immigration law is a very complex area of law, and the immigration law changes quite often; therefore, it is not fair or wise to expect a U.S. immigration attorney to be expert on every area of U.S. immigration law. EB-5 area is pretty specialized, and there are not as many EB-5 cases as there are let's say family-based green card cases, so it is only logical that a minority of U.S. immigration attorneys will actually have had an exposure to EB-5 cases.
The DHS department was established on November 25, 2002, by the Homeland Security Act of 2002. It was intended to consolidate U.S. executive branch organizations related to "homeland security" into a single Cabinet agency. The following 22 agencies were incorporated into the new department. One problem is that in real life, these different agencies do not all work together and interpret U.S. immigration laws in the same way, even though the laws and regulations are the same -- thereby causing some problems and ordeals to permanent residents. I can give you many examples but I won't.
* Customs Service – Treasury
* Coast Guard – Transportation
* Secret Service – Treasury
* United States Citizenship and Immigration Service (formerly Immigration and Naturalization Service) – Justice
* United States Border Patrol (formerly Immigration and Naturalization Service) – Justice
* U.S. Immigration and Customs Enforcement (formerly Immigration and Naturalization Service) – Justice
* United States Federal Protective Service (part of ICE)
* Transportation Security Administration – Transportation
* Federal Law Enforcement Training Center – Treasury
* Animal and Plant Health Inspection Service – Agriculture
* Office for Domestic Preparedness – Justice
* Federal Emergency Management Agency
* Strategic National Stockpile and the National Disaster Medical System – HHS
* Nuclear Incident Response Team – Energy
* Domestic Emergency Support Teams – Justice
* National Domestic Preparedness Office – FBI
* CBRN Countermeasures Programs – Energy
* Environmental Measurements Laboratory – Energy
* National BW Defense Analysis Center – Defense
* Plum Island Animal Disease Center – Agriculture
* Federal Computer Incident Response Center – GSA
* National Communications System – Defense
* National Infrastructure Protection Center – FBI
* Energy Security and Assurance Program – Energy
Detailed information on DHS can be found at: http://en.wikipedia.org/wiki/US_Department_of_Homeland_Security
ASC is an acronym for Application Support Center, and their primary purpose is to render biometrics (digital fingerprint and photo taking) services for various immigration benefits related applications. Therefore, when EB-5 investor submits I-829 conditions removal or I-131 reentry permit application, the investor will receive ASC Notice telling him or her to go to a specific ASC office at a designated time and place to do biometrics. They are not the same facility as USCIS Field Offices; instead, they provide biometric functions needed for immigration applications that are submitted to USCIS.
Biometric functions used to be rendered by local USCIS Field Offices in the past, but recently, this function has been "farmed out" to ASC offices located near local Field Offices.
Our recent experiences indicate that CSC sends out ASC biometrics notices within several weeks of receiving I-485s or I-829s. Note that receiving ASC biometric notice does not mean that your case will be approved.
CSC and USCIS both say they try to adjudicate cases received at CSC in FIFO basis, but our experience has shown that so far, this is not true. You will often see I-829 cases filed 5 months ago approved, while I-829 cases received 11 months ago are still pending -- for the same EB-5 project with the same facts and job numbers. Also, the same thing with I-526 petitions. This may change in future, as some procedural kinks are worked out.
No, when you enter the U.S. on a visa waiver status -- the right conferred upon nationals of the Visa Waiver Program countries -- you cannot file I-485 even if you have I-526 approval. That's one of the benefits you are giving up when you enter the U.S. on "visa-waiver" status.
Except for limited circumstances where there are strong reasons why you and your family members cannot even come out to home countries even for 7 or 10 days or there are certain factors that may delay issuance of Immigrant Visas at the Embassies, we recommend consular processing over I-485.
No, there is no "concurrent filing" allowed for EB-5 cases, meaning you cannot and should not submit both I-526 petition and I-485 together at the same time. You have to wait until I-526 petition is approved, and if you are still maintaining your NIV status (note maintaining your NIV status is different from avoiding "unlawful stay" -- hard to explain it here), you can go ahead and file I-485 adjustment of status application.
Personally, I am not a fan of the concurrent filings because it raises too many issues. I am also not a fan of USCIS using lockbox addresses to receive applications.
[Q] I heard from someone that in one case, the USCIS California Service Center (CSC) initially approved the foreign national's EB5 petition. Once the CSC received the I-485, it issued a Notice of Intent to Revoke (NOIR) the previously approved I-526 immigrant petition. The CSC deemed the response to the NOIR as unsatisfactory due to the evidence provided and issued a Notice of Revocation for the previously-approved petition. Can this kind of thing happen to me also?
First, I don't think this occurred recently, but this sort of decisionsdid occur from time to time many years ago. In the past, one of the problems with EB-5 Program was that after I-526 petitions were approved often by another Service Center, CSC (where the applicant resided and had jurisdiction over the filed I-485 case) decided that the previous examiner mistakenly approved I-526 petition.
Currently, this kind of happening is very rare (as it should be), and is justified only where there were some adverse, material changes that CSC became aware of after I-526 petition approval, based on which CSC strongly believed that the initial I-526 was mistakenly approved. For example, if certain Regional Center project turned out to be a fraud, or if the applicant-beneficiary lied about some material facts, etc., that would be a justifiable ground for revoking the initially approved I-526 case even during I-485 stage.
As of May 4, 2011, we think there are around 30 CSC examiners working on EB-5 related applications, and USCIS' goal is 5 months for I-526 and under 6 months for I-829s.
However, we do not know whether some EB-5 examiners are rotated to other divisions, etc.
[Q] I hear about the Regional Center Program's sunset date being extended temporarily several times. Will the success or failure of extensions adversely affect persons like me who already obtained conditional permanent resident status through a RC EB-5 Program?
No, not at all. Since you and your family already obtained CPR status, this sunset or extensions will not have any adverse effect on your ability to file I-829 case.
Currently, the RC Program is undergoing temporary extension until it can be extended for either 5 years or made permanent. We believe at minimum 5 years extension of RC Program will take place before end of 2009.
First, USCIS (specifically, California Service Center) can approve your I-526 immigrant petition, and send you an Approval Notice to prove the approval.
Second, CSC examiner of your I-526 petition can send you what is called RFE (Request For Additional Evidence) requesting additional documents or explanation on your case. Getting RFE may delay adjudication of your I-526 by around 2 months, but RFE is not something to get upset or worry about.
Third, CSC examiner can send you a denial letter. It would be a very rare case to deny your case outright unless the CSC examiner believes that your I-526 case cannot be approved based on a legal basis.
The most important thing about I-526 petition is to make sure certain documentary evidences can be obtained by EB-5 client to prove certain points. If this can be done, it should be no problem to get I-526 petition approved. Really, getting I-526 petition approved is not all that hard, although there may be a lot of paper work involved.
Depends on the country of your residence. After you receive an approval notice of I-526 immigrant petition, it can take anywhere between 4 to 7 months to obtain Immigrant Visas for you and your family members.
As some of you may already know, "AILA" stands for the American Immigration Lawyers Association. I would say most "serious" US immigration attorneys do belong to AILA, but I can imagine very experienced U.S. immigration attorneys who choose not to belong to AILA, simply because they know enough about their area of practice and they can keep up with new developments on their own.
The level and years of experience in certain fields of U.S. immigration law differ greatly among even AILA U.S. immigration attorneys. Anyway, belonging to AILA should not be the sole criteria. You should retain an experienced and capable US immigration attorney regardless of whether that attorney is an AILA member or not. Also, I would even say I rather go with an immigration attorney not as experienced but who is very motivated, smart and will work hard for you, rather than an experienced immigration attorney who you think is a lazy bum and not very responsive to your questions. Anyway, it is up to you to decide if the person you want to retain is capable in the EB-5 area.
** Having said this, said writer has been an AILA member for I think over 16 years or so, but really, this fact alone should not be the reason why you should retain someone.
One reason is that only after I-526 petition approval, can EB-5 investor proceed with either IV processing or I-485 adjustment. Second reason is that unless I-526s are approved, the investors' moneys deposited in the designated escrow cannot be released to the Limited Partnerships acting as a New Commercial Enterprise (the "NCE") for EB-5 projects. This means the release of the funds will be delayed, causing sometimes insurmountable problems. The EB-5 projects, involved with real projects in a real world, with real commercial constraints, cannot afford to keep waiting for a portion of their project financing.
Many investors think that there is an ulterior reason(s) for RCs wanting the moneys released as soon as possible, but this just is not so. RCs or principals of any EB-5 projects want I-526 approved, just as much as the investors, but for somewhat different but related reasons.
Most EB-5 cases probably choose to do consular process for many reasons we will not address here. The procedure is the submission of necessary documents and showing up at the Immigrant Visa section at the American Embassy in your country of residence and submit the docs, do fingerprints and then stand at the bank counter like window and answer consular officer's questions for about 10 minutes. That's it. But the waiting in between can take total of 1 to 3 hours.
Sometimes, certain American Embassies in certain countries might not be too familiar with EB-5 Regional Center cases, but with an approved I-526 immigrant petition in hand, consular officer must either approve the case, ask for pertinent documents or return the I-526 approval back to USCIS if the consular officer sees a clear failure to meet the requirements or a fraud.
Our answer is around 1.5 years before your estimate immigration date. This is to give you more than enough time. Keep in mind that although it is easy to delay the processing, it's hard to speed up the processing. So, an early start is important. Besides, who knows if and when the $500,000 USD TEA amount will be raised from $500,000 to a higher amount?
Unlike I-526 petition procedure, if I-829 is denied, there is no per se appeal right, but at deportation hearing, USCIS will have the burden to prove by preponderance of the evidence that they were right to deny the I-829 petition. Because you have certain rights in the deportation hearing, USCIS will make sure you did not meet the requirements before denying any I-829s.
Also, if you are unfortunate to be in this situation, and the denial results from a questionable interpretation of EB-5 law by USCIS, then you may have other federal court avenue to fight the denials. At this point, you probably need a good immigration attorney who is knowledgeable about EB-5 law and has experience of litigation at federal courts.
The problem is this litigation path is very costly, although the court decision may force USCIS to pay some or all of the litigation costs, including attorney fees.
No appeal shall lie from this decision; however, the alien may seek review of the decision in deportation proceedings. In deportation proceedings, the burden shall rest with the Service to establish by a preponderance of the evidence that the facts and information in the alien's petition for removal of conditions are not true and that the petition was properly denied.
Yes, below is the language. However, the below regulation is not being followed.
(1) The decision on the petition [I-829] shall be made within 90 days of the date of filing or within 90 days of the interview, whichever is later.
Ironically, if you do not file I-829 within the 90-days window period, then your CPR will terminate, but if USCIS does not adjudicate I-829 within 90 days as stated above, nothing happens.
The above regulatory language clearly shows that the Congress (and actually, USCIS itself) at one time thought it was perfectly reasonable or necessary that I-829 be decided within 90 days from the filing date.
No, there is no telephone number or email address at CSC itself. However, you can check status of your EB-5 case by going to: www.eb-5center.com/Case_Checker.
If you have any other questions regarding your EB-5 case, or if you have not received a decision from USCIS within the current processing time listed, you can contact the USCIS Customer Service at (800) 375 – 5283 or 1-800-767-1833 (TTY) and speak to a live person, but they cannot tell you the reason why your case is taking longer, but they do relay your message to CSC.
In the event there is an unreasonable delay with your case, ask your immigration attorney of record to contact the USCIS EB-5 Headquarters in Washington, DC. Writing letters directly to CSC do not appear that helpful, as any responses appear to be standard boilerplate language.
According to USCIS, there are 10 examiners who work solely on EB-5 related applications, such as I-526, I-526-based I-485s, I-829s and finally Request/Proposal to receive Regional Center designation to carry on business as a regional center. Actually, that's not that many given the fact that delays will in real world make it very hard to start bona-fide EB-5 projects.
Even though the filing fees for EB-5 related applications are relatively high, the filing fees received from EB-5 cases do not go directly towards improving the operation and adjudications of EB-5 related cases. We really feel that a faster processing would have a great effect of encouraging more EB-5 cases to be filed even during this tough economic times.
Under the EB-5 law, spouse and dependents can be included in the same I-829 condition removal application only if they obtained CPR status within 3 months period after the Principal investor obtained CPR status. That means you have to apply for I-829 separately, and under the current EB-5 law, you have to pay separate filing fee.
First, all visa waiver entrants are given only 3 months of stay, and they cannot change status or adjust in the United States, even if they have an immigrant petition approved and they are maintaining their status in the U.S. That's the benefits the visa waiver entrants forego in exchange for visa waiver benefits.
I-526 immigrant petition: $1,435 regardless of whether dependents are included or not.
I-829 condition removal: $2,850 plus a biometrics fee of $80. An additional biometrics fee of $80 must be paid for each conditional resident dependent, listed under Part 3 or Part 4 of Form I-829.
Why is it so expensive relative to other types of applications? Supposedly, it's more time-consuming to review and decide EB-5 applications. We believe EB-5 investors would not mind paying the relatively high filing fees if the processing times were quicker. Hopefully, the processing times will come down.
Unfortunately, not yet, but USCIS is looking into this possibility, but don't hold your breath.
No, although "concurrent" filing is allowed for some Employment-based categories, I-526 immigrant petition and I-485 adjustment cannot be filed together at the same time in the United States. USCIS does not like "concurrent" filing too much, so we do not see USCIS allowing concurrent filing in near future, if ever.
"Concurrent" filing is helpful when the applicant will have a hard time maintaining status while an immigrant petition is pending. This means it will be very difficult for an applicant who entered the United States to file I-526 petition and then be able to adjust in the United States.
You and your dependent family members should submit I-829 condition removal application to CSC during the 3 months window period, beginning from 21st month to end of 23rd month from the acquisition of CPR status.
The exact point in time at which the conditional resident status (CPR) is acquired is at the time the applicant or dependent family member enters the United States as intending immigrant with the valid immigrant visas, or at the time I-485 adjustment application is approved by the USCIS.
There may be a Request For Additional Evidence (RFE) issued by the USCIS examiner in charge of I-526 petition. Responding to the RFE and getting a decision may take another 2~3 months. RFE may be very simple or complex. Sometimes, the RFEs raise valid issues; sometimes, USCIS examiner may not have understand the submitted information correctly; and sometimes, the USCIS examiner may have overlooked the documents already submitted. It all depends.
It varies dramatically with the available staff, number of EB-5 related cases pending and resources of CSC at any applicable time. We would say on the average it takes anywhere between 5 to 7 months from the time I-526 petition has been submitted.