The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
Working in the trenches of the EB-5 process, I am often asked how this important program could be improved to better meet the national interest that it furthers.
In no particular order, here are my thoughts:
1. Either USCIS must provide far more extensive business training to EB-5 examiners or it should partner with another agency in the government that can provide such expertise.
2. USCIS must increase the number of fully-trained adjudicators in order to bring processing times of both individual EB-5 petitions and regional center applications to acceptable levels commensurate with the needs of developers for capital on pending projects.
3. Both the regional center application process and the project pre-approval (exemplar I-526) process must be consultative rather than adversarial and must be completed promptly.
4. The notorious December 2009 “Neufeld Memo” must be rescinded and replaced with a policy that is both consistent with the regulation and that recognizes that business plans constantly change. Irrespective of a “material change” in the business plan, if an investor has sustained his investment and created 10 jobs, his conditions should be removed.
5. USCIS should publish statistics on regional center activity, including number of investors, number of approved and denied I-526 petitions and number of approved and denied I 829 petitions. This information is material in enabling investors to make intelligent choices in their investments.
6. USCIS should actively monitor regional centers. Regional centers with a record of denied petitions or with a long record of inactivity should be subject to careful review.
7. USCIS should follow the law in adjudicating EB-5 petitions and condition removal petitions. If USCIS believes that the regulations are inadequate, it needs to go through notice and comment rulemaking rather than adjudicating based on policy memos and other “lore” that is not supported or supportable by the statute, regulations or precedent decisions.
8. USCIS should implement premium processing and concurrent processing of I-526 and I 485 applications, as is done with other employment-based petitions, to provide expedited consideration as is provided for family members and employees of businesses.
9. In pooled investments and regional center investments, the determination of a “targeted employment area” should be made at the time of the first investor’s investment. Multiple investors in the same projects should not have to invest different amounts of money to qualify based on the same project, and developers should be able to have the assurance of the number of investors that will be required to meets its capital investment needs.
10. Although not within the realm of USCIS, Congress needs to make the regional center pilot program permanent in order to remove any fears in the investment community that this is a temporary program that could be shut down, jeopardizing their potential immigration future.
