Please join Greenberg Traurig attorneys Jennifer Hermansky, Natalie Gorelishvili, and Luna Ma on Jan. 30, 2024, for a discussion on strategies for preparing the EB-5 source of funds for new I-526E cases and for responding to challenging requests for evidence on the source and path of funds. Additionally, the team will talk about important considerations for EB-5 investors wishing to concurrently file adjustment of status applications.

Click here to register.

This blog post provides stakeholders with a filing tip regarding Form I-526E, Immigrant Petition by Regional Center Investor. When filing Form I-526E, if the applicant has an existing My USCIS account number, it should be included in the I-526E application in order to check its status. USCIS’s systems may not be able to connect the I-526E to an existing account unless that number is included in the I-526E filing.

A notification stating that “Your case has been linked to another account” means the USCIS online account number was not provided in the application submitted. If this number is not included in the application, the system will assume there is no online account available, and it will send the applicant an online access code. Note, however, that a new code cannot be recreated to replace the one received to associate the application to your existing account. In such situations, an applicant may need to create a new USCIS online account, using a different email, to be able to follow the status of the application.

On July 18, 2023, United States Citizenship and Immigration (USCIS) announced an update to the visa availability approach to managing the inventory of Form I-526, Immigrant Petition by Alien Investor, as part of an effort to improve efficiency in the processing of these petitions. The announcement comes as USCIS has been under scrutiny regarding the lengthy processing times for EB-5 cases. At the time of writing, the processing time for a Form I-526 petition filed prior to the passage of the EB-5 Reform and Integrity Act of 2022 (RIA) is at least 56.5 months for those investors not subject to a visa retrogression.

The USCIS Immigrant Investor Program Office (IPO) manages the inventory of Form I-526 petitions through workflow queues. Previously, these queues operated on a first-in, first-out basis and accounted for factors such as whether a visa was available or would be soon (i.e., whether the investor’s country of birth was subject to a visa retrogression).

Effective July 18, 2023, USCIS announced that the IPO will implement a new strategy in handling the workflow queues of Form I-526 petitions by grouping these petitions into three “queues” for adjudication. The first queue will contain Form I-526 petitions where a visa is not available and is not likely to be available soon. Presumably, this would be the longest queue and would contain those petitions subject to visa retrogression for investors born in mainland China. The second queue contains I-526 Petitions where a visa is available or will be soon available, but where the IPO has not yet reviewed the investment project materials. The third queue will contain those I-526 petitions where a visa is available or soon available and where IPO has previously reviewed the project, or the I-526 is a “direct” or non-Regional Center petition. While USCIS has not stated this explicitly, this third queue would likely receive priority over the other two queues because visas are available and the project was previously approved in other I-526 petitions; therefore, only the investor’s source of funds would need to be reviewed by the IPO adjudicator.

According to USCIS, this update will allow adjudicators to process Form I-526 petitions more efficiently as they will be handling multiple petitions associated with the same new commercial enterprise (NCE) and consequently, adjudicators will be simultaneously reviewing petitions that have overlaps in project documents and issues presented.

Importantly, this announcement from USCIS does not state that Form I-526E petitions filed under the RIA would be placed into any of these queues. It is not clear from the announcement how USCIS will process Form I-526E petitions, nor has USCIS updated its processing time website to reflect Form I-526E as a type of petition that has a posted processing time. Instead, the July 18, 2023, announcement deals only with those older pending I-526 petitions filed prior to the passage of the RIA. While this new visa availability approach should enable the IPO to increase processing efficiency, reduce the backlog and completion times for Form I-526 petitions, and support consistency and accuracy in adjudications, it is not clear how quickly this change will impact I-526 petition processing times. USCIS has not released recent statistics about the number of IPO adjudicators assigned to Form I-526 petitions, nor does this announcement commit to any specific processing times. Instead, some investors seeking to expedite the processing of their I-526 petitions have filed mandamus actions in U.S. district courts, asking the courts to intervene and order USCIS to decide the I-526 petition due to an unreasonable delay caused by the IPO.

Effective March 15, 2023, United States Citizenship and Immigration Services (USCIS) is removing the biometrics submission requirement and $85 fee requirement for petitioners filing Form I-526E, Immigrant Petition by Regional Center Investor. Petitioners no longer need to submit the fee for biometrics services with their Form I-526E.

USCIS has determined that widespread biometrics collection is not necessary in connection with the filing of Form I-526E for all regional center investor petitioners in order to confirm compliance with the Immigration and Nationality Act. However, USCIS may request the submission of biometrics if necessary.

Since 2022, USCIS has received about 980 Form I-526E petitions filed with the biometrics fee. They will refund these fees in the coming weeks. Petitioners do not need to contact USCIS to request a refund.

On March 11, 2022, Congress passed the “EB-5 Reform and Integrity Act” as part of the Omnibus spending bill. See blog post here. On April 11, 2022, USCIS posted an interpretation of the legislation that would nullify all 600-plus designated regional centers and require all entities to be re-designated in order to be authorized to file petitions under the new law pursuant to provisions effective May 14, 2022. This interpretation was challenged in the U.S. District Court for the Northern District of California by the EB-5 Investment Coalition (EB5IC) through one of its members. Greenberg Traurig, as counsel for the plaintiff, argued strongly that USCIS’ interpretation ran counter to the plain language of the EB-5 Reform and Integrity Act (RIA) and violated the Administrative Procedure Act because USCIS failed to properly engage in reasoned decision-making as required by law. Today, the Court agreed and enjoined USCIS from treating as deauthorized previously designated regional centers and declared they must be permitted to operate within the regime created by the RIA. As the Court stated, “[t]his includes processing new I‑526 petitions from immigrants investing through previously authorized regional centers…just as the agency would do for a newly approved regional center.” As a result of this ruling, all previously designated regional centers retain their existing designation and can continue to operate.

In remarks, the Court found a strong likelihood of success on the merits by the Plaintiff. The Court concluded that “USCIS was almost certainly wrong” when it deauthorized all existing regional centers. After a thorough analysis the Court found the RIA to be “silent or ambiguous” on the question of whether Congress intended to deauthorized existing regional centers. If Congress had intended to take such a drastic step, it should or could have done so more explicitly and transparently. An absence of such explicit instruction coupled with various “hints” in the RIA that Congress intended for existing regional centers to remain designated was sufficient for the Court to find that the RIA was ambiguous. Thus, the Court concluded that USCIS’ decision rested on “an erroneous view of the law,” the Plaintiff is “exceedingly likely (if not certain)” to prevail on the merits.

While this is a victory for the Plaintiff, it remains to be seen how USCIS will act or whether USCIS will appear and seek a stay of this ruling and/or decide to embark on new rulemaking. USCIS is still permitted to engage in “reasoned decision-making consistent with the Administrative Procedure Act” about how regional centers should be treated given certain ambiguities in the RIA. As the Court noted, it is possible that USCIS, after engaging in the required reasoned decision‑making process, could conclude that new regional center applications are required of existing regional centers. Alternatively, it is possible USCIS could simply allow regional centers to operate while applications for a renewed designation are pending. These are only two possible outcomes of many, and all eyes will be on USCIS’ next move. Subscribe to our blog for further updates.

On Thursday, Feb. 17 at 10 a.m. EST, please join Kate Kalmykov and Jennifer Hermansky, shareholders in GT’s Immigration & Compliance Practice, as they present a webinar titled “New Issues in I-829 Adjudications: A Reexamination of Source of Funds Issues Post I-526 Approval.”

This webinar will cover the following topics:

  • Re-examination of the lawful source of funds from the I-526 Petition at the I-829 Petition stage
  • Strategies for responding to USCIS notices applying incorrect legal standards in the I-829 Petition
  • Removal defense litigation following an improper I-829 Petition denial

Click here to register.

USCIS released a new version of I-526 form on its website on April 23, 2019. Starting June 25, 2019, USCIS will only accept the new version Form I-526 (edition 04/15/19). Until then, investors can use the 05/30/2017 edition. Both editions of Form I-526 are available to download on the USCIS website. There are no substantial changes as compared to the update from the 12/23/16 edition to 04/10/17 edition. The 4/15/19 edition is more or less identical in content compared with the 05/30/17 edition. Investors need to fill out the employment and physical address history for the last five years. Investors who are going to file the petition in June or later should pay special attention to the form edition to avoid rejection of their petitions. The edition information for the form can be found at the bottom left corner of each page. (See Below)

Please note that USCIS has been very strict with information consistency; as such, when filling in the employment and physical address history information, investors should make sure the information they enter matches the DS160 records, if they have ever applied for a nonimmigrant visa to the United States, as inconsistent information may result in an RFE or NOID on their I-526 petitions.

For more on Form I-526, click here.

We previously reported on the disturbing Request for Evidence (RFE) trend where investors and their attorneys were not receiving RFEs in the mail even though the case status showed that one was issued.  We are now reporting on another trend, this time in the substance of the RFEs and the results from submitting responses, specifically to the RFEs that request additional evidence from third-party money exchangers.

Continue Reading I-526 Practice Tips to Help Avoid RFEs and NOIDs on Third-Party Exchangers

Investors and their attorneys alike have taken note of a disturbing trend recently:  when USCIS issues a Request for Evidence (RFE), it is oftentimes not received by either party.  Typically, RFEs are mailed in hard copy, and a copy is mailed to the Investor, and a second copy is mailed to the attorney of record.  In almost all cases with I-526 RFEs, the Investor is given 87 days to respond if he or she resides in the United States, and 98 days to respond if he or she resides outside of the United States.   Recently, upon checking the status of a case using the USCIS online portal, the Investor and/or attorney will find that “A Request for Additional Evidence Has Been Mailed,” on a specific date; however, frequently the RFE is never received by either party, including the attorney of record that should receive a copy of all communications from USCIS.  Common protocol is to follow up with USCIS via email, but some have experienced 1) unresponsiveness from USCIS, sometimes taking a several weeks to respond; and 2) the officer responding is unwilling to attach the RFE to the email correspondence without proof the RFE was not delivered, a standard which is impossible to prove given that USCIS mails the RFEs via U.S. Postal Service with no delivery tracking.

Continue Reading I-526 TREND: Delays in Receiving Requests for Evidence