1. Faster processing times for EB-5 related petitions across the board. For the better portion of 2012, USCIS has repeatedly stated at EB-5 Stakeholder events that their target processing times for all EB-5 related form types including:

· I-924, Applications for Initial Regional Center Designations

· I-924, Amendment Applications to Regional Center Designations

· I-526, Immigrant Investor Petitions

would be four months. Current processing times for these applications range 8-10 months. Making the process extremely lengthy both for companies seeking access to EB-5 capital, as well as investors intent on starting their lives in the U.S. In 2013, my hope is that processing times become workable.

2. Issuance of New EB-5 Policy Guidance. In November of 2011, USCIS Director Mayorkas announced and USCIS released draft guidance that was supposed to streamline all EB-5 guidance in a central memorandum. The public was given an opportunity to comment and a second iteration of the memorandum was issued for comment in January of 2012. I urge USCIS to publish the new guidance to give both the USCIS adjudicators, as well as the public reliable and binding guidance as to what criteria EB-5 related applications must meet for approval. Not only will this give assurance to the public and provide a more workable framework for applications, but it will eliminate the all to prevalent Requests for Evidence, Notices of Intent to Deny and Denials based on constantly changing policies of adjudicators.

3. Reconsideration of Premium Processing for EB-5 Regional Center Applicants. The adjudication of I-924 applications for regional center designation, amendments of regional center designations for geography or industry code and exemplar I-526 (project pre-approval) is taking at least 9-10 months. Introducing Premium Processing for I-924 applications, a process by which applicants pay an additional fee to have their applications adjudicated within a two week timeframe would allow many projects that are relying on EB-5 funds to move forward at a reasonable pace in line with business needs. USCIS Director Mayorkas initially announced his intention to introduce this program in June of 2011 to I-924 applications but then scrapped the idea earlier this year citing unexplained concerns related to ‘fraud.’

4. Clear Guidance on Requirements for Job Impact Studies. In the past year, the USCIS has introduced new restrictive interpretations related to what jobs qualify for EB-5 purposes particularly for projects that generate tenant jobs. However, they have failed to provide clear guidance on what qualifies as EB-5 eligible and what does not, repeatedly at stakeholder events that cases will be adjudicated on a case-by-case basis. Constant changes and reinterpretations of what constitutes“EB-5 eligible jobs” leads to uncertainty in the EB-5 world: both for the developer or organization seeking funding to create new, U.S. jobs, as well as the foreign investor and his dependent family members who are using the program to obtain U.S. permanent residency.

5. Streamlined Adjudication of I-924 Amendment Filings That Takes into Consideration the Realities of Business. As readers of this blog know, USCIS designated regional centers are approved for specific industries, geographic areas and economic models. Changes to initial designations in any of these areas is permitted but an amendment request must be filed with the USCIS and approved before investors may begin to subscribe to a particular project outside of the scope of the regional center’s initial designation. USCIS must streamline the process for amendments and reduce wait times to receive these approvals. Currently, requests for an amendment to an existing center are taking longer to adjudicate then even applications for initial regional center designation. 

Originally published by www.eb5investors.com

Tags: EB-5 Program
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Photo of Kate Kalmykov Kate Kalmykov

Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of

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Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of all sizes across a variety of industries in understanding and complying with the immigration laws relating to the hiring and retention of foreign talent. Specifically, her practice focuses on supporting clients and advising them on temporary and permanent residency immigration options for multi-national executive, business, scientific, and information technology personnel. In addition, her practice provides support to companies in the global transfer of personnel. Known by her clients for her out-of-the-box thinking, responsiveness and hands-on approach, Kate is often called upon to assist in developing immigration options and strategies in the most unique circumstances and to respond to complex Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs) or to appeal denied cases. Likewise, she has also been instrumental in developing employer compliance programs for DOL related filings including H-1Bs and PERMs, as well as for I-9 employment eligibility verification. To this end, she develops and conducts nationwide I-9 compliance trainings and policy manuals for human resources personnel, advises on best practices for E-Verify employers, provides guidance on avoiding immigration-related unfair employment practices claims and has defended and minimized penalties in immigration-related government audits. Kate regularly works with professionals from the firm’s labor, employment, tax and benefits groups, to provide strategic planning on immigration issues within a cross-border framework.

Kate also has deep experience working on all aspects of the EB-5 immigrant investor program. Kate has worked with real estate developers, private equity funds, and other organizations on applications to designate new EB-5 Regional Centers, applications for pre-approval of EB-5 projects; having projects adopted by existing EB-5 Regional Centers; structuring projects to be EB-5 compliant, the sale of existing EB-5 Regional Centers, preparing template I-526 petitions and advice on structuring direct EB-5 projects. Pursuant to the requirements introduced under the EB-5 Reform and Integrity Act, Kate works with EB-5 Regional Centers, EB-5 Projects, Overseas Migration Agents and Broker/ Dealers to develop internal programs for ongoing compliance and to prepare USCIS I-956, I-956F, I-956,G, I-956H, I-956K submissions. Kate has represented thousands of investors in obtaining their green cards through EB-5 regional center projects, as well as direct EB-5 investment opportunities. She also represented and structured the largest EB-5 offering in the Program’s history and has over the course of her career structured over $12 billion in EB-5 deals.

Within the field of immigration law, Kate is a well-known speaker and author. She is often called upon by various media outlets to comment on topics of business immigration law including the Real Deal, the Wall Street Journal, and Law360. Kate has appeared on numerous TV programs related to immigration law including CNN, the Stoler Report, Vietface TV, and China Business Network. Kate is also a prolific writer on the topic of immigration and has been published in immigration practice handbooks for the American Bar Association, American Immigration Lawyers Association, ILW, and in news periodicals that include the New Jersey Lawyer, the New York Law Journal, the New Jersey Law Journal, USA Today, GlobeSt.com, and the Commercial Observer. At the request of the American Bar Association, Kate co-authored the book “What Every Lawyer Needs to Know About Immigration Law,” a guide for non-lawyers on immigration law practice. She has sat on numerous bar association related committees including the American Immigration Lawyers Association EB-5 Practice Committee, the New Jersey Business Immigration Coalition and has chaired the American Bar Association’s, Committee on Immigration and Naturalization, Section of Administrative Law since 2011. Kate has been recognized in various legal surveys including Chambers Global, New York Super Lawyers, the New Jersey Law Journal who ranked as her as a “New Leader of the Bar,” (formerly 40 under 40) in 2012, NJBIZ “Best 50 Women in Business,” 2019, National Law Review, “Go-To Thought Leader: Immigration Law,” 2022, and Lawdragon 500, Leading U.S. Corporate Employment Lawyers, 2020-2022.

Kate is devoted to pro bono matters and has spent extensive time helping clients fleeing conflict and persecution with asylum applications, applying for and obtaining Temporary Protected Status and Humanitarian Parole.

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