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USCIS EB-5 Modernization Rule Moves Forward

March 28th, 2019 Colin Behring

On February 22, 2019, USCIS sent the final version of Rule 1615-AC07, known as EB-5 Immigrant Investor Program Modernization Rule, to the Office of Management and Budget (OMB) for review (https://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp). While this is a significant step forward, OMB is under no legal deadline to complete the review. Once OMB completes its review, one of two things can happen: (1) OMB can send it back to USCIS for further revision; or (2) OMB will forward to have the rule published in the Federal Register. Once published, the final rule will be effective, generally within 30 days.

We don’t know what the final rule looks like. When notice for the proposed rule was published for public comment in January 2017, the draft (https://www.federalregister.gov/documents/2017/01/13/2017-00447/eb-5-immigrant-investor-program-modernization) proposed significant changes to the EB-5 Program, including increasing the standard investment amount to $1,800,000, or $1,350,000 in a TEA. It also sought to change TEA definitions and to give DHS, not the states, responsibility for approving a TEA, among several other changes. The proposed rule generated significant public comment. We don’t know yet if USCIS took heed of the comments and revised the rule.

For a comprehensive review of the history (https://blog.lucidtext.com/2017/05/20/new-eb-5-regulations-comments-discussion/)  of the EB-5 Modernization Rule, see Suzanne Lazicki’s wonderful blog (www.blog.lucidtext.com).

Behring is keeping abreast of the developments of EB-5 policy reform. Follow our blog to stay informed. You may also contact our team (https://calendly.com/behring/eb-5-phone-consultation) to learn more about how Behring has developed market-based solutions to overcome the challenges many investors face as a result of EB-5 retrogression in China, Vietnam and soon India.

EXPEDITED PROCESSING – WHAT IS IT AND IS IT RELEVANT?

EB-5 investors frequently ask if their green cards can somehow be expedited. The request is reasonable in light of USCIS – as of last year – taking up to 20-24 months just to process the I-526 petition (LINK), not to mention the backlogs many investors from China, Vietnam, and (imminently) India face because of retrogression (link). The problem is compounded by the pressures many H1-B visa holders face, including expiration of H1-B visa (LINK), huge backlogs for EB-2 and EB-3 (LINK), aging out of dependent children (LINK) and proposed rules to revoke the ability for H-4 spouses to work (LINK). In short, while it is possible – under limited circumstances – to expedite processing of the I-526 Petition, it does not necessarily expedite the green card. In fact, because of retrogression and faster I-526 processing, expedited processing of the I-526 petition is fast losing its relevance.

What is it expedited processing?

In its sole discretion, USCIS will consider requests to expedite processing of a petition or application for immigration benefits on a case-by-case basis. It may expedite a petition if it meets one or more of the following criteria:
1) Severe financial loss to company or ​person​; ​

2) Emergency situation; ​

3) Humanitarian reasons; ​

4) Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​; ​

5) Department of Defense or ​n​ational ​i​nterest ​s​ituation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);

6) USCIS error; or​

7) Compelling interest of USCIS.​

 

 

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