In a welcome bit of news for the EB-5 industry, USCIS released updated processing times dated as of April 30, 2014 which show USCIS is processing I-924 applications in approximately 4.4 months. Earlier this year, the processing of I-924 applications was moved to the new Immigrant Investor Program Office (IIPO) in Washington D.C. The new EB-5 Program Director Nicholas Colucci oversaw this transition and, during the February 2014 USCIS EB-5 Public Engagement, expressed optimism that the move to the IIPO and ramp-up of new staff at the IIPO would lead to shorter processing times. This new announcement by USCIS appears to be the fruits of that labor by Mr. Colucci and the IIPO and is significantly less than the most recent processing time reports, which pegged the I-924 application processing time at approximately 12 months.

Mr. Colucci’s stated goal was to eventually have up to 100 or more staff working at the IIPO processing I-526 Petitions and I-924 applications. Unfortunately, I-526 Petitions processing times are still beyond the USCIS at approximately 12.4 months. However, the I-924 application processing time is a positive for the EB-5 industry, as the proliferation of regional centers (there are now approximately 524 approved regional centers across the U.S.) will allow more communities to take advantage of the job creation benefits the EB-5 Program offers and investors will have greater choice when making investments.

Lastly, a note of caution, USCIS has been approving many regional centers (and thereby reducing the I-924 application processing time) by approving regional centers with their accompanying projects as “hypothetical projects.” USCIS will grant a hypothetical approval when “general predictions” have been demonstrated in the I-924 application that job creation will result from the hypothetical project’s business plan. The documentation required and the standard of proof to receive a hypothetical approval is substantially lower than the documentation required and the standard of proof to receive I-526 Petition approval and an exemplar approval of an I-924 application. For example, USCIS will mainly review the business plan and economic report for a hypothetical project in an I-924 application but will not review all the ancillary documents, such as the offering, feasibility studies, permits, and project contracts. It is important to note that a hypothetical approval by definition does not contain a business plan which complies with the requirements of Matter of Ho.

A hypothetical approval is very different from an I-924 application based on an “actual project,” which results in an actual approval will include a review of the offering documents, business plan, economic report and other ancillary documents which demonstrate the project is “shovel-ready.” This type of approval is important because USCIS will deem the business plan Matter of Ho compliant and give deference to the approval in future decisions regarding that project (i.e. I-526 Petitions associated with the project). An exemplar I-924 approval is the most document-intensive because, if approved, USCIS will pre-approve the project and all its ancillary documentation. Accordingly, when an I-924 application project is approved as an exemplar, I-526 Petitions associated with the project will receive deference to all project materials and USCIS will only review an investor’s source of funds. While this doesn’t always happen, it does provide a marketing advantage for the project.

Therefore, many newly approved regional centers should not rely on the documentation they provided in an I-924 application approved by USCIS as a hypothetical because it may not be approvable when contained within an I-526 Petition.