You are hereEB-5 Processing & Procedures

EB-5 Processing & Procedures


FAQs on step-by-step procedures involved in all phases of EB-5 processing

[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.

[HOT] [Q] If my I-829 gets denied, will I receive a notice of removal proceedings also known as NTA notice from USCIS?

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.

[Q] What does the notation "CRI89" mean in context of EB-5 case?

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.

[HOT] What is a "pre-approval" for an EB-5 project?

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.

[HOT] [Q] How long does CSC take to decide I-526 petitions?

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.

[HOT] [Q] Can I enter the US on a tourist visa and start and complete an EB-5 case?

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.

[Q] How does the direct email communication with CSC work for I-924 regional center designation or amendment case?

See here:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176...

Direct Email Communication with EB-5 Regional Center Applicants
Questions and Answers

Introduction
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.

[Q] Do I or my family have to be present in the US when I file I-829 or during the time CSC is adjudicating I-829?

The regulation governing I-829 conditions removal, 8 CFR 216, reads:

[Q] If I move while my I-526 or I-829 is pending, what must I do?

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.

[HOT] [Q] What are some complaints of how USCIS administers or adjudicates EB-5 cases?

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.

[Q] Can USCIS appeal an EB-5 decision to AAO for review?

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.

[HOT] [Q] If there are 50 investors in a RC based project, and CSC approves I-829s for 20 investors, does this mean others will be approved?

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.

[Q] As of July 1, 2011, how long is it taking for USCIS to process I-485s based on I-526 approvals?

As of July 1, 2011, our experience has been around 4 to 6 months.

[Q] Which divisions within USCIS oversee and administer the EB-5 Program?

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.

[Q] Why are Iranian EB-5 cases often more difficult to handle?

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.