June 12, 2009
The USCIS memorandum addresses each of the Ombudsman’s EB-5 program recommendations. In most cases, USCIS declines to follow the Ombudsman’s recommendations. The highlights are as follows:
1. USCIS is not yet ready to publish regulations to implement the 2002 EB-5 legislation which provided certain conditional residents a pathway to comply with changes in EB-5 adjudication policy subsequent to the approval of the EB-5 petition that rendered the investor unable to remove conditions.
2. USCIS agrees that EB-5 adjudicators should not re-adjudicate the indirect job creation methodology for regional center cases absent clear error or evidence of fraud. However, USCIS will review the I-829 petition to ensure that all measurable variables and assumptions that underlie the indirect job creation methodology have, in fact, been met, such as direct employment, expenditures of capital and the like. USCIS will not issue a Standard Operating Procedure as suggested by the Ombudsman.
3. USCIS has no immediate plans to promulgate new EB-5 regulations despite recognizing that the present regulations are outdated.
4. USCIS will explore the possibility of developing an inter-governmental advisory group to discuss business, economic and labor considerations relevant to EB-5 adjudications.
5. Premium processing is not imminent for EB-5 petitions.
6. Regional center EB-5 petitions are prioritized and assigned to specific officers.
