USCIS Request for Public Input on Reducing Administrative Barriers

by Carolyn Lee

May 19, 2021

Carolyn Lee Provides Feedback to Improved EB-5 Processing

On May 3, 2021, Carolyn Lee PLLC Principal and Founder, Carolyn Lee submitted the following comments to USCIS opining on how the service may reduce administrative and other barriers and burdens within its regulations and policies, including those that prevent foreign citizens from easily obtaining access to immigration services and benefits. Comments are accepted by anyone and may be submitted through the Federal eRulemaking Portal. The deadline for submitting comments is Wednesday, May 19, 2021 before midnight.

May 3, 2021

Comment submitted through the Federal eRulemaking Portal:

Re: Request for Public Input
Docket Number USCIS-2021-0004
Federal Register Number 2021-07987 (86 FR 20398)
Comment submitted regarding USCIS EB-5 Adjudication

To Whom It May Concern:

The foregoing is submitted in response to the request for comments on how U.S. Citizenship and Immigration Services (USCIS) can reduce administrative and other barriers and burdens within its regulations. I applaud these efforts to seek information that will help the U.S. Department of Homeland Security (DHS) identify process improvements for USCIS, with benefits for state, local, and tribal governments, for businesses of all sizes and individuals, particularly as these benefits stem from EB-5 capital and job creation.

By way of background, I am an immigration attorney dedicated to investment immigration. I have practiced EB-5 law for the better part of the last 19 years and served four terms as the Chair of the American Immigration Lawyers Association (AILA) National EB-5 Committee and two additional terms as Vice-Chair. I currently serve as the Legislative Counsel to Invest in the USA (IIUSA). I have represented numerous regional centers, new commercial enterprises, developers, and EB-5 investors from all over the world. Accordingly, these comments are offered based on experience.

USCIS can reduce administrative and other barriers and burdens within its regulations by engaging in rulemaking to achieve the following:

1. Improve processing times. Current processing timeframes for Form I-924 (regional center initial designations and amendments) are reported at 35-38 months and Form I-526 petitions are reported at a staggering 27-57.5 months. These timeframes are inconsistent with vastly diminished incoming caseload and prior years’ Immigrant Investor Program Office (IPO) output. Aside from the unreasonable delay of the immigration benefit itself, USCIS’s “material change” policy, together with protracted processing times, puts projects and petition eligibility at greater risk. Rational and reasonable timeframes are needed in EB-5 adjudications.

Introducing premium processing in one way to address delays, though, does not address systemic delays. Suggestions for systemic improvements cannot be offered because stakeholders do not have enough information about IPO processes. We are provided with published data regarding the number of cases receipted, approved, denied, and pending, but this data merely confirms that the current process is grossly inefficient. For informed feedback regarding systemic improvements, I recommend transparent sharing of IPO processes with stakeholders.

2. Execute “visa availability approach” processing protocol. In March 2020, USCIS announced it would prioritize non-visa backlogged EB-5 petitions to optimize visa usage. It is not apparent from any available data that the visa availability approach has been put into action. This processing protocol should be put in place immediately to optimize visa usage, particularly as precious visa numbers are poised to be wasted again in the EB-5 preference category this fiscal year due to continued COVID-related consular closures.

3. Resume meaningful stakeholder meetings. Public stakeholder meetings have been irregular and infrequent in recent past years and lacking in meaningful exchange. While public meetings serve a purpose, venues for meaningful exchanges on complex adjudication issues should be available as well. “Conversations with the Director” under the Obama Administration serve as a precedent for transparent and meaningful exchange with the public and industry experts on EB-5 adjudication issues. These meetings were both accessible to the public and substantive. Meetings like these should be reinstated by the Office of Public Engagement alongside other stakeholder meetings of a more general nature.

4. Build EB-5 subject matter expertise within IPO. When compared with the subject matter experts at sister agencies like the Securities and Exchange Commission, IPO lacks a comparable level of substantive expertise. As has often been stated by USCIS officials, EB-5 is a highly complex area within U.S. immigration law. As such, it is of paramount importance that the public and industry experts find IPO to be reliable and authoritative. To reach this goal, IPO must have steady, confident, respected, and durable leadership. Examiners must be given thorough training in the nuances of relevant authority and build competence in navigating complex business structures. Leadership personnel with industry experience and subject matter expertise should be available within IPO to foster consistent and quality adjudications. This must be viewed as a priority long-term objective.

5. Promulgate policy changes with due notice. Substantive USCIS Policy Manual changes in the EB-5 area have been labeled “updates” and made effective retroactively without notice. The July 2020 redeployment policy change, under which a new geographic limit to redeployment was imposed on pending investor petitions without notice, exemplifies these due process flaws. Large-scale commercial transactions typical in EB-5 cannot be unwound immediately and can seldom be unwound retroactively. Subjecting long-pending EB-5 cases to denial risk based on retroactive new policy with no practical cure is administrative agency action at its rock bottom. The Biden Administration should not tolerate these breaches of due process and we expect it would not.

In short, improvements to USCIS adjudications of EB-5 cases can be achieved by elevating notice, transparency, and competence. These improvements should drive greater efficiency shown by improved processing times and consistent, predictable adjudications.

The EB-5 Program serves the U.S. economy by bringing capital and job creation into our communities. It also invites the world’s most successful families to become a part of the American fabric. It is a program in which those of us involved, in both the private sector and in the Administration, can take great pride. Thank you for the opportunity to express concerns offered in the spirit of building an Immigrant Investor Program Office realizing the EB-5 Program’s full potential.

Yours Truly,

Carolyn Lee

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