Thoughts on Proposed Changes to the EB-5 Visa Program

In response to a request for comment, attorney Brandon Meyer submitted the following statements to EB5info:

My thoughts about the points Bernie Wolfsdorf outlines in general and the "proposed changes" to EB-5 are as follows:

• Although premium processing and shovel ready sound great in theory, I predict that the number of projects that will be able to take advantage of this from the beginning of their project are very small. That is because many project operators do not have their own capital sufficient to make their project "shovel ready." They can only do anything with EB-5 capital. Other projects are so large that the timeline would not allow for positioning as shovel ready; this ties back to the first point. Other projects just won't care.
• The devil is in the details. Look for USCIS, when faced with an initial barrage of premium processing applications, to look for creative ways to slow the process down and otherwise stumble their way through with trial and error. The Request for Evidence will be USCIS' primary defensive weapon, and look for it to be deployed with great frequency and alacrity on day 14 of a filing (the "Day-14 RFE phenomenon").
• Much of USCIS' "commitment to job creation" can best be described as a day late and a dollar short. Others might describe it as hot air and BS. Take the much-heralded announcements in early August about encouraging job creation by "allowing" alien entrepreneurs to use H-1B visas and the National Interest Waiver. A closer reading of the actual details signifies zero, absolutely none, no, no change in policy. As one prominent AILA attorney stated to me rather sarcastically, "Oh, I never know entrepreneurs couldn't get National Interest Waivers? I've only done a hundred of these!" This largely fits with the Obama Administration's preference for form over substance.
• Like the beer commercial from the 1980's, EB-5 premium processing will likely become a "tastes great, less filling" proposition, largely because nobody at USCIS thought through the true implications of such a policy before announcing the intended program. The reality check it has received through public comment is probably the reason why the ultimate announcement has been piecemeal and delayed.

This time next year, we will look back at this like a Shakespeare play: "Much ado about nothing."

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