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USCIS Publishes NEW EB-5 Policy Memorandum

July 1, 2013 / usifredo

On May 30, 2013, USCIS published a new EB-5 Policy Memorandum that implemented policies from prior drafts to implement worthwhile changes. The May 30 memorandum was created to build upon prior policy guidance for adjudicating EB-5 applications and petitions.

The most important change that will occur, should these points be implemented, is that regional centers will no longer require approval for a proposed enterprise’s project geographic area, industry (NAICS code), business method (loan, equity or combination) or economic methodology before investors in the enterprise can file Forms I-526 to show EB-5 eligibility. The I-526 petitions will be required to qualify in each respect. This means existing regional centers will be able to sponsor any project that meets USCIS requirements without prior USCIS approval. By skipping the previously required approval methods, the developer, with USCIS compliant business plan and offering documents, can immediately subscribe investors who can in turn immediately file Forms I-526 to start their immigration process. This way, developers seeking EB-5 capital will be able to tap into it much more quickly than before using existing regional centers.

The second major change allows a way out for investors whose investment enterprise projects have materially changed since they immigrated as conditional residents. The change would allow EB-5 immigrants to gain I-829 approval if they show that the funds were put to job creating use to meet the ultimate requirements.

Other changes are as follows (provided by IIUSA):

Requirements explained: The memo explains the purposes of EB-5, and how the main requirements relate to those purposes, and it emphasizes numerous times that the standard is the preponderance of the evidence: is it shown to be more likely than not.

No distributions in kind to investors from NCE: if the NCE promises to distribute a particular asset such as a piece of real estate (condo, home, etc.) or personal property.

Degree of Risk: “The law does not specify what the degree of risk must be; the entire amount of capital need only be at risk to some degree.” [This seems to support low risk investments, even investments in enterprises making loans backed by collateral or third party promises.]

Foreign escrow accounts: at I-526 investor must show that the exchange rate and transfer fees will not reduce the amount delivered to the project below the minimum, and at I-829 that the minimum was in fact delivered.

Portfolio investments: Allowed, as long as investment is in one enterprise, and for direct EB-5 it goes from there into 100% subsidiaries (more flexible for RC-affiliation, not clear any limits on how extended the arrangements could be). Jobs can be added among the projects for allocation to EB-5 investors (by regulation, per any agreement they have). [No clarity on extent to which each project must be planned for proportionate job creation.]

TEA “principally doing business”: Most significantly related to the job creation. (No discussion of projects spanning more than one TEA).

Examples of restructuring (for meeting “new” with business established before Nov. 1990): Restaurant converted to nightclub, or crop production into livestock farm.

Standards for RC geography: Conceivably USCIS management is urging a more generous approach when it states, “The question is a fact-specific one and the law does not require any particular form of evidentiary showing, such as a county-by-county analysis.” But then it acknowledges that the area normally “is contributing significantly to the supply chain, as well as the labor pool, of the proposed projects.” That seems to support the current narrow approach.

Exemplar, actual, and hypothetical projects for I-924: Exemplar gets review of organizational and transactional documents, as well as Matter of Ho compliance; actual gets review of Matter of Ho  compliance;  hypothetical  ostensibly  gets  review  of  job  creation  ratio  (which  still  can implicate “verifiable detail” for assumptions underlying economic analysis).

Buying land: EB-5 funds can be used for this, even though economic analysis cannot base job creation predictions on such expenditure that is not inherently job-creating.

Bridge financing: Bridge loan or equity can be replaced with EB-5 funds, best if planned before bridge is received but possible if other bridge replacement fell through.

Short-term jobs: recognition of direct jobs that last for at least two years does not mention “and through the filing of the I-829″ as mentioned in the December 11, 2009 memo. [So perhaps that extra requirement, not usually mentioned in RFEs either, is defunct]

Indirect jobs outside RC area: They can be counted, but based on “reasonable methodologies.” [Economists may emphasize that setting the model to focus, for instance, on an MSA– as USCIS increasingly pushes them to do– does not foreclose assessing indirect job creation outside that area.]

How to apply Matter of Ho: A business plan need not contain all the detailed elements of Matter of Ho; instead, the totality of circumstances should be reviewed, but the more elements shown, the more likely it qualifies.

Double-counting: Different investors (i.e., through different projects counting direct or indirect effects) cannot claim credit for the same jobs.

“Reasonable time” for job showing at I-829: One year more, unless extreme circumstances such as force majeure.

RC Amendments: not required before I-526 filings for changes to industries, geography, business plans (structure), or economic methodologies. [But possible train wreck in I-526s if USCIS finds the change not appropriate.  Particularly beware geographic expansion not closely contiguous to approved area.]

Deference: Afforded to I-924 exemplar or I-526 approvals for same project. Ostensibly this means once the first I-526 in a project is approved, the rest should be OK as to project (vs. source of funds), and I-829 gets deference to what was approved in I-526 (consistent with Chang v. INS). Exceptions for material change, misrepresentation, or objective mistake of law or fact (ostensibly not just judgment calls).

Material change defined: Changed circumstances that would have a natural tendency to influence or are predictably capable of affecting the decision, citing Kungys v. United States, 485 U.S. 759, 770-72 (1988). [This case often is cited for a fairly broad approach to what would constitute a “material” misrepresentation giving rise to an alien’s permanent inadmissibility, and it could be a problematically expansive standard in EB-5]

Effects of material change: Pending I-526 through admission as CPR: file new I-526, with age- out of children who have turned 21 and with loss of “priority date” for visa number. Between admission as CPR and end of conditional residence (still not clear if I-829 due date or I-829 approval), show that changes meet investment and job creation requirements, possibly without deference to prior decision (maybe some deference if industries and analysis are the same).

Liquidation of enterprise before end of CPR: Liquidation and reallocation to another job-creating enterprise “may not comply” with USCIS’ “sustain the investment” requirement. [Not clear if or how it “may comply.” Ostensibly, liquidation without reinvestment, such as holding proceeds in the investment enterprise or distributing to EB-5 investors, fails to comply.]

Industry limitations on RCs eliminated: While NAICS codes are useful for assessing economic analysis  and  “verifiable  detail,”  RCs  are  not  limited  to  NAICS  codes  for  job  creation  in previously approved projects.


如果这些调整被执行的话,最明显的变化是放宽了对区域中心的要求。区域中心在投资人递交I-526申请前区域中心不再需要项目区域范围、行业(NAICS代码)、经营方式(贷款、股权或组合)或经济分析方法申请。 I-526申请要求在每个方面均符合要求。也就是说,已有的区域中心可以参与符合移民局的要求的任何项目,而不需要预批。跳过之前需要的预批,符合移民局要求的开发商、商业计划书、发售文件可以吸募投资人,而投资人也可马上准备I-526备件开始移民申请流程。这样的话,较之以前,项目开发商可以更快募集和使用EB-5资金。

第二个重大变化是对于已经获得条件性绿卡的投资人,对于其所投资的项目如有做了材料变更(materially change),在这种情况下允许以一种方式退出。这个调整意味着只要证明资金用于创造就业并符合最终要求,就允许EB-5投资人获得I-829条件解除获得永久绿卡。




风险程度:” 法律没有明细具体是哪种程度的风险;所需的全部资金仅是在某些程度上处于风险状态。”(这个似乎是支持低风险投资,甚至借贷方式投资也有抵押品或第三方承诺支持)





区域中心的地理范围标准:移民局正要求更宽泛的对区域中心的界定“这个问题本应是根据具体情况可以落实的, 但法律部不要求任何形式的证明(如各县的分析)”但随后又承认范围基本是“指所推项目所在地对生产供应、劳动力等有明显贡献的区域”。从这点看似乎是支持目前狭隘的计算方法。

I-924定义假设、实际项目和示例项目:示例项目需要合规事务文档;如果项目符合“Matter of Ho ”商业计划的要求,就是实际的项目。反之,则是“假设“;此外,实际项目、假设项目是否合符EB-5条件需要更多细节。假设表面审核就业创造的比率(实际仍需要“可验证细节”对经济分析做假设)





如何申请“Matter of Ho”:商业计划书不需要Matter of Ho的所有细节内容;但整体情况应予以查看,提供相关细节信息越多,则越有可能符合要求。




顺批:对同一项目的I-924样本材料和I-526的申请适用。这个意味着一旦项目投资人的I-526获批,则不再重新审查项目材料,其余部分也应该没问题(如资金来源);对于I-829,移民局如果发现其经营计划和I-526批准的经营计划无二,也将“顺批”。但如果出现材料变更(material change)、失实陈述、法律或事实缺失错误除外。

材料变更定义:可能影响或可预见影响决定的情况,引用Kungys v. United States, 485 U.S. 759, 770-72 (1988)(这点经常引用,对于什么情况或构成重大失实陈述而致使外籍投资人永久不受理,这可能是有问题的扩展标准)




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