The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
Does the EB-5 program belong at USCIS? That is a question actively being discussed in meetings I have attended both with Congressional offices and with high-ranking USCIS officials. Although issues of source and tracing of funds sometimes involve complicated financial documents and transactions, USCIS officials have experience dealing with similar issues in L-1, E-2 and other contexts. However, USCIS adjudicators have no relevant experience or financial or economic expertise to bring to bear on issues of regional center certifications, evaluation of econometric reports and approval of development projects in the exemplar I-526 procedure.
If not USCIS, then where? The most obvious answer is the Department of Commerce, where the Invest in America function resides. The mission of that unit is to encourage investment in the U.S., including supporting EB-5 regional centers. Arguably, the Department of Commerce would bring both an appreciation of the importance of the EB-5 program (and especially the regional center EB-5 program, which accounts for more than 95% of the EB-5 petitions), as well as a higher level of financial and economic expertise and training.
A big question is whether a two agency procedure is advantageous. Presumably, if such a dichotomy of jurisdiction were to occur, the Department of Commerce would deal with regional center certifications, exemplar I-526 petitions and approval of the investment enterprise in connection with both individual and regional center I-526 filings. This would leave to USCIS dealing solely with the source of funds and tracing of funds issues in adjudicating the I-526 petition.
There are some obvious analogies. Perhaps the most obvious one is the labor certification procedure whereby the Department of Labor must issue a labor certification before USCIS can adjudicate an I-140 petition. USCIS does not re-adjudicate what has already been adjudicated by the Department of Labor. Another analogy might be the blanket L-1 petition procedure whereby USCIS approves the blanket, and the U.S. Consulate then adjudicates the L-1 visa application and does not revisit the determination of the corporate relationship.
This two agency solution is not without controversy. Some believe that any procedure that involves two agencies will likely increase — rather than decrease — processing times. In any event, as more questions are raised regarding USCIS policies and adjudications in the EB-5 area, it is a topic that may be worthy of — and may get — further attention.
