On February 26, 2014, USCIS held a stakeholder conference call for individuals interested in the EB-5 Program with Dan Renaud, Robert Cox and Nicolas Colucci. This was the first stakeholder conference call for the new EB-5 Program Director, Nicolas Colucci. Mr. Colucci highlighted a few suggestions for I-526 Petitions, which included ensuring each I-526 Petition is filed with an up-to-date TEA letter, providing line-by-line translations and clearly indicating on an I-526 Petition the applicant’s name, regional center identification number and new commercial enterprise name. Mr. Colucci stated that I-485 and I-829 Petitions will still be adjudicated at the California Service Center and I-526 and I-924 Petitions will be adjudicated at the Investor Program Office (IIPO) in Washington, D.C. Mr. Colucci is overseeing the transition of the EB-5 Program to the IIPO and warned there may be temporary slowdowns in processing times as new employees are on-boarded at the IIPO. The IIPO is looking to have a total of approximately 100 staff by end of the fiscal year, or September 30, 2014. However, Mr. Colucci anticipates reducing processing times after training new employees; and through this new training hopes to increase consistency across the board in adjudications.
A few of the highlights from the question and answer session included:
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ELIS System. USCIS is still implementing this system to ease filing of I-526 Petitions.
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Customer Service. Mr. Colucci stressed USCIS is looking to decrease processing times.
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Regional Center Geographic Scope. USCIS stated that expansions of the geographic scope of a regional center should be to areas which are contiguous to the current approved regional center area. However, USCIS did not define “contiguous” and it is still ambiguous whether this is contiguous counties or contiguous metropolitan areas.
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Collections of TEAs. Multiple TEAs are allowed so long as i) the job creating enterprise(s) are principally doing business in that TEA and ii) the job creating enterprise(s) are located within the regional center’s geographic scope.
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Sale of Regional Centers. USCIS stated that a sale of an existing regional center entity is “not prohibited.” However, USCIS must be notified within 30 days of such sale, which would most likely be done through a filing of Form I-924A. Further, USCIS may request an amendment to the regional center designation.
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Job Creation Credit for Guest Expenditures in Hotel Developments. USCIS stated these are permissible so long as the underlying market and economic statistics supports inclusion. USCIS noted that this credit for guest expenditures will typically occur where a project is unique to a certain area and is therefore drawing new demand to that area, rather than cannibalizing existing demand. Examples of this include a budget hotel where none exists, a 5 star hotel where none exists, a long-term stay hotel where none exists or a hotel which was built to serve a new entertainment/sports venue.
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I-829 Petition Evidence. USCIS stated the type of evidence necessary for an I-829 Petition will be driven by how the economic calculations were done at the I-526 Petition stage. For instance, if at the I-526 Petition stage job creation was calculated using revenues of a project, evidence of those revenues would need to be proven at the I-829 Petition stage.
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Bridge Financing. USCIS reiterated that bridge financing is permissible so long as the financing to be replaced by EB-5 funds was contemplated as short-term bridge financing. It is of note that the initial bridge financing does not have to be procured with the plan to have EB-5 funds replace such initial bridge financing, merely that the initial bridge financing was procured in contemplated of long-term financing replacing such initial bridge financing.
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TEAs Filed with I-924 Applications. TEAs do not need to be filed with an I-924 Application, so long as the I-924 Application contains underlying evidence supporting that a TEA determination may eventually be issued.
Overall, the conference call was very productive and USCIS was very responsive to some of the questions and concerns held by EB-5 stakeholders. It was interesting to note that the newly nominated USCIS Chief Leon Rodriguez was not present. Furthermore, a representative of the Financial Industry Regulatory Authority (FINRA) was on the call and requested clarification regarding the definition of “at risk.” FINRA is the largest independent securities regulator in the U.S. and their chief role is to protect investors by maintaining fairness in U.S. capital markets. The participation of a FINRA representative as a stakeholder is a positive sign for the future of the EB-5 Program.
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