The deadline to submit comments to USCIS regarding its latest EB-5-related draft policy memorandum just passed, and the American Immigration Lawyers Association (AILA) assembled a comprehensive list of issues it would like the agency to address.
On November 9, USCIS Director Alejandro Mayorkas led a conference call to discuss the draft memo (PDF warning). Unlike previous memoranda, it seeks to compile all EB-5 memoranda into a single document that will guide the adjudication process going forward. This is the latest instance in the agency's recent effort to streamline EB-5 adjudications and work more closely with the EB-5 community to create jobs for American workers.
Although policy in the memo technically hasn't taken effect yet, a few changes became effective immediately following its being issued last month:
- The agency will defer to a state's TEA designation.
- Regional center operators can use investor capital in various ways (e.g. bridge financing, funding operations, et al.).
In stating that it will honor a state's TEA designation, specific language in the document confirms the agency's intention to defer "to the state's designation of the boundaries of the geographic or political subdivision that will be in the targeted employment area."
This issue had previously been a point of contention between EB-5 stakeholders and the agency.
As for the ability of EB-5 regional centers to use investor funds in a number of ways, it's important to note that the agency still must see that EB-5 projects have created jobs as a result of the capital invested. It is, after all, the business itself, not to mention local economic environments, that allow job creation to occur. Capital investment simply allows an operation to run and to grow ? new job creation is the result of a growing enterprise.
USCIS invited EB-5 stakeholders to comment on these and other aspects of the draft policy memorandum. The deadline was December 9, exactly one month after Director Mayorkas's conference call.
Given the Director's comment that USCIS is sharing the draft policy memorandum now in order to "obtain valuable real-time input and to define a collaborative approach with the stakeholder community," AILA has really stepped up to the plate with an extensive list of comments.
Although the organization "[believes] that much of the Draft Memorandum contains an accurate recitation of the law and existing policy," according to introductory remarks that precede its list of comments, AILA seeks to clarify several facets of the memo:
Our comments include (a) areas where the law has been incorrectly stated; (b) areas covered by the Draft Memorandum where further clarification would be beneficial; and (c) areas not covered by the Draft Memorandum where we ask for the opportunity to provide suggested language.
What follows are several pages containing a total of 24 comments, many with multiple bullet points. All of the organization's comments are available for download here.
Despite any reservations it has about the draft policy memorandum and the changes it would like USCIS to implement, AILA also "applauds the efforts of USCIS to create a comprehensive memorandum that consolidates the agency?s guidance to stakeholders in the EB-5 area."
It's probably safe to say that the rest of the EB-5 community does, too.