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USCIS issued on Feb. 14, 2013 an updated draft for further comments. See:
Dear USCIS Stakeholders,
U.S. Citizenship and Immigration Services (USCIS) is continually focused on enhancing its administration of the EB-5 program. As part of our efforts we have undertaken an iterative policy development process which includes the posting of a draft EB-5 policy memorandum for public comment. We would like to thank stakeholders for providing comments on previously posted versions of the EB-5 memorandum.
Not guilty until proven, but the charges are serious, including forgery of EB-5 project documents. One thing this case demonstrates is that some Chinese EB-5 investors -- and more importantly, some Chinese emigration consulting companies -- do not vet the projects carefully. Especially if the operator lacks good track records, you better check out the project more thoroughly.
Washington, D.C., Feb. 8, 2013 — The Securities and Exchange Commission today announced charges and an asset freeze against an individual living in Illinois and two companies behind an investment scheme defrauding foreign investors seeking profitable returns and a legal path to U.S. residency through a federal visa program.
Response to Ombudman recommendation and explaining tenant jobs in context of EB-5 projects:
USCIS could have made the Guidance Memo more clear and easier to comply, but it's not their style, I guess.
On December 28, 2012, USCIS releases the following email.
In May 2012, USCIS published operational guidance on EB-5 adjudications involving the tenant-occupancy methodology which explains how USCIS policy on deference to prior EB-5 adjudications applies in the context of determinations regarding the reasonableness of an economic methodology. Since this guidance was issued, USCIS has carefully considered responses to Requests for Evidence (RFEs) as well as input from other relevant government agencies and has issued further operational guidance to govern the adjudication of these cases. This guidance will be applied to pending cases involving the tenant-occupancy methodology, as well as cases filed on or after the date of this guidance.
Don't you think we deserve better services from USCIS for these fees?
New fee allows USCIS to recover the costs of processing immigrant visas after individuals receive their visa packages from the Department of State abroad
WASHINGTON—On Feb. 1, 2013,U.S. Citizenship and Immigration Services (USCIS) will begin collecting a new USCIS Immigrant Fee of $165 from foreign nationals seeking permanent residence in the United States. This new fee was established in USCIS’s final rule adjusting fees for immigration applications and petitions announced on Sept. 24, 2010.
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.