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Feb 21, 2017

The Next EB-5 Stakeholder Meeting is on March 3. Here are the questions we would like to be answered…

Matthew Galati

On March 3, 2017, USCIS will have its first EB-5 Immigrant Investor Program Stakeholder engagement of the year. Of course, this engagement will also be the first of the Trump Administration as well as the first since the proposal of major regulatory reform in January.

USCIS solicited non-case specific questions to be addressed earlier this month. Here are the questions we submitted and look forward to discussing:

1.   On January 30, 2017, President Trump issued the “Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs,” requiring that for every new regulation issued, two be stricken. The Notice of Proposed Rulemaking, “EB-5 Immigrant Investor Program Modernization”, remains pending.Is the Executive Order applicable to the EB-5 Immigrant Investor Program Modernization regulation?

a.   Is the Executive Order applicable to the EB-5 Immigrant Investor Program Modernization regulation?

b.   If so, which regulation(s) will be stricken should it be enacted?

2.   On Inauguration Day, President Trump issued a freeze on pending regulations. With respect to the EB-5 Immigrant Investor Program Modernization regulation, has the current administration taken any action, given that it was promulgated under the previous administration? Will review of public comments move forward after April 11?

3.   According to the Average Processing Times for Immigrant Investor Program Office, as of November 30, 2016, Form I-829 is taking over 24 months to adjudicate. This is in direct violation of INA § 216A(c)(3)(A)(ii). In promulgating the current I-829 regulations, Legacy INS itself stated:

Section 216A(c)(3) of the Act provides that the Attorney General make a determination on a petition to remove conditions within 90 days of the date the petition is filed or within 90 days of the interview, whichever is later. Accordingly, 8 CFR 216.6(b)(1) of the proposed regulation states that the Service Center director must either waive the interview requirement and adjudicate the petition or arrange for an interview within 90 days of the date the alien entrepreneur filed the petition.”

USCIS’ Form I-829 processing times are in violation of statutory and regulatory mandates and the situation appears to be worsening over the past few months. Please explain why processing times are so long; specifically, why adjudicators are not instructed to complete adjudications within the Congressionally mandated timeframes.

4.   USCIS recently updated Volume 6 Part G of its Policy Manual and solicited public comment to its provisions. What is the status of the review of those comments, and what changes, if any, will be made?

5.   When can stakeholders receive finalized guidance regarding the Draft PM-602-0121, Guidance on the Job Creation Requirement and Sustainment of the Investment for EB-5 Adjudication of Form I-526 and Form I-829? As you are aware, the comment period closed on September 8, 2015.

We also asked a sixth question regarding the so-called Renaud Memo which purported to freeze USCIS’ adjudications of petitions and applications filed by nationals of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya. Given however that the underlying executive order was stayed by the federal courts and the Renaud Memo was walked back, our question may have already been answered.

The stakeholder meeting will take place in Washington D.C. from 1 to 2:30 p.m. Eastern U.S. Time.  To register, please see USCIS’ formal invitation

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