Monday, October 11, 2010

EB-5 Denials: Inglorious Projections

If there's been a recurring theme with EB-5 I-829 adjudications in 2010, it most certainly has to do with job creation numbers and deviations from planned business activity. While the USCIS has been historically liberal in excepting generous job rejections at the initial I-526 stage (i.e., the initial approval of conditional residency as an EB-5 regional center investor), 2010 has been characterized by challenges to such projections, considerable scrutiny of both direct and indirect job creation, and a close look at deviations from the original business plan.


Some of these problems have been made public but the majority remain invisible to those contemplating an EB5 Regional Center investment. One of the benefits of being a part of the very small EB-5 Regional Center community is that folks tend to send newsworthy items in my direction. Most often, it's a disgruntled investor who's been left high and dry by a denial; oftentimes it is a cryptic article published in a local newspaper and found by my search spiders. Occasionally, the bad news comes to me via another Regional Center hoping that I will write a blog about another RC's  notable problem.


One of the problems of being a part of the very small EB-5 Regional Center community is that it is, well... very small. In my view, it is irresponsible journalism to use a blog to broadcast unsubstantiated rumors. On the other hand, when a specific issue is burning up the Internet -- say Victorville -- it is irresponsible to not communicate this to my readers. Because so many of these unfavorable adjudications pertaining to job creation/business plan deviation issues arrive via private sources, and oftentimes involve outstanding attorneys whose RC client derailed the original pan, I will not publish specifics.  Bad things are happening to some very good EB-5 attorneys through no fault of their own, and that's not something I'm interested in relaying.


One thing I can tell you is this: it is evident yet again that the decision to consolidate EB-5 processing at Laguna Niguel was a wise decision for the USCIS. These new denials are clearly distinguishable from the denials of the late 90s and early 2000s in that they demonstrate considerable domain expertise by the USCIS EB-5 adjudication team. The addition of professional economists to the team and growing sophistication of the part of the adjudicators is making for some pretty incisive adjudications… and that’s usually bad news for the regional centers involved. There are a lot of investors in the pipeline between an easy I-526 approval and ad upcoming I-829 filings. For those who invested with masters of consistency – such as the inimitable CMB – there have been no changes in business plans or activity. For many others, especially in the construction and development sector, an erratic economy has triggered VERY "material changes" in the original business plan, meaning that things at the 829 level look pretty different than they did 2 years ago.


If that sounds like your Regional Center, your proactive involvement in insuring that changes have been communicated to and approved by the USCIS before you file your I-829 is absolutely critical if it's permanent residency you seek.



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