What You May Have Missed in the New EB-5 Regulation

We all know what the new EB-5 regulation states about increased investment amounts, TEAs, priority date retention, and some I-829 issues. However, how many of you reading this blog noticed the following?

Priority Date Retention

1. If the investor’s EB-5 petition is approved, but there is fraud or misappropriation of funds by the regional center, NCE or project, the investor retains his priority date. If there is fraud by the investor that resulted in the approval of the EB-5 petition, the priority date is not retained. If there is a material change after I-526 approval, which results in a revocation of the approved I-526 petition, the investor can still keep her priority date.
2. Priority date retention does not help an investor in the case of a regional center termination or failed or fraudulent project if the offending event occurred before the investor is able to obtain approval of the I-526 petition.
3. The new priority date retention provision provides an additional reason for an investor to file a mandamus complaint in federal court for delayed adjudication. Even if an investor would have difficulty showing prejudice caused by USCIS delays in adjudicating the petition because, for example, the investor is subject to a quota backlog, the investor could now show prejudice because of a desire to get an I-526 petition approved in order to retain the priority date if he now wants to or has to file a new EB-5 petition.
4. There is no priority date retention if USCIS decides that it made a “material error” in approving the original I-526 petition. This is, as they say, a hole you can drive a truck through. In other areas of immigration – – H-1B is a good example – – USCIS has revoked large numbers of petitions stating that it made a “gross error” in approving them. What this really means is that USCIS has changed its position on what qualifies for H-1B. If USCIS changes its position on any issue involving EB-5, priority date retention could be jeopardized.
5. The effective date of priority date retention is November 21, 2019. Unless USCIS advises to the contrary, an investor should withhold filing a new petition until November 21 or after if the investor hopes to avail himself of priority date retention.
6. Priority date retention only applies if the investor files a new EB-5 petition. If, for example, an investor files a subsequent EB-1 petition (which is happening frequently), the priority date is not retained.
7. There is no provision in the regulation to allow the transfer of a priority date to another family member.
8. If an I-829 petition is denied, and the result is that the investor must file a new EB-5 petition, there is no priority date retention.

Language in the preamble to the regulation

There are some nuggets in the preamble to the regulation. The preamble to the regulation is not “law”, but it may be more authoritative than, for example, a policy memo. For that reason, it is helpful to point out the following:

1. The preamble contains the most definitive statement yet that USCIS believes that the termination of a regional center constitutes a material change for all investors in all projects in the regional center. I have long believed this to be incorrect, and I expect it will be subject to federal court challenge in the appropriate case.
2. The investor’s investment money can remain in escrow until the investor becomes a conditional resident. This is not new, but it is helpful to know that USCIS still takes this position.
3. “By fiscal year 2018, the number of petitions filed have fallen by more than half.” I certainly expect that I will be using this language in the mandamus complaints that we file in federal court since USCIS processing times have more than doubled while petition receipts have precipitously declined.
4. USCIS reiterates that an investor only must sustain her investment for the two-year period of conditional residence. I have always believed that this was the law; USCIS only recently adopted this position in a policy memo. The fact that it is now published in the Federal Register may give some investors and their counsel greater confidence in advising regarding whether an investor can be repaid after the two years.
5. An investor has the “right” to appeal a denial to the AAO. This is significant because it means that an appeal is a matter of right, and not mandatory. If it were mandatory, it would not be possible to file a declaratory judgment action in federal court without pursuing an AAO appeal. A declaratory judgment action in federal court is far more likely to obtain relief than an AAO appeal and to do so much more quickly.

One final thought. Many investors in China, and some in other countries, have pursued third country citizenship in a country with an investment treaty with the U.S. followed by an E-2 treaty investor visa application in order to obtain a 5-year extendable visa to the U.S. Some have done this to fill the gap until their place in the EB-5 quota line has been reached, and others have done it instead of EB-5. In the end, however, the combination of the investment to obtain third-country citizenship and the E-2 investment often came close to equaling – – or sometimes equaled or exceeded – – the $500,000 investment amount needed for EB-5.

After November 21, the gap between the investment required for E-2 purposes and the amount required for EB-5 purposes will be vastly different. The result will likely be a significant increase in E-2 applications. The E‑2 application would not preclude a subsequent EB-5 application. In fact, the amount of investment for E-2 purposes can be credited against the amount needed for EB-5. Also, the jobs created by the E-2 investment can be used for a subsequent direct EB-5 application. If this is a subject of interest, I would refer people to a webinar that I moderated on this subject on August 6. In addition, stay tuned for a webinar that our firm will be providing on this subject.

Hopefully, the reader will be able to apply some of these thoughts from outside of the four corners of the regulation in making decisions regarding EB-5 applications.

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