Yesterday, USCIS held a webinar on the revised Form I-924 Application for Regional Center Under the Immigrant Investor Program. It coincides with the April 10, 2017 update on USCIS’ webpage for the revised Form I-526, Immigrant Petition by Alien Entrepreneur. Here are five things to know about USCIS’ new EB-5 Form I-526 and Form I-924.
- Requesting Change to Regional Center Geographic Area. During yesterday’s webinar, an Immigrant Investor Program Office (“IPO”) employee was tragically required to recite the new Form I-924 while the audience waited to hear the most pressing issue: Whether USCIS would permit the filing of a Form I-526 for an EB-5 project located in a proposed expanded geography for a Regional Center without a formal I-924 amendment to the Regional Center’s designation, as authorized in the EB-5 Adjudications Policy dated May 30, 2013, or would USCIS require the approval of a formal I-924 amendment prior to the filing of Form I-526 petitions, as inconspicuously indicated in the updated Form I-924 instructions and discussed at the March 3, 2017 stakeholder engagement.
The EB-5 community was directed to Remarks by IPO Division Chief Lori MacKenzie, and to an Update to EB-5 National Stakeholder Engagement Remarks, which state:
- Where the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or Form I-526 petition filed prior to February 22, 2017 (the date on which use of the new Form I-924 became mandatory), and the request is ultimately approved, USCIS will continue to adjudicate additional Form I-526 petitions associated with investments in that area under the guidance reflected in the May 30, 2013 policy memo.
- Any requests for geographic area expansion made on or after February 22, 2017 will be adjudicated under the current guidance; namely, a Form I-924 amendment must be filed, and approved, to expand the regional center’s geographic area.
- For geographic area expansion requests made on or after February 22, 2017, the Form I-924 amendment must be approved before an I-526 petitioner may demonstrate eligibility at the time of filing his or her petition based on an investment in the expanded area. Form I-526 petitioners who believe they may be unable to demonstrate eligibility at the time of filing on this basis may wish to contact USCIS at firstname.lastname@example.org.
Thus, the new deadline for I-526s filed pursuant to the guidance found in the May 2013 EB-5 Adjudication is February 22, 2017, not December 23, 2016. USCIS’ new policy may trigger more use of early release mechanisms in escrow agreements or other manners to ensure that U.S. proposed job creation activities are not stopped because of EB-5 adjudications.
- Processing Procedures for I-924 Exemplar Filings v. I-924 Hypothetical Filings. USCIS indicated that it will adjudicate Form I-924 amendments in a separate queue from Form I-924 initial designation requests. USCIS declined to answer a question on whether it would have different processing procedures for adjudicating Form I-924s with an Exemplar and for adjudicating Form I-924s with hypothetical projects. USCIS’ long adjudications of the Form I-924, which is currently over 18 months, will become even more frustrating because of USCIS’ new policy mentioned in #1 above. We hope USCIS continues to prioritize expanding the capacity of its Form I-924 adjudication teams to reduce the amount of time for Regional Centers to successfully promote its projects and for EB-5 investors to file their Form I-526s.
- Additional Documentary Evidence of Regional Center Functions for an I-924 Exemplar Required?. Questions 40-43 on the revised Form I-924 require Regional Centers to provide information and documentation related to administration, oversight, and management functions; promotional activities; and a plan of operation. For a Regional Center filing a Form I-924 Exemplar, it is possible that these functions and plans have not changed since the initial Regional Center designation filing. However, it could be time for Regional Center principals to update USCIS on how it uses industry “best practices.”
- Mandatory Filing Dates. The revised Form I-924 became mandatory to use for filings on February 22, 2017. The revised Form I-526 will become mandatory for use for filings as of June 9, 2017.
- “Upward Adjustment Area” in New Form I-526. Question 7 in Part 2 of the revised Form I-526 states, for some reason, “This petition is based on an investment in an area for which the required investment amount has been adjusted upward.” Is that even a thing?