By Mona Shah, Esq. and Rebecca S. Singh, Esq.
Amid the raised eyebrows following the out-of-character announcement from U.S. Citizenship and Immigration Services (“USCIS”) that it is holding an “engagement” allowing for feedback on various EB-5 mandates, some practitioners are wondering about the descriptor for this event, as it reflects a curious—and perhaps significant—change in language from previous announcements of this nature.
“[They] seem to be calling this an engagement session as opposed to a listening session,” noted Aaron Grau, Executive Director of Invest in the USA (“IIUSA”), referring to USCIS’s favored term for such events. “I have no idea what that means.”
Neither, likely, will many of the attendees at the virtual happening, slated to take place on March 20 from 1:30 p.m. to 3 p.m. Designed to be more of a discussion than a sounding board for complaints, the engagement should still see a flurry of concerns voiced by EB-5 stakeholders in a similar manner to those raised during USCIS’s most recent listening session. During that call, the agency—without answering specific questions—fielded a litany of sometimes polite, sometimes more forceful complaints from lawyers and other players in the sector about its recent proposal to hike fees. But the carefully chosen verbiage in the aforementioned announcement suggests a transformation in terminology that could, conceivably, be informed by USCIS’s efforts to interact more with practitioners.
Is this the kinder, gentler side of government oversight? Or should everyone go back to worrying that the agency will retain its imperious, opaque attitude toward clarifying requirements for the EB-5 set?
There are precedents for such sea changes in policy; indeed, previous stakeholder meetings have witnessed a host of bombshell announcements. For example: During the EB-5 Immigrant Investor Stakeholder Engagement on March 3, 2017, listeners were stunned at USCIS’s announcement of a policy change to the process for expanding the geographic scope of a regional center. This policy was quietly changed on December 23, 2016, when USCIS released a new edition of Form I-924. During the stakeholder’s engagement, the agency announced that this change to the form’s instructions would have major policy implications and devastating effects on projects given USCIS’s long processing times. One attorney at the engagement angrily stated that he had been waiting for more than 14 months for USCIS to approve an amendment requesting expanded geographic scope, only to hear that now he would need to submit a brand-new application and that any petitions filed would be denied.
Although the industry should not expect too much too soon, it is—in the spirit of countless underwhelming birthday presents throughout history—the thought that counts. At any rate, the new engagement will cover three important, seriously heavy topics (which upcoming articles on msshahlaw.com will analyze, so stay tuned!); they are, as USCIS itself states:
- Direct and Third-Party Promoters: A promoter should submit Form I-956K, Registration for Direct and Third-Party Promoters, before operating on behalf of any of the specified entities or promoting any offering under the EB-5 Regional Center Program. The promoter must submit Form I-956K separate from the Form I-956F, Application for Approval of an Investment in a Commercial Enterprise, to seek an approval of an investment in a commercial enterprise.
- Investment Period: USCIS will discuss the requirements for an immigrant investor to sustain their investment if they filed Form I-526, Immigrant Petition by Standalone Investor, before March 15, 2022, and the new requirement under the EB-5 Reform and Integrity Act of 2022 (RIA) that capital must be expected to remain invested for at least two years for those who filed an I-526 or Form I-526E on or after March 15, 2022.
- Regional Center Operations: We will discuss issues related to regional center operations, in particular those who wish to withdraw from the program and terminate their status and those who do not wish to solicit investments for new projects under the RIA.
A Q&A will follow the initial discussion. One may submit a question in advance by contacting the Public Engagement mailbox at email@example.com. To register to participate in the engagement, click here.
Undoubtedly, EB-5 stakeholders will have plenty to say on the topics. After all, the past year has been a whirlwind of regional-center controversy—a whirlwind that, if this event is any indication, is not ready to slow down. Given the engagement’s scheduled 90-minute duration, both practitioners and the USCIS probably will leave many things unspoken, especially as USCIS advises to keep all questions within the parameters of the three stated topics.
We say: Let the bombshells commence. At this stage, EB-5 practitioners should gird their loins for almost any communications emanating from the agency.
Language barrier or not.
Aaron Muller and Simon Butler contributed to this article. Image credit: erhui1979
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