From the Desk of an
EB-5 Lawyer
by David Hirson
Dear EB5 Investors Magazine Readers:
In each edition of the eb5investors
Magazine I will review many of
the issues that have taken place
since my last article. Here is
my review of Q1 and Q2 2013.
USCIS service IS improving!
The first two quarters of 2013 started slowly, but by
July it became evident that cases were being adjudicated more
expeditiously. Though there were RFEs, NOIDs, and requests
for clarification, there were also some approvals. In fact, our office received four new regional center designations in one week!
However, the USCIS has issued multiple RFEs and NOIDs
where the basis is “visitor spending” and “tenant occupancy.”
The Big Event: USCIS EB-5 Adjudications
Memo Dated May 30, 2013
On May 30, 2013 USCIS issued a Policy Memorandum,
“EB-5 Adjudications Policy,” PM-602-0083. It contained
many positive instructions to the adjudicators, including
many helpful business-friendly clarifications. Omissions to the
policy memo will be addressed by stakeholders in the future.
The following are some of the main topics covered in USCIS’s
direction to its adjudicators.
• Clearer definitions of key terms for officers
See the memo for several pages of definitions
• Reconfirmation of Burden of Proof
and Standard of Evidence
The memo confirms that the burden of proof is on
the applicant/petitioner. The standard of proof is the
“Preponderance of the Evidence” level, requiring that the
evidence show that something is “more likely so than not
so.” This standard of proof is less than the clear-and-convincing and beyond-a-reasonable-doubt standards.
Adjudication does not need removal of all doubt. All
that is required is the submission of relevant, probative,
and credible evidence that leads to the conclusion that
the claim is either more likely than not or probably true.
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• Deference Policy
A positive prior evaluation by USCIS will generally be
given deference at a subsequent stage as long as the prior
adjudication is for the same project. USCIS will continue
to completely review a prospective immigrant investor’s
lawful source of funds and other eligibility criteria.
• Actual v. Hypothetical Projects
Business creators may propose hypothetical projects in
their application for the designation of a new regional
center (“RC”). Determinations based on hypothetical
projects will not receive deference and the actual projects
upon which the Form I-526 petitions will be based will
be reviewed as new. An amendment Form I-924 application is not required to perfect a hypothetical project once
actual details are available. The Form I-924 for the designation of a new regional center may be for i) a hypothetical project; ii) an actual project; or iii) for a shovel-ready
project coupled with an exemplar application.
• Regional Center’s Geographical Area
USCIS is likely to accept an RC’s geographical extension
if it can show by a preponderance of the evidence that
the proposed area contributes significantly to the nation’s
supply chain and labor pool of the proposed projects.
The memo confirms that counting of indirect jobs is
permissible outside an RC’s geographical boundaries.
Because of this, RCs have greater capacity to sponsor
projects without fear of delays caused by amendment
applications. Project developers will have more options
when looking for RCs to sponsor without fear caused by
delays in applying for a formal amendment.
E B 5 I n v e s to r s M ag a z i n e