USCIS EB-5 (Immigrant Investor) Stakeholder Quarterly Engagement
On December 16, 2010, U.S. Citizenship and Immigration Services (USCIS) Service Center Operations (SCOPS) Directorate and the Office of Public Engagement (OPE) hosted the EB-5 Immigrant Investor Quarterly Engagement. OPE advised participants that the session was for USCIS to listen to the views and information of individual stakeholders and not for the purpose of obtaining group or consensus advice.
In addition to providing various updates on statistics, processing times and the recently instituted EB-5 related forms, USCIS also responded to input received from the public prior to the engagement. USCIS also announced the posting of USCIS’ 2009 EB-5 memorandum to the agency’s website for a period of 30-days in which the public will have an opportunity to provide input.
EB-5 Statistics and Case Processing Times
With the end of fiscal year on September 30, 2010, USCIS shared that the agency received 1,955 Form I-526 Immigrant Petition by Immigrant Entrepreneur, and 768 Forms I-829 Petition by Entrepreneur to Remove Conditions. Approval rates for I-526s increased to 89% from 86% in fiscal year 2009. In 2010, the approval rate for Form I-829 Petition by Entrepreneur to Remove Conditions declined to 83% from a previous 86%. Although USCIS has not conducted an analytical study to identify factors that contributed to an increase in I-829 denial rates to 17% in FY 2010 from a previous 14% in FY 2009, some of the most common reasons the agency encounters are, but not limited to the investor not sustaining the investment for the entire two year conditional legal permanent status period, and not creating the required 10 full time jobs for U.S. workers.
Ninety percent of I-526s are filed through regional centers. USCIS also shared EB-5 visa usage in fiscal year 2010 by country of chargeability and highlighted that at 41%, Chinese investors received the highest number of EB-5 visas.
USCIS shared regional center filing receipts and final case actions in fiscal year 2010 highlighting that that 110 initial regional center proposals were received, 36 regional center proposals were approved while 30 were denied. Also received in fiscal year 2010 were 42 amended regional center proposal filings, typically to modify the scope or activity to be conducted in a previously approved regional center.
In fiscal year 2010, a total of 1,885 immigrant visas were issued which is a decrease from the previous 4,218 in fiscal year 2009. USCIS indicated that in 2009, the regional center pilot program was poised to expire and as a result, USCIS placed a heightened focus on adjudicating I-526 petitions and getting them over to the U.S. Department of State. Since 85% of I-526 petitions that USCIS approves are sent for consular processing, USDOS also had some ambitious procedures in place to give these applications priority on their end.
In terms of processing times, USCIS leadership establishes target processing times for EB-5 related petitions and thus far, current processing times are at or within one month of the target processing times as noted: Form I-526, currently processed within the five month target processing time frame; the target for Form I-829 is 5 months and these are currently processed in 6 months. Initial regional center proposals have a 4 months target processing time, and currently USCIS is processing these within 5 months. Regional center amended proposals have a four month targeted processing time; however, USCIS is currently processing these within one month. Furthermore, USCIS matches responses to request for evidence (RFE), to the corresponding case and strives to finalize the case within 30 days of receipt of the RFE response. If cases are beyond the processing time, customers may inquire on the status of the case via email at USCIS.ImmigrantInvestorProgram@dhs.gov.
USCIS strives to work cases using the first-in-first-out method, and does not have specific expedite procedures to give preferential treatment to projects that include exemplars. At this time, the agency does not plan to further stratify EB-5 workflows to give priority to cases that include exemplars.
The agency reminded participants that it strictly adheres to USCIS’ National Expedite Criteria in order to determine if a case should be worked ahead of others cases. Additionally, assigning a regional center to a specific ISO would not foster efficient processing of cases because personnel have various responsibilities and are sometimes reassigned to other units or retire. The result would be a convoluted process that would complicate workflows and not support the agency’s commitment to process cases using the first-in-first-out method. If we identify fact patterns or common issues amongst cases, these are grouped together for processing to ensure consistency.
USCIS reminded stakeholders that Immigration Services Officers (ISOs) and a supervisor were added to the EB-5 team at the California Service Center. Training efforts have included formal classroom training, hands-on EB-5 case review and discussions, and a review of Forms I-924 and I-924A. Experienced EB-5 Immigration Service Officers are serving as mentors in this training initiative. It should be noted that USCIS does not express aggregate EB-5 adjudicators in terms of the number of people involved because service centers have a lot of priorities and while we have a certain segment of staff that are predominantly focused on EB-5 adjudicators are also called upon to perform other duties. However, the EB-5 team has tripled with the addition of ISOs.
Data Challenges and Individual Petition Statistics for Regional Centers
USCIS has received data requests from external EB-5 stakeholders for case filing volumes and final case actions in Form I-526 and Form I-829 petitions that are affiliated with a specific designated regional center. Since the Agency has determined that providing this data does not conflict with the Privacy Act, USCIS will post this data to its website on a quarterly basis and provide the same at the end of each fiscal year, starting with petitions filed during fiscal year 2011 (October 1, 2010 through September 30, 2012).
The agency stated that one of the challenges in collecting the requested information has been that forms I-526 and I-829 do not collect information about the affiliated regional center. USCIS began capturing the affiliation between a regional center and the individual petitions about one year ago; however, the data is only visible to the Agency when the case is assigned to an Immigration Services Officer (ISO), not while it is in the queue. As such, when a petition is filed, the Agency does not readily see the regional center affiliation. To address this blind spot, USCIS has devoted resources to capture regional center affiliation information. Once the data is validated, it will be posted to the agency’s website. By June 2011, USCIS plans to post data for the first quarter in fiscal year 2011, which includes October 2010 through December 2010.
Another challenge is the agency’s inability to capture approval and denial rates for non-regional center affiliated cases also referred to as “stand alone” I-526 cases. For example, in fiscal year 2010, 11% of I-526 petitions and 17% of I-829 petitions were denied. At present USCIS does not currently capture data in a manner that would allow for the denial rates of RC-affiliated and non-RC-affiliated to be distinguished from one another.
Revisions to Form I-526 and Form I-829
In fiscal year 2011, USCIS plans to revise Form I-829 and I-526 to facilitate the capture of regional center affiliation. Stakeholders are encouraged to think about the changes they would like to see made to these forms and to comment on proposed draft forms when they are posted on www.regulations.gov per the Office of Management and Budget procedures.
Form I-924 & Form I-924A
On November 23, 2010, USCIS implemented Form I-924, Application for Regional Center under the Immigrant Investor Pilot Program, for an entity to request designation as a Regional Center. On that date, USCIS also implemented Form I-924A, Supplement to Form I-924 (Form I-924A), to help customers with yearly regional center reporting requirement. These forms are posted on the agency’s website at www.uscis.gov with corresponding instructions.
In all FY 2010, USCIS received 110 initial regional center proposals and 42 amended regional center proposals. In the week prior to the implementation of the new forms, USCIS received 100 regional center initial and amended proposals, which equates to 65% of all regional center filings in FY 2010. USCIS advised participants that the adjudication of this high volume of case filings will have an impact on processing times for Form I-924, Application for Regional Center under the Immigrant Investor Pilot Program.
USCIS reminded participants that reporting fiscal year 2010 data is not required. Therefore, there is no need for a regional center to file Form I-924A until after the close of fiscal year 2011. If a customer receives a USCIS request for fiscal year 2010 data, they should forward the request to the EB-5 team at USCIS.ImmigrantInvestorProgram@dhs.gov for further review. The agency encouraged regional centers to thoroughly review Form I-924A and become familiar with the data that will be required. Stakeholders will be able to collect fiscal year 2011 data as the year transpires, thereby minimizing the time to prepare Form I-924A at the end of fiscal year 2011.
EB-5 Inquiries and EB-5 Mailbox Auto-Reply
USCIS reminded participants that the “EB-5 Inquiries” webpage found at www.uscis.gov provides a myriad of information and outlines the type of inquiries that can be posed to the EB-5 team at USCIS.ImmigrantInvestorProgram@dhs.gov. An email to this account will provide an automatic email reply that provides customers with links to various USCIS EB-5 pages and other EB-5 public information sources, including links to Forms I-924 and I-924A.
EB-5 Frequently Asked Questions (FAQs)
USCIS has been actively developing EB-5 Frequently Asked Questions (FAQs) on a variety of related topics. By the middle of January 2011, USCIS plans to publish EB-5 FAQs, and will update these on an ongoing basis. In reviewing stakeholder input provided prior to EB-5 quarterly engagements, the agency found that some questions are better suited to be addressed in FAQ format rather than as a talking point in a quarterly EB-5 engagement.
To get a certification on a specific project, a designated regional center may file an amendment to the regional center for an exemplar project. A regional center seeking regional center designation may also file an exemplar with the initial Form I-924, Application for Regional Center under the Immigrant Investor Pilot Program.