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Below are informal (not as complete as I would like) notes I took on the above teleconference. Going into this event, many EB-5 stakeholders were wondering whether an updated or final "overarching" guidance memo will be released in advance of the teleconference. That has not happened. Also, stakeholders were also wondering why so many I-526s have been pending for so long unadjudicated. USCIS cannot keep on delaying any longer; it's not fair to EB-5 investors and Regional Centers. And frankly, USCIS is shirking its duty to review and adjudicate cases. We heard that some RCs are even filing mandamus actions to force USCIS to adjudicate EB-5 cases; that's truly a shame and a waste of taxpayers' money and government resources.
Let's say you are considering pursuing a direct EB-5 case based on a planned establishment of new franchise stores. It could be a franchise store or a non-franchise store. Chronologically, the below are the steps you should take.
- How many franchise stores do you have to establish to meet the 10 new (excluding you and your family members), full-time positions? If one store will require only 6 full-time positions, then you better plan on setting up at least two (2) stores to meet the job requirement.
We disagree with the conclusion stated in the above article that the approval of the Los Angeles Marriott Hotel project is an indication that USCIS has reached a positive conclusion on the tenant-occupancy issue. We take it as an indication that USCIS has carved out an exception to hotel developer/management related jobs from the tenant-occupancy issues which still have not been decided.
According to Charles Oppenheim, the Chief of Visa Controls and Reporting Division at the U.S. Department odf State who spoke at a recent IIUSA conference in Washington D.C., if the current growth trajectory continues for Chines EB-5 investors investing in the EB-5 regional center program, he anticipates that the issuance of Green Cards to Chinese investors will be suspended in the second half of 2013. We definitely see the priority date waiting taking place late 2013 or early 2014.
USCIS has stated in October 2012 EB-5 teleconference that generally this arrangement will not be allowed. See also: http://www.uscis.gov/err/K1%20-%20Request%20for%20Participation%20as%20R...
Mr. Joseph Whalen has posted his observations on a redacted RFE involving tenant-occupancy issues. We do not know how recent the RFE is, but when you read the RFE, it seems like it's getting very difficult to get a renovation or development projects involving tenant jobs, even where only indirect tenant jobs are counted, based on a rationale that these indirect/induced jobs are based on the direct tenant jobs. It seems USCIS could reject any tenant jobs (even new ones, not relocated ones) based on a rationale that there is no sufficient nexus.
The below are my personal notes I took during the call. Everyone at USCIS did a good job moving along the meeting and teleconference, but they could not answer when RFE'd cases involving "tenant-occupancy" issue will be decided and when Director Mayorkas' draft or provisional memo will be issued, except to say another "Conversation with Director Mayorkas and Rob Silvers" will take place soon. Also, I am guessing here, but it seemed to me that Mr. Rob Silvers did not quite realize the extent of delays being encountered by I-526s and I-924s, even where there was no "tenant-occupancy" issue. There were many "We will review this issue and get back to you." answers to several very important questions.
My two concerns/complaints are as follows:
1. Seems like some stuff is going on at CSC freezing adjudications of all I-526 cases, except for pre-approved project cases, or any project which was pre-approved but changed in some aspects. Administrative problem, multiple lawsuits or election time effects, but seems like no one is willing to make any decisions. Heard one RC based hotel project recently obtained I-526 approvals after almost 17 months of waiting -- not the way for USCIS to run the EB-5 Program.
2. Seems like SEC is getting involved more.
A very interesting article on some potential issues for Chinese EB-5 cases. Does this article raise unfounded fears for Chinese EB-5 cases, or are these fears justified? A nicely-written article though.
[HOT] What are some of the packet preparation procedures for EB-5 petitions, including I-526 and I-829s?
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.
They were two friends who were executives and shareholders of the same successful company in their home country. We are now in the process of handling their IV consular processing. For confidentiality purpose, we are not even disclosing their home country because they are from a country in SE Asia where not many even attempt EB-5 cases. [Hint: It's not China, Vietnam, Korea, Taiwan, Japan or Hong Kong.]
Having handled I-526 cases in this particular country, we learned helpful information on this country's business practices and system that are relevant to EB-5 cases and procedures.
What caused this, because as far as we know, most of the RCs are not involved in any fraud. Also, USCIS is very tough on EB-5 cases. See the article at:
Also, isn't this something that USCIS should be letting the EB-5 stakeholders know, since this audit seems to have leaked already?
In essence, requisite jobs must be created by an entity that qualifies as a NCE or JCE.
For internal research purpose.
Copy of the Complaint: http://www.courthousenews.com/2012/09/17/RomanEmpire.pdf
Updates on the case:
Status Conference Order: http://www.slideshare.net/BigJoe5/carlsson-oct-11-2012-conference-minute...