Recent Updates (including When Will Premium Processing Be Introduced?)

On January 11, 2012, the USCIS sent out a redline version of its new EB-5 policy memo. The redline shows changes against a draft of a new EB-5 policy memo that was released for comments a few weeks back. The changes to the draft, as well as a number of other issues, were discussed in a small group setting with Director Mayorkas in Washington, D.C. with interested parties dialing in. (But unlike quarterly stakeholder meetings, those not present at the meetings were not allowed to ask questions.)

Much was discussed on the call including new language in the redline that indicated that the USCIS was reviewing the possibility of allowing something similar to a fund model where investors can share jobs created by multiple businesses and thereby spread the risk. But it was apparent that there was still a lot of confusion internally about the specifics of how that model would work and, to be clear, this is not a "blind pool" or "private-equity" model that many people ask me about. (Meaning an RC will pool funds to invest in job creating enterprises that are identified after the funds have been pooled.) The EB-5 regulations require that the job creating entity be identified for at the I-526 business plan phase.

There was a little bit of discussion regarding when Premium Processing will be introduced. One could tell that the USCIS wasn't against the idea, but they could not give a firm time frame given the current backlog in processing caused by a surge in applications in recent years and lack of personnel. In addition, the USCIS has previously announced that even if/when Premium Processing is introduced, it would start with shovel-ready I-924s (Regional Center applications with ready to go projects). In short, investors shouldn't be holding their breath, waiting for Premium Processing to happen.