On May 30, 2013, USCIS published the final memorandum on EB-5 adjudication policy. There were many important revelations contained in the memo. USCIS’s adoption of a policy of deference for previous decisions is an important improvement for both the rule of law and the general efficiency of administrating the program. The seemingly vastly expanded abilities of regional centers was a bit surprising. It will be interesting to see how that plays out in practice.
Perhaps among the most significant changes, for both regional centers and the sponsors of direct EB-5 offerings, is the apparent de-coupling of the business plan filed at the I-526 stage and the jobs created for the purposes of adjudication at the I-829 stage. The memo cites the relevant history in this area, “Historically, USCIS has required a direct connection between the business plan the investor provides with the Form I-526 and the subsequent removal of conditions. USCIS would not approve a Form I-829 petition if the investor had made an investment and created jobs in the United States if the jobs were not created according to the plan presented in the Form I-526.”
What follows next in the memo is a surprising reversal of their current policy, “USCIS also notes that the statute does not require that direct connection.” The memo does note, just prior to that statement, that the alternative conclusion, that a direct connection is required, “is a permissible construction of the governing statute.” One would hope it would be permissible as it was in fact USCIS’s policy until the publication of the memo. Leaving that aside, this change is a strong improvement, as it gets the program right back to where it started – with the jobs.
It would seem, through this change and others in the memo, that USCIS is returning the program to its roots with a passion. This section of the memo concludes powerfully, “In order to provide flexibility to meet the realities of the business world, USCIS will permit an alien who has been admitted to the United States on a conditional basis to remove those conditions when circumstances have changed. An individual investor can, at the prescribed time, proceed with his or her Form I-829 petition to remove conditions and present documentary evidence demonstrating that, notwithstanding the business plan contained in the Form I-526, the requirements for the removal of conditions have been satisfied. Pursuant to this policy, USCIS will no longer deny petitions to remove conditions solely based on failure to adhere to the plan contained in the Form I-526 or to pursue business opportunities within an industry category previously approved for the regional center.”
The improvement is premised on a simple question, ‘Who cares about the business plan, or for a regional center, the previously approved business category, if the jobs are created?” At that point the policy is fulfilled. Does it matter if the filing at the I-526 stage called for a dry-cleaner, when in fact a restaurant was built? Of course, there are potential administrative and practical reasons why such radical departures from the business plan should not be endorsed, but it is heartening to see an improved, if not renewed, focus on what really counts.
From this perspective, the new policy of deference, may cause some consternation over time in the Regional Center context. The logic of this change for direct EB-5 investments is compelling. If the ten jobs are in fact created, the policy work is done, so if the implemented business deviates from a credible plan filed at the I-526 stage, there is no harm. USCIS should not want to create a disincentive to the business sponsors from working hard to create jobs, if the business reality requires changes, regardless of what was originally filed. So long as the plan filed at the I-526 stage was credible and filed with the good faith belief that the plan would be followed, there should be no concern whatsoever with removing the conditions to permanent residency in the face of a job creating change to the business.
The same logic does not necessarily hold so well in the Regional Center context. The policy of deference can have the unintended consequence of perpetuating a business that in fact is not creating the required jobs. For instance, imagine a Regional Center sponsored project where the earliest I-526 plan and econometric methodologies are approved. That would seemingly give a free pass to all those investors who came later, but what if many assumptions underlying the methodologies do not hold over time. Then, under deference, investors’ petitions would be approved even though the project may not be likely to create the projected jobs, thus failing the EB-5 program’s policy goal.
Earlier in the memo, there is some language suggesting a material change would free USCIS from affording deference to a given petition based on a prior determination, however, the threshold seemed rather high. In addition, the memo suggests that in the context of a de-coupled petition, there would be a specific focus on the actual job creation, “Therefore, if the immigrant investor is seeking to have his or her conditions removed based on a business plan not consistent with the approved Form I-526, the alien investor may need to provide evidence to demonstrate the element of job creation or any other requirement for removal of conditions that is called into question by the changed plan.”
In sum, these changes in policy bode well for the EB-5 program. A heightened focus on administrative efficiency and a heightened focus on the fulfillment of the EB-5 program’s policy mandate will surely guide USCIS to continue to make changes for the better of the program and our nation.
Matthew Gordon – Managing Director