cases, which mandates a decision or RFE on a case within 15
days, and only costs an additional $1,225 on top of much
lower base fees. Given that I-829s are so much more expensive,
perhaps those funds be better spent in an effort to ensure they
are processed more efficiently.
2. Give immediate and clear guidance
regarding loan-models now that Chinese
retrogression is looming, enabling funds to
be repaid back to the NCE prior to I-829
approval in line with the regulations.
At the time of I-829 filing and adjudication an investor must
have “invested or [be] actively in the process of investing the
requisite capital,” and “substantially met the capital investment
requirement of the statute and continuously maintained his or
her capital investment over the two years of conditional residence.” Although the regulations have not changed in 21 years,
the use of EB-5 funds by stakeholders has changed drastically.
USCIS deserves considerable credit for recognizing this through
guidance such as the May 30, 2013 memorandum.6 But perhaps
the biggest change to the landscape in the program’s history
occurred in August 2014 when Chinese EB-5 visas were made
unavailable. New guidance is needed to reflect how a shortage
in immigrant visa numbers will affect I-829 adjudications.
Here’s why: the EB-5 loan model has become the most prevalent form of job creation today. In this model, the investor’s new
commercial enterprise operates as a pooled investment vehicle to
provide EB-5 financing to a project entity (also known as a job
creating enterprise or “JCE”) in the form of a loan. The JCE’s
use of the loaned funds spurs indirect job creation, to be credited
to the investors. Interest on the loan is paid to the NCE.
“Investors born in Mainland China constitute
approximately 85 percent of EB-5 immigrants.
But now with retrogression for these
petitioners imminent, years could go by after
I-526 approval but before assumption of
Investors born in Mainland China constitute approximately
85 percent of EB-5 immigrants. But now with retrogression
for these petitioners imminent, years could go by after I-526
approval but before assumption of conditional residency. If an
EB-5 loan contract calls for repayment to the new commercial
enterprise prior to an investor achieving I-829 approval, how
will USCIS adjudicate the petition given that there is no longer
any risk of loss to the investor? How long should the loan term
last given that the period of retrogressi