EB5 Investors Magazine "Top 25 issue" Volume 9 Issue 1 - Page 89

build a new hospital in a rural or economically distressed area that is in severe need of healthcare , then that may be compelling to both USCIS and investors . On the other hand , if the expedite request is based on the project teetering on the verge of failure and bankruptcy because it has no other sources of funding , not so much .
" For projects , it is theoretically possible to expedite based on severe financial loss because funds are tied up in escrow , preventing a project from moving forward ."
For investors , while most families would obviously benefit from an approved expedite request , it may not always be the right option depending on one ’ s personal circumstances . One particular situation is if an investor ’ s priority date isn ’ t current and they have children as dependents . A “ successful ” expedite request could potentially be disastrous because if the I-526 petition is approved and a visa isn ’ t available , any dependent children may potentially age out .
Note that once the expedite request is granted , both the project and investor should have fulfilled or be prepared to fulfill all underlying requirements for EB-5 eligibility . Otherwise , poor planning or lack of awareness may inadvertently expedite a RFE or even a denial . Projects should already be compliant and be otherwise shovelready ( similar to an I-924 exemplar ) to prevent any RFEs for project-related issues . Evidence of financing , permitting , and etc . to show that the project is otherwise ready and able to proceed is critical . For investors , evidence of full EB-5 investment ( including documents needed to prove both source and transfer of funds ) should have already been submitted .
While a successful request for expedited processing is generally beneficial , also consider that there are alternative options available that may be beneficial to EB-5 stakeholders . For example , for investors who hope to speed up their immigration process , note that the RIA provides alternative , faster processing options . In addition to an expedite request , projects can still confer faster processing benefits if they qualify for one of the specific set-aside visa categories ( such as rural ).
Of course , post I-526 filing , investors frustrated by continued delays need not be consumed with regret about missing out on an expedite request . A properly prepared writ of mandamus would still likely be the most direct and effective option to compel USCIS to adjudicate petitions that have been stuck in purgatory . This includes compelling review of the underlying expedite request as well . As always , creativity and practicality will always need to be balanced so it ’ s best to speak with experienced counsel to help guide one through the menu of available options .
Recognized nationally as an expert in EB-5 law , Nima Korpivaara has
advised a multitude of developers , project principals and regional centers on EB-5
program compliance . He primarily works within the immigration practice at KLD LLP , counseling corporate clients and individual EB-5 investors on the EB-5 program ’ s USCIS requirements and processes .
Phuong Le is a founding member and partner with KLD LLP . He has over 15 years of experience and helps lead a global EB-5 practice group . He draws upon an extensive background advising parties on all sides of EB-5 transactions , including regional centers and direct EB-5 investments , project developers , agents , and investors . His clients span the globe and he has advised on over 5,000 investor petitions and over $ 2.5 billion in EB-5 financing for projects across the U . S ., including commercial real estate , multifamily , charter schools , hotels , and publicly-traded franchises . He frequently travels and shares his knowledge regarding complex EB-5 matters as a lecturer , author , and EB-5 expert witness for other firms and the EB-5 industry .
Niral Patel , a partner at KLD ’ s New York office , has experience in many aspects of corporate and investment immigration law . For EB-5 , Patel oversees the lifecycle of EB-5 : corporate structuring , preparing I-956F applications , preparing I-829 templates , and advising on issues related to redeployment . For non-EB-5 , Patel consults companies in maintaining compliance for-E-2 and L-1A programs . He represents both domestic and global corporations with respect to preparing employment-based petitions and adjustment of status applications for their employees in the U . S . Lastly , he also has federal litigation experience . Patel has successfully represented investors in federal court in mandamus actions for pending immigration cases , including EB-5 .
Sources :
1 In this article we discuss I-924 exemplars but the same arguments would apply to I-956F filings .
2 For more information on specific requirements : https :// www . uscis . gov / forms / filing-guidance / how-to-make-an-expedite-request