USCIS Publishes NEW EB-5 Policy Memorandum

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.