At a grand total of 486 pages, the EB-5 adjudicator training materials released by USCIS last month could have a significant impact on EB-5 practice.
If nothing else, the documentation should "aid U.S. immigration attorneys in preparing and submitting more complete petition packets," said attorney Steven Culbreath. The ability to do that would likely be well worth any time spent analyzing the materials, which are voluminous and full of detail.
EB-5 visa attorneys have long maintained that USCIS requests items from their clients that were never before listed as necessary for the processing of petitions. The hope of many in the EB-5 community, it seems, is that these materials will lend more transparency to adjudication protocol, making the entire process easier for EB-5 applicants and their attorneys to navigate.
The Devil in the Details
The release of these documents was a bombshell. In response to a Freedom of Information Act request, USCIS disseminated notes on how it reviews form I-526, information on federal EB-5 precedent decisions like the Matters of Soffici, Izumii, Hsiung, and Ho, copies of I-526 and I-829 denial notices, and interoffice memoranda dating back to 1998.
Copies of Requests for Evidence (RFE's) sent to individual regional centers were also included in the release, albeit with sensitive information about investors redacted. According to one of the adjudicator training presentations, "RFE's are commonly necessary," a reality that certainly has not escaped the notice of EB-5 attorneys and regional center operators over the years.
Also included in the materials is a checklist detailing information to look for in an EB-5 business plan as well as several "In-depth capital investment issues" meant to address common "deficiencies" in EB-5 investment procedure ? lack of documentation proving the legal acquisition of funds or insufficient documenting of the source and path of funds, for example.
"We are not performing IRS audits of capital," the presentation states, "but we do need to track the path of the capital to make sure that it belongs to the petitioner."
Attorneys Comment on the Materials
Reaction among EB-5 attorneys has been mostly positive if not jubilant. The opportunity to understand exactly how EB-5 adjudicators approach new petitions could mean less uncertainty on the part of immigrant investors and those who represent them.
In statements provided to EB5info.com, several attorneys commented on the release of these documents and what their availability means to EB-5 practitioners and their clients. Kristina Rost of Maged and Rost thinks obtaining the materials was "a brilliant idea" that will benefit the EB-5 community:
They provide an excellent framework and insight into the interdoings of USCIS and allow us to see what emphasis is relevant for each criteria from adjudicators' point of view. Many questions still remain, of course, yet the road is becoming less stony with materials of this amplitude being available to EB-5 attorneys.
Vaughan de Kirby, who practices immigration law in California, concurs:
To have this material helps assure us that we are communicating with the adjudicating officers in the language they are looking for. [?] The adjudicating officer, our client, and our firm have the same goal: a lawful EB-5 investment that stimulates job creation and provides a participating foreign investor with permanent residency. Transparency and communication in this process can go a long way toward moving us to this goal.
In spite of such encouraging commentary, only time will demonstrate whether having this breadth of new information will make the petitioning process smoother. According to attorney Charles Kuck, simply knowing what adjudicators are taught does not necessarily mean those adjudicators are applying their training appropriately:
These training materials are designed to teach a new generation of unprepared examiners how to adjudicate extraordinarily complicated financial-based cases. The bigger question is this: Are the examiners receiving this training prepared to understand it and implement it correctly, or will we be faced with yet another hurdle for foreign nationals to navigate, just for the privilege of investing in America?
Even Steven Culbreath, who insists that "getting cases in and out the door 'should' be smoother" assuming USCIS and practitioners are on the same page, is skeptical. "If USCIS continues to send lengthy laundry lists of requested items not previously listed or provided to practitioners, we could still see lengthy processing problems and issues," he explained.
Overall, knowing exactly what adjudicators are looking for ? or, at least, what they should be looking for ? is a victory for EB-5 attorneys. Whether it smooths over several aspects of the process (or not), adjudicators' awareness that their "textbooks" are in the public domain should bring some relief to practitioners like Culbreath.
"The intent of USCIS to provide better all-round education in the EB-5 arena should be applauded," he said.