At its July 28, 2016 stakeholder engagement, USCIS Immigrant Investor Program Office (IPO) Chief Nicholas Colucci focused his opening remarks on USCIS’s efforts to enhance the IPO’s adjudication capabilities, the office’s commitment to conducting program oversight and promoting program integrity, and the role of the designated regional center in maintaining program integrity. Before delving into a discussion of oversight-related issues, Mr. Colucci reported on the following:
- During the 18 months leading up to June 30, 2016, USCIS received more than 21,000 I-526 petitions, with approximately 11,900 approved. Mr. Colucci also reported that USCIS had approved approximately 2,300 I-829 petitions approved during that period.
- With respect to IPO staffing, USCIS anticipated that it would achieve its staffing goal of 171 IPO staff by the end of calendar year 2016. Mr. Colucci noted that the agency has been hiring lawyers, economists, and individuals with expertise in the securities and banking industries to strengthen the IPO’s capabilities.
- Mr. Colucci discussed a forthcoming report from the Department of Commerce that examines the economic impact of the EB-5 program. Mr. Colucci previewed the report by suggesting its estimates of positive economic impact could exceed estimates made by USCIS as well as other private-sector economic studies of the program.
Issues Concerning EB-5 Investment by a Minor
The issue of whether a minor child can be a principal EB-5 petitioner received considerable attention at the meeting and was addressed by USCIS in prepared remarks. In light of USCIS backlogs, and to avoid the possibility of a minor child aging out as a result of associated delays, potential investors have begun considering making a minor child the principal EB-5 investor. USCIS recognized at the outset that the issue will be case-specific and that there is no age limitation in the EB-5 regulations. But the agency also raised two general issues relevant to their analysis of the question. First, USCIS raised the question of whether a minor has the capacity to enter into a binding contract, and noted that minor petitioners would have the burden of demonstrating that the contract is binding on the minor. Second, the agency noted that if the minor petitioner is under 14, a parent or guardian would be required to sign the petition on the minor’s behalf, and further that in that case, proof of the legal guardian or parental relationship would need to accompany the petition.
Program Integrity and Oversight
The latter part of Mr. Colucci’s remarks focused on program oversight and integrity. He emphasized the IPO’s efforts to more broadly engage entities in the business and financial communities, in part, he reported, to expand the reporting of suspected EB-5-related misconduct to the Department of Treasury. Mr. Colucci noted that Fraud Detection and National Security Directorate (FDNS) staff would be conducting site visits to some job-creating entities (JCE) and that I-829 interviews would be taking place for some investors. He stated that site visits would be ongoing around the country, primarily in an unannounced fashion. I-829 interviews will be conducted with some petitioners by adjudicators and via videoconference.
Mr. Colucci took the opportunity to emphasize the significant responsibilities that regional center operators have to oversee the activity occurring within the ambit of their designations, and the “central” role they play in ensuring the program’s integrity. He recognized that the “paradigm” of regional center relationships has expanded, and stressed that the due diligence, monitoring, and oversight of the capital investment into projects within the regional center are the responsibility of the regional center. Along with a regional center designation, said Mr. Colucci, comes “great responsibility and trust.”
Regional Center Audits
These comments led into a discussion about the implementation of an audit process for regional centers. The audits will be conducted on the regional center by IPO staff, which will provide notice of the audit. The audit will look at aspects of the regional center including the regional center’s compliance with applicable law and regulation, the nature of the oversight the regional center is conducting on the projects it is sponsoring, the path of funds from investor, to escrow, to the new commercial enterprise (NCE), to the JCE. Mr. Colucci sent a clear message reinforcing the seriousness with which USCIS views program oversight, as well as the responsibilities designated regional centers have as the federally designated entity to assist the agency in ensuring the program’s integrity.
Finally, IPO officials discussed EB-5 updates to the USCIS policy manual, which will be published for public comment, as well as forthcoming revisions to forms I-924, I-924A, and I-526. An IPO official then discussed briefly the progress of forthcoming USCIS EB-5 regulations. As stakeholders are aware, the regulations will reportedly address issues including minimum investment amounts, targeted employment areas (TEA), regional center designation, and job creation methodology. IPO staff was constrained, however, from providing any detail on what the regulations may contain, but anticipated the regulations could be published in the near future (though not addressed during the stakeholder meeting, Secretary of Homeland Security Jeh Johnson testified before the Senate Judiciary Committee on June 30, 2016 that he expected USCIS to publish the EB-5 regulations at some point in November 2016).