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5 Things We Learned from the September 2019 EB-5 Immigrant Investor Program
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/391673-article-comparing-e-2-eb-5-investor-visas-by-joseph-barnett-and-bernard-wolfsdorf#bio”>
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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 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.
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<b>Bernard P. Wolfsdorf</b> is the past National President of the 15,000-member American Immigration Lawyers Association (AILA) and is Managing Partner of the top-rated Wolfsdorf Rosenthal LLP immigration law firm. The firm is known worldwide for providing exceptional quality legal services. With over 80 professionals including 18 lawyers, and offices in Los Angeles, New York and Shanghai, the firm provides high-quality, excellent-value global immigration services. Mr. Wolfsdorf specializes in a broad range of immigration areas, including business and EB-5 investment visas and he also handles the full range of global immigration matters.
Best Lawyer’s US News and World Report ranked him as its 2018 “Lawyer of the Year” for Los Angeles. In 2017, Mr. Wolfsdorf was listed as Who’s Who Legal’ s “Leading and Most Highly Recommended Immigration Lawyer in the United States” for the 7th year. Mr. Wolfsdorf secured the top spot after earning the most votes from hundreds of highly-rated immigration lawyers around the world. WWL calls Mr. Wolfsdorf a “leading expert in EB-5” who has “strengths in many practice areas.”
He has been described by other highly reputable sources, such as Chambers and Partners (USA), as an “excellent” attorney.” The firm is one of only 3 in California awarded Band 1 recognition, and the only one in Southern California with the honor.
Mr. Wolfsdorf has been recognized as “an undoubted leader” and “one of the prestigious names in the field” who “knows his stuff back to front”. He is listed in Southern California Super Lawyers, while Chambers Global: The World’s Leading Lawyers for Business has rated him in its top tier. EB5 Investors Magazine has rated Mr. Wolfsdorf in its “Top 25 Immigration Lawyers” for the past 4 years.
Mr. Wolfsdorf has been certified by the California State Bar as an Immigration and Nationality law specialist for over 25 years. Chambers USA: America’s Leading Lawyers for Business described him as “one of the hardest-working immigration lawyers around,” adding that “he continues to lead from the front with astute strategic and tactical decisions”.
Mr. Wolfsdorf is a long-standing member of the Alliance of Business Immigration Lawyers (ABIL) and ABIL Global, which include the Managing Partners of the top immigration firms worldwide. He has authored numerous publications on immigration law and frequently lectures on visa matters. He is renowned for his broad knowledge of immigration law and his ability to successfully navigate complex immigration matters. Over the years, Mr. Wolfsdorf has had a major impact on the practice of immigration law. In recognition of his contribution, the American Immigration Lawyers Association honored him with its Service Excellence Award for his distinguished work.
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