On April 25, 2023, U.S. Citizenship and Immigration Services (USCIS) hosted a stakeholder engagement webinar regarding the Immigrant Investor Program (EB-5), during which they discussed regulations being drafted to comply with the EB-5 Reform and Integrity Act (RIA). USCIS planned three discussion topics for the call, including the “winding up” of regional centers no longer operating under the RIA, updates to the “at risk” requirements for investors who filed Form I-526E Petitions after the RIA passage, and Form I-956K applications for migration agent registrations. At the outset of the stakeholder engagement, however, USCIS stated they were not prepared to discuss the winding up of regional centers or the new “at risk” requirements. Instead, the call only focused on clarifications of Form I-956K, Registration for Direct and Third-Party Promoters, and other EB-5 related issues.
The Form I-956K was published in response to the RIA requiring all direct and third-party promoters to register with USCIS. On the stakeholder call, USCIS clarified the following for I-956K completion:
Who must file I-956K? The person or entity that entered into the written agreement with the new commercial enterprise or regional center to market the project must file the form. In addition, certain employees of the third-party promoter or migration agent also must complete the form and file it with USCIS:♦ Executives or officers, or those who are actively promoting the EB-5 Program, should file Form I-956K. Based on this guidance, marketing staff at migration agents may need to complete this form and file it with USCIS.
♦ Personnel not involved in the sale of EB-5, such as document processing specialists, are not required to file Form I-956K.
USCIS also stated on the call that if any agent commits fraud or material misrepresentation on the I-956K, USCIS can deny associated I-526E Petitions. Filing of the I-956K is based on the promotion of the project; if the project is no longer being promoted because it was sold to investors who filed before the passage of the RIA (even if payments to agents are ongoing), the migration agents do not need to register on the basis of those older projects. USCIS will publish lists of agents and promoters registered through I-956K on their website in the future.
USCIS also stated on the call that an EB-5 investor’s capital must be at risk and remain invested during the two-year period of conditional residences for those investors who filed I-526 Petitions before the passage of the RIA. This requirement did not change for investors who filed prior to March 15, 2022. USCIS did not comment on the new “at risk” requirements for investors who filed Form I-526E Petitions after the passage of the RIA.
USCIS also made the following general comments:
If USCIS terminates a regional center, they will notify all investors with a pending I-526/I-526E. All regional centers must pay the Integrity Fund fee regardless of when they are designated. USCIS does not encourage the submission of project documents along with I-526E Petitions, as the complete project documents were already included in the Form I-956F Application. USCIS is taking steps to transition to electronic submission of Form I-526E and Form I-526.
USCIS did not discuss IPO operations, adjudication trends, or processing times during this call.