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In today’s Conversation with Director Mayorkas, the Director skillfully managed an open conversation with prominent EB-5 stakeholders. We were given more detail about the proposed new EB-5 program office and potential improvements to EB-5 adjudications, and overheard a variety of legal opinions about the requirement to create jobs “within a reasonable period of time.” Not one solid point relevant to us today came out of this meeting — unless you believe in words like “soon” and “shortly” and “we’ll follow up” and “we’re looking at that.” I was waiting to hear about the revised EB-5 policy memo, promised “soon” since September 2011, and specifically promised for this meeting at the last stakeholder meeting. But no, there is no revised memo yet, and the Director couldn’t say when we will get one. I was waiting for a statement on tenant occupancy, promised “soon” repeatedly since January 2012, and specifically promised for this meeting at the last stakeholder meeting. But no, the Director had no further guidance to offer on this issue, could not say when the many applications currently held up pending decisions on this issue will start to move, and could not comment on USCIS’s off-record settlement conference with a group of American Life investors who sued in Federal court over this issue. I was hoping for clarification/confirmation on I-924 amendment questions that arose from the last stakeholder meeting (whether an amendment may not be needed to add a new economic methodology, and whether amendments cause I-526 to be put on hold), but the Director was not prepared to get back to the community on those issues either. The bottom line seems to be that we’re still looking at an indefinite period of continuing to guess about USCIS policies, an indefinite continued wait for applications on hold, and an indefinite period of staffing transition for the EB-5 team at USCIS. But the future will be oh so much better, when it arrives! With expert reviews and 90-120 day processing times and articulated policies and transparency all around! Soon and very soon! The ideals and intentions are beautiful — and sincere, I believe. Director Mayorkas expresses strong commitment to EB-5, and USCIS is preparing to invest considerable resources in the proposed new program office. But for now, no news is no news. ================================= Q & As:Q: What is the settlement on the Carlsson federal lawsuit? Seems as if the questioner is under assumption that the case has settled, which probably is not true, because a settlement conference is held even when there will be no settlement.A: Mayorkas is not familiar with the case. Will make a public statement if USCIS feels it's important enough. Q: Will we be not submitting EB-5 cases anymore to CSC? How about EB-5 cases already submitted?A: Must submit to CSC until further notice of formal announcement. 90 to 120 days adjudication time is ambitious. Expertise of the new EB-5 Office will benefit. Q: Will the Review Board for I-924 be housed in the new EB-5 Office?A: The EB-5 Office will communicate with the Review Board. Emails rather than RFEs will be used, because RFE takes too long. Q: Will you consider working closely with the cities which want to set up EB-5 projects regarding their ideas on the economic development.A: Not sure whether this area falls within USCIS ambit. [Comment: This question was too broad for this teleconference.] This may fall within the authority of Economics Plan and Policy. Q: Ira Kurzban: Shouldn't an oral argument be made a part of the EB-5 adjudication, because paper presentation may not be efficient. An oral presentation may be more effective. Moving just the location with the same adjudicators may not achieve all the goals.A: Couldn't agree with you more. May be a good idea. We want to first see what effect the direct communication, i.e., emails would have. The party shall be given an opportunity to respond. May move from emails to telephone calls, eventually. Q: Will the procedure be bifurcated for I-924s and petitions?A: No bifurcation. The new EB-5 Office will have the plenary responsibility over I-924s, I-526s and I-829s will be handled by the new EB-5 Office. Just I-485s will be decided at another office. Open to comments. Q: Is USCIS engaging the Commerce Dept?A: Yes. Q: We hope pending I-924s and applications will not be delayed longer due to the New EB-5 Office.A: Tenant occupancy issue will be addressed quickly. Q: Morrie Berez: USCIS' level of sophistication is increasing. One thought: NOID for different number of response days may be merited.A: If USCIS has a series of questions, one RFE should capture all questions, not a series of RFEs. Q: How about pending cases?A: Tenant-occupancy related cases is a priority. Q: Shouldn't sizes of EB-5 projects require different expertises? Shouldn't adjudicators be specialized?A: Not sure about sizes of the projects, but the specialization of knowledge may be more important. Q: Will policy related power reside with the new EB-5 Office?A: No, the Office of Policy & Strategy will make policies. Q: Will Premium Processing take place, or concurrent filing?A: No. On concurrent filing, not sure. Q: RFEs should not ask for all kinds of permits.A: Will read the Matter of Ho case again.Comment: Should focus on first reviewing the project qualifications and then individual investors' issues such as the lawful source for predictability and job creation. Reasonable period of time: [Our viewpoint on this issue is that some projects which may take over 5 years for all jobs to be created may not be the kinds of projects that were envisioned by the Congress. In other words, these types of projects which may not be able to create jobs within 2 years and within the reasonable time period thereafter, should NOT be able to use the EB-5 Program. Besides, if all kinds of projects were allowed to use the EB-5 Program, IV numbers for the EB-5 Program would have too-long priority waiting dates. USCIS seems to want to decide on a specific period of time, whereas stakeholders want to argue the reasonable period of time should take into all factors. For RC projected which are big projects which often have long construction time frame, I-526 does not require that jobs be created within 2 years. Q: When can capital be returned after jobs have been created?A: On-going redeployment may be allowed if the capital is still at risk. If the investor can get back the money, then maybe the "at risk" requirement is not being met. Q: When will the updated "overarching" guidance memo be published?A: Still working on it. Our take: Aside from the announcement of the new EB-5 Program Office to be located in Wash. D.C. (which announcement is probably 2 years late), this partly explains why I-526 cases have been pending for so long at CSC. CSC may simply be unmotivated to work on pending I-526 cases if their authority to adjudicate will soon be taken away. I will be interesting to see whether CSC is glad or unhappy about this move. USCIS has the right to decide that certain projects which create jobs too far into the future should not try to use the EB-5 Program. I doubt that USCIS is ready to accept the EB-5 projects which will create jobs 5 years into the future. I have a gut feeling that USCIS will just have a very hard time supporting the job-creation at some unknown future time. I rather like Ira Kurzban's proposal (which we proposed long time ago) that EB-5 investors should just be given an extension of CPR status until such time they demonstrate to USCIS that the jobs have been created. In short, all good talk and no action yet.

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