EB-5 changes to the Regional Center Program

The Department of Homeland Security (DHS) is considering  EB-5 changes to the Immigrant Investor Regional Center Program. Based on decades of experience operating the program, DHS has determined that program changes are needed to better reflect business realities for regional centers and EB-5 immigrant investors, to increase predictability and transparency in the adjudication process for stakeholders, to improve operational efficiency for the agency, and to enhance program integrity. This Advance Notice of Proposed Rulemaking (ANPRM) is organized to include requests for comment immediately following discussions of the issues.
The former Immigration and Naturalization Service last promulgated comprehensive regulations implementing the EB-5 Regional Center Program in 1993. 58 FR 44606. Although Congress has revised the program multiple times since, see Public Law 106-396, 114 Stat. 1637; Public Law 107-273, 116 Stat. 1758 (2002 statutory amendments), the regulations have not been updated to conform to the statutory changes. Neither have the regulations been amended to make improvements to the program based on the Department’s experience implementing the program for the last 25 years.

Proposed EB-5 Changes

DHS is considering changes to the Regional Center Program regarding the requirements for initial designation and continued participation, a potential requirement for regional centers to utilize an exemplar process, and the grounds for terminating regional center designation.

EB-5 changes for Initial Designation and Exemplar Approval

DHS is considering ways to improve the process associated with the initial designation of regional centers and approving “exemplar” projects. An entity applying for initial designation as a regional center may choose whether to present a hypothetical project, an actual project, or an exemplar project with their Application For Regional Center Under the Immigrant Investor Program (Form I-924 application). A request for review of a hypothetical project should be supported by general proposals and general predictions showing that the proposed regional center will more likely promote economic growth and job creation. Organizational and transactional supporting documents are not required for a hypothetical project. Previous determinations based on hypothetical projects will not receive deference in the adjudication of later filings. If the entity includes an actual or exemplar project proposal with its Form I-924 application, USCIS determines, as part of the Form I-924 adjudication, whether USCIS will accord deference to its approval of that project when USCIS later reviews investor petitions associated with the same regional center and based on the same project. A request for review of an actual project requires a comprehensive and credible business plan that describes the business and verifiable detail on how jobs will be created. Organizational and transactional supporting documents for the new commercial enterprise are not required for an actual project. Deference generally will be accorded to prior approval of the business plan and economic analysis in later filings related to an approved actual project. A request for review of an exemplar project comprises a sample Form I-526 petition filed with a proposed actual project containing copies of the new commercial enterprise’s organizational and transactional documents. USCIS reviews exemplars to determine if they comply with established EB-5 eligibility requirements. If the exemplar project is approved, the determination generally is accorded deference in subsequent related Form I-526 and Form I-829 filings.
“Deference may also be accorded to the approval of a regional center investor’s Form I-526 or Form I-829 petition in the adjudication of related Form I-526 and Form I-829 petitions based upon an investment in the same investment project with the same project documents. Investors may submit evidence of association with an exemplar project before or while the regional center’s exemplar is pending with USCIS, or after the exemplar is approved.”
DHS believes that the existing process presents two problems. First, the adjudication of initial applications for regional center designation become much more complex when entities seeking such designation “bundle” their initial applications with actual or exemplar projects. Under the current process, regional centers often include a host of documents related to actual or exemplar projects with their Form I-924 applications, including project proposals and related organization and transactional documents, such as private placement memoranda, subscription agreements, operating and partnership agreements, and other information. USCIS must review all such documents submitted with Form I-924 applications, even though the information in such documents is frequently unrelated to adjudication of the regional center designation (i.e., determining whether to designate the applying entities as regional centers). Second, by allowing regional centers to choose whether to submit an exemplar project, USCIS effectively let’s those entities determine the level of workload for the agency related to each EB-5 project. When a regional center submits an exemplar proposal, USCIS must only assess the project once at an initial stage. Any issues related to project approval are considered and resolved at this initial stage making individual immigrant investor petitions submitted under that project simpler to adjudicate. When a regional center does not use the exemplar process, USCIS is presented with the project proposal multiple times, including with each individual immigrant investor petition submitted under that project. At this stage, issues related to project approval often require USCIS to issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) to each individual petitioner investing in that project. This presents a significant burden on the agency and each individual petitioner, and delays the adjudication of their petitions.