On Oct 08 2013 by H. Ronald Klasko

New Developments in I-924 Regional Center Processing

The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.

In this blog, I want to share some of my recent experiences relating to new procedures implemented by USCIS in connection with the processing of I-924 applications.

It appears that the goal of these new procedures is to speed up the processing of I-924 applications, prevent repetitive RFEs and deal with issues that can be clarified by direct communication with adjudicators rather than by the lengthy and time-intensive procedures that were previously utilized.

The first new procedure involves “Requests for Clarification”, which can be in the form of email requests or requests for telephonic conferences.  This appears to occur mostly or exclusively following a response to an RFE.  If questions remain following the response, USCIS has begun to send an email request for clarification rather than a second RFE.  The request for clarification generally comes with a very short response time (usually 2 weeks or less).  Experience so far indicates that extension of that time period is possible.  On occasion, instead of or in addition to the email request, the USCIS adjudicator requests a telephone conference with the principals and the attorney to resolve any outstanding issue.

I certainly view this as a favorable development and certainly far better than multiple RFEs.  The major problem is issuing a second RFE in the guise of a request for clarification.  In at least one instance, I have seen a request for clarification that requested far more information and documentation than the RFE requested.  Since the request for clarification comes with a far shorter response time than an RFE, I, on behalf of the AILA EB-5 Committee, will be advocating for the use of the request for clarification procedure to really clarify discrete issues rather than to request substantial documentation with very short response times.

The other new procedure of note is the long-awaited implementation of the EB-5 Decision Board.  This is a new procedure available only in connection with I-924 applications for dealing with complex issues that need to be resolved before a regional center designation application and/or an exemplar project can be approved.  Thus far, only a relative handful of Decision Board interviews have been completed.  I will share my experience with two such Decision Board interviews, as well as a third on which I was consulted.

The process is initiated by an email Notice of Interview.  The interview is usually scheduled about one month in advance.  The Notice indicates the issues to be discussed at the interview, although in at least one instance USCIS wanted to explore an issue not raised in the Notice of Interview.

The applicant has a choice of attending the interview in person or telephonically.  In-person interviews are scheduled at the California Service Center in Laguna Niguel.  My experience is that the in-person interview is far preferable for achieving a dialogue with USCIS on the issues of concern.  During the telephonic interview on which I participated, the USCIS personnel chose to remain anonymous and did not show any interest in engaging in a dialogue regarding areas of concern or reactions to positions that I advocated on behalf of my client.

The in-person interviews appear to be very different.  All USCIS personnel are identified – usually including an EB-5 economist, the EB-5 adjudicator assigned to the case, and the head of the EB-5 unit.  At least in the interviews of which I am aware, most or all of the questions are asked by the EB-5 economist, who comes prepared with a list of questions and issues to be resolved.  The interview is a hybrid of an informal meeting and a formal legal proceeding.  Witnesses are sworn in, new evidence can be presented but there is no formal record or recording of the proceeding.  It is possible to present additional evidence following the interview.  Given that there is no official record of the proceeding, I suggest that it is important to present a written record of the evidence provided and at least a summary of the testimony presented.  USCIS has committed to issuing a final decision within 30 days of the interview.

There are certainly indications that USCIS processing times of I-924 applications are starting to speed up.  Hopefully, these new procedures will contribute to this trend.