On April 25, 2023, U.S. Citizenship and Immigration Services (USCIS) hosted a stakeholder engagement regarding the EB-5 Program. It was originally scheduled for March 20, 2023, but was postponed for an undisclosed reason.
USCIS planned three discussion topics for this engagement: direct and third-party promoters, the investment period (including sustainment period), and regional center operations, most of which were not discussed. In general, the discussion lacked detailed direction on critical items introduced by the EB-5 Reform and Integrity Act (also known as the RIA) and officers mostly read their responses to pre-submitted questions. The engagement included the following items:
- Certain information on who should file Form I-956K (Registration for Direct and Third-Party Promoters): Our understanding was that USCIS desires that the person or entity entering into the written agreement with the new commercial enterprise or regional center who is involved in the selling and marketing of the security must file this form. In addition, certain employees of the third-party promoter or migration agent are also required to file this form. This would include executives or officers of the promoting parties but exclude the staff personnel that are merely performing administrative services and not directly dealing with the selling or marketing activities.
- Ongoing Payments and Form I-956K Filing: USCIS noted that the filing of the Form I-956K is based on the promotion of the project. If such a project is no longer being promoted, even if compensation to agents and promoters is ongoing, these agents and promoters do not need to register based on those older projects.
- Promoter Registrar: USCIS noted that it will publish a list of agents and promoters registered through Form I-956K on their website in the future.
- Sustainment Period: USCIS also noted that an EB-5 investor’s capital must be at risk and remain invested during the two-year period of conditional residences for those investors who filed their I-526 petitions before the passage of the RIA. USCIS did not comment on the “at risk” requirements for investors who filed their I-526E petitions after the passage of the RIA and indicated that they are still reviewing the matter.
- Form I-526E Filing: USCIS indicated that no project documents should be contained in the I-526E petitions in order not to confuse and overwhelm examiners, as the complete project documents must be included in Form I-956F (Application for Approval of an Investment in a Commercial Enterprise).
- Regional Center Termination: USCIS confirmed that if a regional center is terminated, USCIS will notify all investors with a pending Form I-526 or Form I-526E.
- Integrity Fees: The USCIS officer confirmed in answer to a question that all regional centers must pay the integrity fee in order to remain in good standing.
Although these points demonstrate USCIS’ interpretation on certain topics, none of these topics are memorialized as part of a policy memo or other written announcement. Given USCIS also confirmed that no transcript or talking points would be provided for this engagement session, it is still ambiguous how EB-5 stakeholders are expected to act purely based on these comments. We look forward to further clarification by USCIS.
This article is meant for informational purposes only. The information presented is not legal advice, is not to be acted on as such, may not be current, and is subject to change without notice. The author or Golden Gate Global do not guarantee the accuracy of information. Please consult a licensed professional prior to making investment decisions.
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