Nicolas Colucci, the new USCIS EB-5 director, announced on the USCIS stakeholder call held February 26, 2014, his plans to improve the basic EB-5 program during fiscal year 2014-2015. The process will begin by hiring 100 new employees dedicated to the program, most of whom will be adjudicators.

A very ambitious training platform is being designed to make new adjudicators proficient with the basics in five weeks. In my view, it is impossible to teach enough information to properly decide EB-5 petitions in such a short time. Mistakes in adjudications are likely to increase dramatically as the new officers begin work.

The stated goal of reducing backlogs with the increase in staffing may initially prove illusory, since moving cases forward is not the same as meaningful review. And we have been hearing this for a long time as adjudications have slowed down.

The Office of Policy and Strategy is preparing a manual which, among other things, will consolidate all memoranda and adjudicator’s field manuals (AFMs) in one document. I will request a copy.

Updates

• As of Feb. 14, new regional center I-924 applications and amendments, and all investor I-526s, will be adjudicated in Washington, DC. Removal of conditional resident status (I-829) and adjustment of status (I-485) applications will still be handled in California.
• There are 53 immigrant investor program officers in Washington – 20 economists and 20 adjudicators – 80% with advanced degrees and 20 with law degrees.
• Average processing times as of January 21, 2014: I-526 – 11 months; I-924 – 12 months; I-829 – 11 months. [This is much different than the posted times on the USCIS webpage.]
• Statistics of last fiscal year 2013: I-924s – 300 pending; I-526s – 5,018 pending; I-829s – 1,013 pending. The I-526 denial rate doubled what it has been in past years, and in FY2013 was 23%.

The I-526 denial rate is hard to gauge. Are most due to denied projects (which do not satisfy the USCIS criteria), or due to source of funds, or other reasons? The USCIS did not elaborate.

Clarifications

The USCIS discussed a number of substantive topics, including reading and discussing some of the questions Estelle and I posed to USCIS in writing before the call. They elaborated on the differences in the level of approval a regional center project may be granted. Here is what they explained:

• Hypothetical: the regional center charter with a territory is granted, as well as industry codes, but no deference at all will be given to the project.
• Actual: the regional center charter with a territory is granted, as well as industry codes, and deference will be given to the business plan (if Matter of Ho compliant) and economic impact report (EIR).
• Exemplar: the regional center charter with a territory is granted, as well as industry codes, and total deference will be given for the business plan, EIR and project, which requires all project documents be submitted, including investment instruments, for USCIS to approve an I-526 (which will be filed with proof each person’s investment has been made, and the source and path of funds).

“Deference” means the matter will not be re-adjudicated absent mistake, misrepresentation or material changes. Some, myself included, are skeptical of whether deference will be given to subsequent filings.

More about the stakeholder call will follow next week.