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New Developments And Hot Topics In The EB-5 Investor Green Card Arena

by Bernard P. Wolfsdorf

1) USCIS will introduce direct two-way email contact with immigration examiners beginning early September 2011 where questions can be asked and issues resolved related to pending I-924's.

2) EB-5 adjudications will be much faster as premium processing will be introduced within weeks. Premium processing requires payment of an extra $1,225 and permits adjudications within 15 regular business days. Premium processing will be limited to so-called "shovel ready" projects and will exclude hypothetical projects.

3) USCIS is hiring and training economists and is moving towards a consultative process where regional centers can present evidence to economists and other experts.

4) On September 8, 2011, the House of Representatives Judiciary Committee will consider whether to recommend a permanent or temporary extension of the regional center program, as well as other investor options including a new EB-6 investor program.

5) Regional center adjudications are being processed more expeditiously with current estimated times at 3-4 months and amendments estimated at about 1 month.

6) Requests for evidence are being processed on a priority basis and may reviewed within 1 month.

7) The USCIS Office of Policy & Strategy is reviewing Targeted Employment Area (TEA) designation letters regarding territorial issues and will issue guidance soon.

8) Bridge Loans and Interim Financing could be a big problem if the financing plan is not clearly laid out in the business plan filed with the I-526 application and this business plan will be carefully examined again at the time the I-829 removal of conditions application is adjudicated. USCIS is not opposed to interim financing but the commercial enterprise must create the jobs as explained in the business plan.

9) Business plans are critical to the adjudication process, and they should be clear and simple, especially in regard to showing where the jobs will be created. An executive summary in plain language is essential for smooth adjudication of all cases. Most important it is critical to stick to the business plan at all stages, including the I-829 stage.

10) For this reason exemplar filing involving hypothetical projects are of limited value. USCIS is examining how to make exemplar filings more effective, especially if they are identical to the actual project.

11) USCIS is considering how to accommodate material changes by allowing the regional center to file an amended exemplar I-526 that would eliminate the need to file new I-526s and would be accepted at the I-829 stage.

12) The I-924A Supplement must be filed within 90 days after the end of the fiscal year, September 30th but before December 29th of the calendar year in which the fiscal year ended. There is an exception for the fifth year, as an I-924 must also be filed that year so the supplement can be filed simultaneously. Regional centers that are not active or don't file will receive an Intent to Terminate. Make sure I-924A Supplement filings are detailed and complete.

13) When submitting any regional center filing, don't include reams of unexplained documents. Instead, carefully review each page to ensure the application is internally consistent and make sure it includes a simple executive summary that clearly describes how and where the jobs will be created.

14) Don't wait for USCIS to discover inconsistencies. Place yourself in the shoes of the immigration examiner. Thoroughly review your case prior to filing. Correct any inconsistencies and/or provide explanations to clarify apparent inconsistencies. This will result in fewer and/or smaller RFE's.

About The Author

Bernard P. Wolfsdorf is the past President of the American Immigration Lawyers Association (AILA). Mr. Wolfsdorf has been named the "most highly rated immigration lawyer in the world" by his peers in the 2011 and 20100 editions of International Who's Who of Business Lawyers. "Mr. Wolfsdorf received more votes from clients and peers worldwide than any other lawyer." Mr. Wolfsdorf is a recipient of the AILA Service Excellence Award for providing outstanding volunteer services. The California Edition of Who's Who recognized Mr. Wolfsdorf as "one of the prestigious names in the field" who "knows his stuff back to front." The Chambers Global World's Leading Lawyers for Business guide noted Mr. Wolfsdorf's "outstanding consular law practice" and called him a "cutting-edge thinker." He is listed in 2011 editions of Best Lawyers in America, Martindale Hubbell's Pre-eminent Specialist Directory, Southern California Super Lawyers, Chambers USA and the Chambers Global World's Leading Lawyers for Business. Mr. Wolfsdorf is a California State Bar-Certified Specialist in Immigration and Nationality Law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.