When an EB-5 application lacks sufficient evidence or lacks satisfactory documentation of the investment, a USCIS adjudicator may issue an RFE (Request for Evidence), giving an opportunity to clarify or provide additional evidence.
The investor has a standard response time of about 90 days. If the application lacks a significant amount of evidence, the adjudicator may instead issue a NOID (Notice of Intent to Deny), though these are more commonly issued in response to an unsatisfactory RFE response. The investor typically has 33 days or less to respond to a NOID.
It is important to recognize that if a project or the investor receives an RFE or NOID, it does not mean that the petition was filed incorrectly. Every application is different, and each adjudicator uses their own discernment in determining what constitutes “sufficient evidence.” MSA has vast experience responding to RFEs and NOIDs for projects with complex financing models and corporate structures, as well as investors with difficult sources of funds.
USCIS requires all regional centers to be properly approved and comply with annual filing of the I-924a form, which evidences the ongoing economic growth promotion and activity of the regional center and its project(s).
The Service will issue a Notice of Intent to Terminate (NOIT) a regional center’s participation in the Immigrant Investor Program if the regional center either fails to submit required information to USCIS or no longer serves the purpose of promoting economic growth.
The EB-5 investment visa may be an employment-based immigration category for permanent residence in the US, but it has long traversed far out of the realm of simple immigration.
It has become a route for alternative financing, with billions of dollars being invested into the US in major projects all over the country. Redeployment occurs when the investment capital, having been returned to the developer, is re-invested in another project because the funds cannot be returned to an investor who has only just received adjudication of their I-526 petitions without obtaining their conditional green cards. According to USCIS, even though the investors have fulfilled the requirements for a conditional (and permanent) green card, their money must now be put at risk again.
However, is it a delicate and complex action to redeploy EB-5 investment funds, particularly because there is no reference in the statute, regulations or precedent decisions that requires the capital to be at risk after the jobs have been created and certainly not at the I-829 stage.
In the world of EB-5, your visa application will be adjudicated by your priority date, which is included on your receipt notice from USICS and indicates when you might receive your visa.
Unfortunately, priority dates are subject to change based on a variety of circumstances and for many countries, an investor’s visa application has or will “retrogress” or move backward.
For countries like China, this is due to the overwhelming number of investors and the lack of a sufficient number of visas. However, USCIS has announced a re-prioritization of the EB-5 processing method and legislation on the horizon may also have an effect on the level of retrogression certain countries are now suffering.
With the growing concern about the recent surge of adjudication delays, particularly after a finding that in a year-over-year comparison, the estimated I-526 processing time in May 2019 almost doubled from May 2018, investors are looking to litigation as a way to urge faster adjudication. Under the Administrative Procedure Act, the government must consider the necessity and convenience of the petitioning party in determining adjudication times.
As such, attorneys can make a strong case by explaining why it’s important to their client to get a speedy decision. In the current climate, litigation has become a necessary part of doing business in the EB-5 program. Legal action seems to be the only way to hold USCIS in check and compel the agency to make better, faster decisions.