On Sep 04 2018 by Daniel B. Lundy

Successful Expedited Case Processing in EB-5

In April 2017, USCIS approved a request for expedited processing of the I-924 Exemplar Application and related I-526 petitions for the Appalachian EB-5 Regional Center’s Tryon International Equestrian Center Project. In the time since I filed the expedite request on behalf of this client, the I-924 Exemplar application for the project was approved, and a number of I-526 petitions for investors in the project – some of whom we represent, and others who we do not represent – have been approved, on average, within 45 to 60 days of filing.

Although USCIS has long allowed any petitioner or applicant to request expedited processing in any immigration matter, including EB-5 applications and petitions, and we have previously obtained expedites for one other EB-5 project (in 2012), and several individual investors, the fact that the Tryon exemplar and I-526 petitions have been granted expedited processing has created some controversy in the industry and prompted a lot of misinformation and disparagement of the project and those who speak of the expedite. Some people have contended that there is no such thing as expedited processing, or USCIS can expedite a single petition or application, but cannot expedite all I-526 petitions affiliated with a specific project. As the attorney who prepared and filed the expedite request, and who has been involved in other cases with approved expedite requests, I would like to set the record straight. I would also like to talk a little bit about what makes a successful expedite request.

First, USCIS can, and does in appropriate cases, expedite the processing of any petition or application for immigration benefits. While the decision to grant or deny an expedite request generally lies within the discretion of USCIS, USCIS has published criteria for when it will exercise its discretion. According to USCIS:

USCIS review​s​ all​ expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership. ​The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met.​​

​USCIS may expedite a​ petition or application if it meets one or more of the following criteria: ​

  • Severe financial loss to company or ​person​;​
  • Emergency situation;​
  • Humanitarian reasons;​
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​
  • Department of Defense or ​n​ational ​i​nterest ​s​ituation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);​
  • USCIS error; or​
  • Compelling interest of USCIS.​

 

See https://www.uscis.gov/forms/expedite-criteria (last visited August 16, 2018).

Second, although USCIS will decide an expedite request on a case by case basis, that does not mean a petition by petition basis. Since the decision to expedite is within the discretion of USCIS, there is nothing that says it can only exercise it one I-526 at a time. We have personally been involved in obtaining expedites for two EB-5 projects. The first EB-5 project we worked on that obtained an expedite was in 2012. The second EB-5 project I worked on that obtained an expedite was the Tryon International Equestrian Center. In both cases, the request was to expedite the I-526 petitions associated with a particular EB-5 project. The Tryon request also included a request to expedite the I-924 exemplar allocation, which was granted. To the best of our knowledge, all I-526s associated with both of those projects were in fact expedited. In the case of Tryon, USCIS has consistently been processing these petitions in 45 to 60 days.[i]

Although we were not the attorneys, we believe that in the last five years, there have been two or three other projects that have been granted expedited processing of their I-526 petitions by USCIS. Certainly, expedites are rare in EB-5, but they exist. We believe that these are not the only two cases in which USCIS has granted expedited processing to all I-526 petitions affiliated with a particular EB-5 project, however there may only be two or three other examples since 2012.

So what does it mean to have an expedite approved? USCIS has indicated that an approved expedite request will result in the petition or application being moved ahead in line of other petitions or applications. Generally, USCIS will ensure that an expedited petition gets on the desk of an adjudicator within 45 days. However, this does NOT mean that USCIS will speed up the actual review of the case or any associated background checks. USCIS has made it very clear that the integrity of the immigration system is not diminished in any way by expedited processing. Security checks are not rushed, but are completed as thoroughly as normal. The same is true about the consideration of the merits of the petition.

Getting an Expedite Request Approved

While the expedite criteria provide some guidelines, good facts and a compelling presentation are necessary. When it comes to EB-5 projects, there are a few of the grounds that are more readily applicable than the others. It would be, for instance, very hard to describe an emergency situation that requires the expediting of the I-526 petitions associated with a given EB-5 project. Similarly, outside of disaster relief efforts, it is hard to imagine an urgent humanitarian need. National interest is usually the most compelling reason.

In the case of the Tryon Equestrian Project, the project is expected to bring more than 6,000 jobs to a region of Appalachia suffering from chronic poverty. The Appalachian region is consistently one of the poorest, hardest hit economic regions in the country, with persistent unemployment and poverty. This Project represents a long-term, sustainable, economic cluster that includes a demand generator (the Equestrian Center) and the corresponding support and supply industries that will create permanent economic improvement and opportunity in this region. Unlike, say, a hotel or office building in a major city, which generally serve existing demand, this project creates its own, sustainable, demand, which in turn leads to permanent job creation. The expedite request was supported by a non-profit organization, and by the U.S. Department of Agriculture. Although the main thrust of the expedite request was based on national interest, we also included an argument that the interests of USCIS, which include serving the original goals of the EB-5 program by facilitating the construction of an economic engine in a rural and high unemployment area, would be served by approving the expedite. The project also had broad political support from both major parties, and our client was able to do a uniquely impressive job gathering support and documentation and helping to develop a multi-tiered approach. Ultimately, we believe that this project squarely met the expedite criteria and deserved to be expedited.

In the case of individual applicants and petitioners, we have had success obtaining expedited processing for people with urgent medical needs, ailing or aging family members, loss of lawful resident status in the current country of residence, and for other reasons.

In seeking an expedite, we always try to address as many of the expedite criteria as possible. Even if the basis for the expedite is not national interest, we will try to do what we can to show that expediting the petition has a positive effect. Similarly, we will emphasize any potential financial loss, any humanitarian factors, and we will always try to get support from a government agency, non-profit, or quasi government entity.

Obtaining expedites is part science, part art, and a healthy dose of good story telling (non-fiction, of course). If you are interested in discussing the possibility of an expedite for your EB-5 project or individual application or petition, please feel free to contact me to set up a consultation.

 

[i] In the first, the request was made to expedite all the I-526 petitions associated with the project.  In the case of the Tryon Equestrian Project, we had filed an I-924 Exemplar application, so we made the request for both the I-924 and the related I-526 petitions.  It just so happens that at the time the request was granted, no I-526 petitions had yet been filed, so no I-526 receipt numbers appear in the USCIS letter approving the expedite request.  Regardless of this, USCIS has consistently been processing these petitions in 45 to 60 days (sometimes longer if USCIS issues an RFE on the investor source of funds).

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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