On March 03, 2017, USCIS IPO held a stakeholder engagement meeting featuring IPO Chief Nicholas Colucci, Deputy Chief Julia Harrison, and Policy and Performance Division Chief Lori MacKenzie. The USCIS representatives would not discuss the recently proposed program changes (“EB-5 Immigrant Investor Program Modernization”), a new regulation which was announced in a Notice of Proposed Rule-making on 01/13/2017. The comment period for that proposed rule ends 04/11/2017.
For EB-5 investors, the main issues of note were:
1. IPO’s efforts to increase staffing, improve processing times, and heighten I-829 petition scrutiny; and,
Chief Colucci stated that IPO currently has 157 employees, and aims to increase that number to 247 this year. These staffing increases will include new economists, a new division which will focus exclusively on I-829 adjudications, the expansion of the compliance unit (which will begin conducting audits of Regional Centers), and the expansion of the operations office (which conducts site visits to NCEs). IPO will also be expanding I-829 interviews. These initiatives make clear that while the IPO is looking to reduce petition backlogs it is also going to heavily scrutinize I-829 petitions going forward, which will have the result that the historically high approval rates for I-829s will go down.
2. Lori MacKenzie’s statement that nothing in the proposed rule-making mentions retroactivity (a statement made notwithstanding the disclaimer that any comments during this even are not considered part of the official rule-making process).
Even though the representatives would not speak responsively to questions about the proposed regulations, Lori MacKenzie did say that nothing in the regulations mentions retroactivity with regard to already filed EB-5 petitions. While a disclaimer was read right after this statement, which stated that the comments were not an official part of the rule-making process, her non-retroactivity comment is notable because there have been several proposals in Congress that would apply changes retroactively.
GMLG will be publishing public comments to USCIS as part of the rule-making process. Those comments will, in part, address aspects of the proposed rule-making which could be interpreted as applying retroactively. Pending clarification on those issues by the IPO, it is encouraging to hear from Ms. MacKenzie that the regulations do not have retroactive application.
The announcements by the IPO at the Stakeholder meeting also reinforce the need for investors to retain experienced EB-5 attorneys who monitor ongoing changes announced by the IPO and Congress. With more scrutinized I-829 petitions clearly on the way (and I-526 denial rates already high), EB-5 investors should demand that their attorneys are responsive to client concerns about such issues and that those attorneys are prepared to see their EB-5 process through from the filing of the I-526 petition to the approval of the I-829 petition.