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Current Experiences January and February 2013
Regional Center Designations.
As of Feb. 15, 2013, the USCIS has published the list of 261 designated Regional Centers. This represents an approximate increase of 6 % since the beginning of 2012.
USCIS Adjudication times for processing cases?
As discussed by the writer with attorneys and Regional Centers, the following are the case processing times currently being experienced( contrary to USCIS published information):
I-526 – Direct hire + 6 months I-526 – Regional Centers + 12 months I-829 – Removal of Condition + 6 months I-924 – New Regional Center Applications + 1 year I-924 – Regional Center Amendment Applications + 1 year
Policy Memorandum dated Feb. 14, 2013
The long awaited and updated draft Policy Memorandum has at last been disseminated. The subject is EB-5 Adjudications Policy and it covers 25 pages. Some of the highlights are:
• A reiteration of“ The Preponderance of Evidence Standard.”
• USCIS will continue to ensure program integrity. Cases affecting fraud, national security and public safety are being referred to the appropriate agencies.
• USCIS opines on the definitions of Capital and Invest and Amount of Capital That Must be Invested, as read in conjunction with the case law.
• Targeted Employment Area( TEA) and State’ s Designation of TEAs
• New Commercial Enterprises are discussed, including purchasing, restructuring or expanding a new business; pooled investments; the requirement that the investor be engaged in the new enterprise; and the location of the enterprise.
• Job Creation for Full-time positions, Troubled Businesses and those located within and outside the boundaries of a Regional Center.
• Pointers are given on the content of Forms I-526, I-924 and I-829. There is a“ Deference Policy” where, absent fraud, USCIS will not readjudicate issues previously approved as part of a prior case filing.
• Material Change by deviating from the business plan filed with the I-526 may result in a denial of the I-829 to remove the conditional status. However, USCIS acknowledges“ the fluidity of the business world” and now allows for changes to the business plan. A Readjudication of relevant parts of the case will be done at the I-829 stage.
Comments can be made to USCIS about the content of the draft before April 1, 2013.
What does the Future Hold? Will there be a permanent EB-5 Regional Center Program?
The Regional Center Program is due to sunset on Sept. 30, 2015. Congress has historically left the approval of the extension of the Regional Center Program to the last days before the sunsetting date. Will that be the case once again? Or will Congress pass the Comprehensive Immigration Reform law and incorporate the Regional Center Program, making it a permanent program? This is the case with direct hire EB-5 cases. Finally, will there be a standalone bill to fix the actual and perceived problems with the program( as well as making it a permanent program)?
USCIS will strictly apply all the rules and will collaborate with other agencies
For the past year, USCIS has applied the regulations in the narrowest context without regard to the overall benefit that the projects may bring to the U. S. job market and economy. The Draft Memorandum of Adjudication Policies of February 2013 appears to have relaxed the rigidity of the Service to take market realities into account.
We all look forward to approved cases and much faster adjudications in 2013!
Securities and Exchange Commission files law suit against a Regional Center, an individual and a Limited Liability Company.
One of the agencies with which the USCIS collaborates is the Securities and Exchange Commission. A direct result of this policy appears to have resulted in a civil action being filed in the Northern District of Illinois, Eastern Division by the SEC against an individual and two companies, one being Intercontinental Regional Center Trust of Chicago. The allegations include defrauding foreign investors by selling $ 145 million in securities and collecting $ 11 million in administrative fees from about 250 individuals. The law suit was filed on Feb. 6, 2013.
USCIS, EB-5 Unit to move to Washington, D. C.
The EB-5 Division of USCIS( currently based in Laguna Niguel, Calif.) is slated to be relocated to USCIS Headquarters in Washington, D. C. This will in all likelihood cause an additional delay with the adjudications.
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