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5 Things We Learned from the September 2019 EB-5 Immigrant Investor Program
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Joseph Barnett and Bernard Wolfsdorf
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<p><span style=”color: #000000;”>We tuned into the United States Citizenship and Immigration Services’ (USCIS) Public Listening Session on the EB-5 Immigrant Investor Program on September 9, 2019, and although there was not much back and forth engagement with Sarah Kendall, Chief of the Immigrant Investor Program Office (IPO), valuable information was shared that sheds light on some unanswered questions on EB-5. Here are five things to know:</span></p>
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<li><span style=”color: #000000;”><strong><u>Processing Delays for Regional Center Pending I-526s</u>.</strong> It appears that the government shutdowns from December 2018 to January 2019 has had lingering effects, as IPO halted adjudications on all regional center I-526 petitions and I-924 applications and focused on adjudicating “direct” I-526 petitions and I-829 petitions, or IPO staff were transferred on “temporary assignment to other [USCIS] priorities.” Additionally, it seems that it has taken so long for IPO to transfer adjudicators back to regional center I-526 petitions because of additional training for I-526 petition adjudicators and economists for “quality assurance”. </span></li>
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<li><span style=”color: #000000;”><strong><u>I-829 Filings by Derivative Beneficiaries</u>.</strong> The</span> <a href=”https://www.federalregister.gov/documents/2019/07/24/2019-15000/eb-5-immigrant-investor-program-modernization”><span style=”color: #0000ff;”>new regulations going into effect on November 21, 2019</span></a> <span style=”color: #000000;”>clarify the filing process for derivatives who are filing a Form I-829 petition separately from the immigrant investor. Kendall that, except in the case of a deceased investor, where the principal petitioner does not include his or her qualifying derivative beneficiaries in the I-829 petition, those beneficiaries seeking removal of conditions cannot use one I-829 petition. Instead, each dependent must file his/her own I-829 petition (with its own $3,750 filing fee).</span></li>
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<li><span style=”color: #000000;”><strong><u>Clarification on Priority Date Retention</u>.</strong> The regulations will also allow certain EB-5 investors with approved I-526 petitions who have not yet obtained conditional lawful permanent resident status with the ability to retain that I-526’s priority date for a subsequently filed I-526 after November 21, 2019, in the event the sponsoring Regional Center was terminated. Kendall made a small comment (later confirmed by the American Immigration Lawyers Association), that the investor may only need to invest $400,000 (if still qualifying for TEA purposes) on top of the existing $500,000 to be eligible under the new rule. Another way priority date retention may be of benefit is for EB-5 investors in delayed projects whose funds remain with the new commercial enterprise. </span></li>
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<li><span style=”color: #000000;”><strong><u>TEA Determinations</u>.</strong> Kendall noted that “there is no change in the timing of the TEA eligibility determination as it relates to the appropriate date to determine whether the investor qualifies for the lower amount,” alluding to the fact that USCIS reviews TEA determinations of the unemployment rate and assess the method or methods by which the state authority obtained the unemployment statistics, as indicated in the</span> <span style=”color: #0000ff;”><a style=”color: #0000ff;” href=”https://www.uscis.gov/policy-manual/volume-6-part-g-chapter-2″>EB-5 Policy Manual</a></span><span style=”color: #000000;”>.</span></li>
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<li><span style=”color: #000000;”><strong><u>Creation of EB-5 Policy Guidance</u>.</strong> IPO appears to have moved on from “stakeholder engagement” towards “listening sessions,” most likely in an attempt to ensure that nobody misspeaks on the phone and creates confusion among EB-5 stakeholders. Kendall notes that the USCIS Policy Manual and forms will be updated based on the new rules. A copy of her remarks can be found here: </span><span style=”color: #0000ff;”> <a style=”color: #0000ff;” href=”https://www.uscis.gov/sites/default/files/files/nativedocuments/EB-5_Modernization_Stakeholder_Call.pdf”>https://www.uscis.gov/sites/default/files/files/nativedocuments/EB-5_Modernization_Stakeholder_Call.pdf</a> </span></li>
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<p>This post originally appeared on <a href=”https://wolfsdorf.com/blog/2019/09/16/5-things-we-learned-from-the-september-2019-eb-5-immigrant-investor-program-listening-session/” target=”_blank”>Wolfsdorf Rosenthal</a>. Reprinted with permission.</p>
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About The Author<br/>
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<b>Joseph “Joey” Barnett</b> is a partner at Wolfsdorf Rosenthal LLP and a member of the firm’s EB-5 and business immigration practices. He is licensed as an attorney in Illinois and Wisconsin and practices exclusively in immigration and nationality law.
Mr. Barnett represents immigrant investors seeking permanent residency in the United States through USCIS-designated Regional Centers and investment in their own businesses. Mr. Barnett also assists developers with the establishment of complex corporate and financing structures for EB-5 capital. He works with economists, securities lawyers, business plan writers, and other professionals to prepare Regional Center applications, amendments, and project “exemplar” approvals.
As the lead member on the firm’s Chinese EB-1 team, Mr. Barnett has successfully represented Chinese executives, researchers, professors, medical professionals, engineers, musicians and artists, media and public relations professionals, and others with extraordinary ability in the sciences, arts, education, business, or athletics seek permanent residency in the U.S. Mr. Barnett also assists executives and managers in multinational companies to obtain permanent residency in the U.S.
Mr. Barnett is also responsible for a variety of other immigration matters, including temporary work visas, employment-based petitions, administrative appeals, and federal writ of mandamus lawsuits.
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<b>Bernard P. Wolfsdorf </b> is an immigration attorney and a managing partner at Wolfsdorf Rosenthal LLP (WR Global Immigration) an immigration law firm with offices in Los Angeles, New York, Oakland, Santa Monica, San Francisco and Shanghai. Mr. Wolfsdorf has been designated as a Certified Specialist in Immigration and Nationality Law by the State Bar of California for over 25 years.
WR Global Immigration is known worldwide for its excellence in providing value and top-quality global immigration representation.
Chambers USA – California rated only three firms as Tier 1, including WR Global Immigration. He has been consistently rated as “AV Preeminent” by Martindale-Hubbell and was selected as the “2018 Lawyer of the Year for Los Angeles” by U.S. News & World Report/Best Lawyers in America. Mr. Wolfsdorf serves on the American Immigration Lawyers Association’s EB-5 committee and he is a past national President of AILA where he was awarded its Service Excellence Award for his voluntary contributions. EB5 Investors Magazine has named him in its Top 25 immigration lawyers for the past 5 years.
He is a frequent speaker and author on EB-5 topics. The firm is known for providing innovative solutions to complex issues for its clients and handles a broad range of global mobility cases. WR Global has developed the most advanced Immigrant Management System available WRpaid that has transformed the practice of immigration law. Chambers USA describes him as “one of the hardest-working immigration lawyers around.
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