Following numerous revisions and opportunities for public comment, on May 30, 2013, U.S. Citizenship and Immigration Services (USCIS) released a Policy Memorandum for all USCIS employees regarding EB-5 adjudications. In an effort to make the EB-5 investment process more business and investment “friendly,” the Policy Memorandum contains important clarifications and policy changes for EB-5 regional centers and investors, including the following: USCIS reemphasizes that USCIS examiners should adhere to a “preponderance of evidence” standard of proof (a “more likely than not” standard) throughout the EB-5 petition and application adjudication process;
USCIS examiners should give deference to previous USCIS decisions in order to ensure greater predictability with the EB-5 process;
Indirect jobs can be created outside of the regional center boundaries under the right circumstances;
EB-5 investor funds can be used to pay off bridge financing under the right circumstances;
USCIS defers to state determinations of the appropriate boundaries of geographic or political subdivisions that constitute the targeted employment area;
Regional centers may sponsor projects in industries other than those with approved industry (NAICS) codes; and
A material change after an approval of a Form I-526 application is not in itself a basis to deny a Form I-829 application.
Perhaps the most important change was the concept that a regional center no longer needs to be approved for a proposed project's geographic area or NAICS codes prior to an EB-5 investor filing a Form I-526 application. However, caution should govern a regional center's actions as it is expected that USCIS will continue to require contiguous geographic proximity for projects outside the regional center boundaries.
The Policy Memorandum is binding on all USCIS employees.
The full text of the Policy Memorandum can be found here.
For more information about the EB-5 program in general, please see our September 29, 2011 Update.