[HOT] What's right and wrong about EB-5 Program?

I read several articles addressing the issue of what is wrong with the EB-5 Program, so let me discuss this issue a little more objectively, by also discussing what is right about the EB-5 Program.

What is right?

After the Regional Center EB-5 Program was "revived" from its forced hibernation in 2002, the RC Program has proven itself to be a viable avenue for foreign investors whose primary objective is to obtain green cards (both conditional and permanent green cards). Those who continue to say that the EB-5 RC Program has not shown itself to be a viable means to "permanent" green cards are plain wrong on this point.

By consenting to meeting with stakeholders and AILA members on a periodically, the USCIS has shown that it is supportive of the RC Program and is trying to address certain EB-5 related issues (mostly regarding the job-creation) that have not yet been clarified, but has stated several times that guidance memo clarifying certain issues will be forthcoming soon. It is expected that USCIS' positions on these issues will not please everyone, as there is no unified positions supported by all Regional Centers or EB-5 practitioners. Of course, the foreign EB-5 investors really have no voice in this matter, and the loudest voice is, of course, from the Regional Centers themselves, and followed by, in the distant second place, immigration attorneys represented by American Immigration Lawyers Association (AILA).

There are no fraudulent Regional Centers, to our knowledge, who willfully violate the EB-5 law, and the USCIS has taken a more active position of letting the public know the Regional Centers that have been designated by the USCIS. There continue to be more and more regional center designation applications being approved, and as I stated in other places, I believe the regional center market is saturated relative to the number of potential EB-5 investors who are willing to immigrate to the United States under the current terms and conditions imposed by the EB-5 Program.

What is wrong?

Many U.S. agencies, including USCIS, USCBP, Field Offices scattered throughout the United States, Application Support Centers and NVC and Embassies do not work together in a seamless manner. Sometimes, they seem to be not following their own rules and are not familiar with the EB-5 law. This gives an impression to both EB-5 practitioners and EB-5 investors that the United States government does not want them to emigrate to the United States but just want their moneys but not them. This is not very smart on the part of U.S. government, as our experiences have shown that these EB-5 investors are usually "self-made" millionaires who are likely to contribute to the United States in various ways, without receiving public aids from the U.S. government.

There is inconsistency in the adjudication of I-526 and I-829 cases in that the processing times for the cases submitted for the same EB-5 projects differ greatly: Some are approved in 4 months while others are approved in or 7 or 8 months, and the adjudication does not appear to follow the First-in, First-out (FIFO) system.

It has not been able to find a reasonable balance between the desire to attract foreign capital and create new jobs and what kinds of evidences are acceptable to show the job-creation, and has not been sensitive to the needs of the most important group -- EB-5 investors' needs to keep residing and working in the United States without interruption. Eventually, the USCIS will have to delve into the issue of what constitutes "reasonable" job-calculation methodologies mentioned in the EB-5 regulations, but this also raises a question about whether USCIS possesses capability to set a practical, working definition of "reasonable" methodology. On one hand, if a liberal approach is taken, economists will come up with all kinds of "creative" methodologies to estimate the number of jobs which will in the real world never be created; on the other hand, if a strict approach is taken, some bona-fide EB-5 projects who may encounter certain hiccups that may arise in the commercial settings along the way will be unable to meet the job-creation requirement within the time-frame imposed by the USCIS.

In conclusion, the USCIS is faced with a decision whether to allow all kinds of projects under the sun to qualify as EB-5 projects, or to set clearer standards so that smaller number of projects which fall within the parameters imposed by the current EB-5 law will be allowed to proceed as EB-5 projects. We do not believe USCIS can or will shift too drastically from their current interpretations/positions of the EB-5 law; therefore, the USCIS' job should be to set clear standards, clarify important issues and then process EB-5 cases expeditiously, rather than change the EB-5 law too drastically. Congress will have to step in if it wishes to make drastic changes to the EB-5 Regional Center Program. However, watering down the requirements of the EB-5 Program will have certain unintended consequences, one of which will lead to a proliferation of too many designated regional centers.