1. Processing Times Improvement. This year we saw the establishment of the EB-5 program office in Washington, DC. I-924 transfers to the new program office have resulted in decreased processing times for initial regional center application as well as amendments. However, I-526 petitions and I-829 petitions are at an all-time slowdown and are now taking 18 months or more to adjudicate. This causes problems for projects in need of financing and shakes investor confidence in the program. A decrease in processing times is urgently needed.
  2. Provide Clarification on Sale of Regional Centers. On May 30th of 2013, the UCSIS released its long awaited binding EB-5 policy guidance. Missing from this guidance was the topic of regional centers sales. Previously, USCIS had held that sales were permitted but required amendments. In recent adjudications, USCIS seems to be shying away from this position. Clear guidance is urgently needed.
  3. Provide Clarification on Geographic Expansion in May 30th Policy Memorandum. While I continue to believe that “reasonableness” that is supported by data of a dependent economic region is required to justify a geographic expansion of an existing regional centers without an amendment. There appears to be much confusion on what is and is not permitted in terms of expansion in the May 30th Memorandum – clarification is needed.
  4. Stop Applying Tenant Occupancy Analysis to Operations Jobs. In many situations, a developer will operate a development with a separate entity which is controlled by the same individuals who control the developer. USCIS will sometimes improperly classify this relationship as tenant occupancy without applying a different analysis based on the interrelation of the eventual operator and developer.
  5. Reconsider Introduction of Premium Processing for I-924 and/ or I-526 Petitions. Two week adjudication times of applications would bring in greater revenues for the USCIS to allow it to expand its services and boost confidence in the program for both U.S. based organizations seeking capital and for foreign investors.
  6. Improve Form I-924A. Form I-924A does not currently have the ability to accurately represent projects. Additionally, for indirect regional center investments it is very hard and in some cases, impossible, to break down job creation by year. There is also no way to represent withdrawn I-526 petitions on the form. The form also doesn’t provide enough space to list a regional center’s NAICS codes. In the past, 3 slots for NAICS codes may have been enough. However, the May 30th Memorandum did away with amendments which has increased the number of NAICS codes a regional center works operates in.
  7. Regional Center Decision Board. In cases, where no exemplar filed provide I-526 applicants and/or Regional Center applicants in a situation where a project has been denied to argue the overall case before the Interim Decision Board before project wide denials are issued to all investor for project deficiencies.
  8. Train Adjudicators on Corporate and Financial Structure Issues. EB-5 financing is becoming more of a traditional way to finance large real estate projects. This is a positive for the program because sophisticated businesses and people will be using EB-5 financing in the future. However, large real estate projects typically utilize complex corporate structures in order to finance large developments. USCIS adjudicators will have to understand common industry ideas such as preferred equity, tiered corporate structures, mortgage positions, mezzanine loans, intercreditor agreements, and the prevalence of senior financing in these complex structures.
  9. Provide Contact Information for Regional Centers on Website. Currently, the USCIS page listing regional centers is a kin to a “data-dump” of information. For businesses and individuals interested in specific geographic areas, it is very difficult to find regional centers in those areas without browsing through pages and pages of Google search results. For this reason, and for transparency and compliance issues, USCIS should list general contact information for each regional center.
  10.  Allow Online Case Tracking for I-829 Applications and Fix Receipting Issues. Because of the issues referenced in Number 13 below, I-829 applications do not issue receipt notices for dependents. This makes it difficult for dependents to obtain I-551 stamps or green card extensions, because they are not listed on the principal applicant’s I-829 receipt notice.
  11. Consider Allowing Regional Centers to Have Standing both I-526 and I-829 Petitions and Accept Dual G-28s. I-526 and I-829 Petitions materially affect a regional centers standing with USCIS. Regional centers must report denials and approvals for both of these positions on their I-526 and I-829 Petitions. The current system does not allow regional centers the ability to provide additional information directly to USCIS for I-829 and I-526 Petitions or monitor progress of those petitions. Allowing regional centers limited standings to supplement project documents and receive case correspondence, which may be redacted to remove certain personal information if necessary, would be helpful for regional centers to ensure compliance with USCIS and other U.S. laws.
  12. Reconsider the 2.5 year Job Rule. For investments in regional centers, the regulations do not contain time constraints on the projected job creation, nor does it reference the time limits that are specifically stated in the regulations pertaining to direct EB-5 investment. Given the nature of many projects this guidance appears to be unworkable. For example, large cities such as New York have construction timelines which far exceed 2.5 years.
  13. Allow Dependents to be Included on I-526 Form to Facilitate National Visa Center Processing. Currently there is no room on an I-526 form as there are with other immigrant visa forms to list dependents. Thus, when the fee bills for immigrant visa processing are issued they often exclude spouses and children and applicants lose valuable time in the immigrant visa process requesting that they be added and the NVC generate new fee bills so review of the petitions commences.
Tags: I-526, I-829, I-924, I-924A, Job Creation, USCIS
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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

…

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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