The US Citizen and Immigration Service (USCIS) is taking steps to encourage foreign investment in the United States, by re-visiting its policies and procedures regarding the Employment Creation Program. Commonly known as the EB-5 Program, or million dollar investor visa, the program established in 1990, under legislation that envisioned lawful permanent resident status for immigrant investors who invested their capital in job-creating businesses.

In early November, USCIS Director Alejandro Mayorkas delivered a message outlining the reforms planned for the EB-5 Program and offered a proposed draft memorandum for public comment. The initiative to consolidate and accelerate the adjudication process is ambitious and also highlights the commitment by USCIS to promote the nation's interest in attracting foreign dollars.

USCIS acknowledged that its strict interpretation of the regulations required easing, in light of the realities of the current business environment. The EB-5 Program has recognized that in the case of a troubled business, there is overall benefit to the national economy when an immigrant investor provides capital which helps preserve the existing jobs of that business. Therefore, the USCIS has hired a consulting firm to reengineer the EB-5 adjudication process to deliver greater efficiencies, expert business analysis, and better support for the adjudication process generally.

Some of the changes that may be expected or are already in place are:

  • Premium Processing for EB-5: The goal is to have premium processing available for initial I-924 (Application for Regional Center) applications by spring of 2012. Premium processing allows the applicant to pay a fee to the USCIS to have the application adjudicated within 15 days. The Director also reiterated that the service is working hard to speed up processing times across the board for all petitions, independent of premium processing.
  • TEA (Targeted Employment Area) Issues: TEA designation in the draft memo represents guidance that is effective immediately. Consistent with the regulation, USCIS is to give deference to the state's designation of the targeted employment area.
  • Changed circumstances: Historically, USCIS has required a direct connection between the business plan an investor has provided and the subsequent removal of conditions of a temporary green card. USCIS would not approve a green card if the jobs were not created according to the plan presented in the initial petition. While that USCIS position is a permissible construction of the statute, USCIS notes that the statute does not require that direct connection. In order to provide flexibility when an investor's company has experienced economic set-backs, USCIS suggests that it will permit an alien who has been admitted to the United States on a conditional green card basis to remove those conditions when circumstances have changed.

Given the collaborative approach the USCIS is now introducing to address fundamental issues in the EB-5 Program, foreign entrepreneurs and US businesses alike should become more active in exploring investment opportunities and options that would take advantage of the EB-5 green card process.

Although this memorandum is proof of Director Mayorkas' intensive focus to improve the EB-5 program, the business community can also expect more scrutiny and compliance monitoring, both on immigration and corporate securities. Therefore, it is critical that foreign investors and Regional Centers ensure broad compliance and establish procedures for vetting proposed investment projects in light of the current federal regulations and the up-coming changes in USCIS guidance.

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