OFAC licenses no longer required for Iranian EB-5 investors

When they are published Monday, Oct. 22, new federal Iranian Transaction and Sanctions Regulations will no longer require licenses from the Office of Foreign Assets Control (OFAC) giving permission for Iranian investors to transfer funds to the United States from Iran under the E-2 and EB-5 visa programs.
I am still studying the new regulations, but they do say, in pertinent part:
"U.S. persons are authorized to engage in all transactions necessary to export financial services to Iran in connection with an individual's application for a non-immigrant visa under category E-2 (treaty investor) or an immigrant visa under category EB-5 (immigrant investor), provided that any transfer of funds pursuant to the authorization set forth in this paragraph is effected in accordance with [section] 560.516.
"In the event services are exported under [the] paragraph [above] ... in connection with an application for an E-2 or EB-5 visa that is denied, withdrawn, or otherwise does not result in the issuance of such visa, U.S. persons are authorized to transfer, in a lump sum back to Iran or to a third country, any funds belonging to the applicant that are held in an escrow account during the pendency of, and in connection with, said visa application, provided that any transfer of funds pursuant to the authorization set forth in this paragraph is effected in accordance with [section] 560.516."
Section 560.516 states:
"United States depository institutions are authorized to process transfers of funds to or from Iran, or for the direct or indirect benefit of persons in Iran or the Government of Iran, if the transfer arises from, and is ordinarily incident and necessary to give effect to, an underlying transaction that has been authorized by a specific or general license issued pursuant to, or set forth in, this part and does not involve debiting or crediting an Iranian account.
"U.S. registered brokers or dealers in securities are authorized to process transfers of funds to or from Iran, or for the direct or indirect benefit of persons in Iran or the Government of Iran, if the transfer arises from, and is ordinarily incident and necessary to give effect to, an underlying transaction that has been authorized by a specific or general license issued pursuant to, or set forth in, this part and does not involve debiting or crediting an Iranian account."
I am still studying these new regulations (which run to 193 pages, by the way) but they appear to allow an EB-5 investment project to obtain a general license, which would obviate the need for specific OFAC licenses for Iranian EB-5 investors.
I will write more about this startling event later after I have digested all of the regulations.  If the regulations are evidence of a policy shift on Iranian sanctions, it appears that the federal government wants to extend a friendly hand to private investors (most of whom love America) while getting tougher on the Iranian government.  Another factor is that OFAC licenses are taking more than six months to get from Treasury.  When I got my first one in 2009, it took two weeks.

Pilot program extended for 3 years

I guess that's okay and the EB-5 Immigrant Investor Pilot Program has been "extended" -- miraculously -- for another three years is considered a big deal.  I don't.
The Immigrant Investor Pilot Program is the longest lasting federal pilot program in history.
It is good for America.  It is good for America's economy.  Why the immigrant investor program has not been made permanent by Congress is an unadulterated mystery.

USCIS releases EB-5 statistics

Statistics are in for the third quarter of this federal fiscal year.
USCIS has approved 3,002 I-526 petitions (for the conditional green card) and has 1,154 pending.  The approval rate is 79 percent.
The agency has approved 639 I-829 petitions (for the permanent green card) for an approval rate of 84 percent.

New EB-5 Program office to be created

A new office will be created to oversee the EB-5 Program, according to an announcement on July 19 by USCIS Director Alejandro Mayokas.
Also, a review board will be created by the end of July, consisting of two supervisory immigration service officers and an economist, to examine regional center applications recommended for denial, with applicants having the opportunity to meet with the board members in person.
These are major positive developments for the EB-5 Program, which has lurched from crisis to crisis over the past few years.
The new, dedicated EB-5 Program office will be led by a Chief of Immigrant Investor Programs.  Mayorkas said the job was posted July 19, and that he's looking for someone who has "significant experience in the business world and will assume responsibility for ensuring that the program is administered efficiently, with integrity, with predictability, and with an understanding of today's business realities."
"We understand," he wrote in the announcement to EB-5 stakeholders, "that more work needs to be done to further improve our administration of the EB-5 Program."
This is all good, but we'll see.  As my father used to say, "Don't listen to what people say; watch what they do."
The EB-5 Program enjoyed a brief period of clarity and certainty in 2005 when it was led for almost four years by a former Commerce Department employee.  Let us pray that USCIS hires someone who can understand the EB-5 Program.  Stakeholder meetings, conferences, conference calls, and requests for additional evidence make it abundantly clear that there are wide gulfs in levels of understanding of the EB-5 
Program generally, and regional centers and regional center investment projects specifically, among USCIS employees at the California Service Center.

Senators should vote for permanent EB-5 Program

Please encourage your U.S. senators to vote for S. 3245, which was introduced by Judiciary Committee Chairman Senator Patrick Leahy and ranking member Senator Charles Grassley.  Cosponsors include Senators Conrad, Hatch, Kohl, Lee, Rubio, and Schumer.

The bill would make permanent four existing visa programs due to "sunset" on September 30 -- the EB-5 Regional Center Program, CONRAD30, E-Verify, and religious workers.

This will have the very positive effect of eliminating uncertainty that Congress supports these important visa programs.

USCIS economists drop a bomb on EB-5 stakeholders

It was supposed to be a conference call to bring newly hired EB-5 economists from the California Service Center to USCIS HQ in Washington for a forum.  On June 22, Director Alejandro Mayorkas and the economists went first, and then in-person and on-the-phone participants could ask questions or make comments.
It was near the end of their presentation when the USCIS economists dropped their bomb on EB-5 stakeholders.  The USCIS economists said that land acquisition costs cannot be used in I/O models (methodologies) to show the creation of indirect and induced jobs.  I understand the reasoning, but this is another change in policy -- another example of "moving the goalposts", just like the now-infamous "tenant occupancy" memo of February 17, which was sprung on EB-5 stakeholders without warning.
I get that.  But what about pasture land for dairies?  What about cows?  What's next on the chopping block?
There was very little utility in the information provided by the USCIS economists.  The call was not a total waste of time, but almost.  USCIS employees generally demonstrate that the less said and the more vague the better.  That approach serves the agency's interests well, but does nothing to help its customers.

Sad to sing my swan song

     I just rotated off the EB-5 Investors Committee of the American Immigration Lawyers Association.  For four long years I battled to improve, along with my hard-working colleagues, the management and function of the EB-5 Program and the Immigrant Investor Pilot Program.
     Sadly, if I were asked, "Is the EB-5 Program better off today than when you took office?", I would have to say no.  While the numbers are greater, i.e., there are more I-526 petitions (for the conditional green card) and I-829 petitions (for the permanent green card) being approved by U.S. Citizenship and Immigration Services (USCIS) today, there are also wrenching changes in adjudications and federal policy, without lawfully required rulemaking procedures, and failure even to implement what the headquarters staff tells immigration service officers at the California Service Center to do, or how to approach particular problem areas in adjudications.
     My disappointment in USCIS knows no bounds.  I am actually relieved to be away from the fray for awhile.
     It was bad enough listening to a USCIS CSC employee deride stakeholders, who traveled thousands of miles for the meeting in California, over an open mike.
     So the AILA committee's parting shot was a 10-Point Program, to-wit:
     1.  Provide a forum whereby USCIS representatives on a quarterly basis can advise regional center stakeholders of the issues it is seeing in applications that are producing the largest numbers of RFEs and denials.  At the same forum, allow regional center stakeholders to provide lists of adjudicatory issues on which there is a lack of clarity.
     2.  When new standards are going to be implemented that will affect large numbers of applications (whether it involves the methodology for the counting of jobs that will be created, or the structure of bridge financing, or any other aspect of an EB-5 transaction), provide notice to stakeholders in advance rather than issuing large numbers of RFEs on issues that were not issues at the time of filing.
     3.  Implement USCIS Director Mayorkas’ idea of a Decision Board as promptly as possible.  This Decision Board would be made up of economists and business analysts and would meet or conference with regional center applicants to discuss any issues that need to be resolved before a project can be approved.
     4.  Hire a sufficient number of examiners to bring processing times to levels that make some sense in a time-sensitive, job-creating program such as EB-5.
     5.  Instruct examiners that, except in rare instances, multiple RFEs should not be issued.
     6.  Publish meaningful guidelines on what adjudicators want to see when adjudicating a regional center application.  Most denials and RFEs are based on often-changing policies that are not contained in any regulation or even any government-issued memorandum.
     7.  Make the regional center amendment process workable.  Regional Centers are approved for specific geographical areas, specific industry codes and specific economic methodologies for counting job creation.  Right now, if a regional center wants to amend its geography, economic methodology or industry code, the published processing time is 8 months – longer than filing a new regional center application.  This is unworkable.
     8.  USCIS has created a process – the exemplar I-526 – that enables a regional center to have a project approved for EB-5 investment prior to receiving investments.  The problem is that, despite a $6,230 fee and an 8-month processing time, USCIS does not consider itself bound by any approval.  USCIS must make this process meaningful as a way of saving time and adjudicatory resources.  If it is not meaningful, stakeholders should not be expected to pay large filing fees and wait long periods of time; and the process should be eliminated.
     9.  Provide substantive responses to inquiries sent to USCIS’s EB-5 mailbox.
     10.  Last, but by no means least, increase the monitoring of approved regional centers.  We all agree that if there are any non-compliant regional centers or project developers, they do harm to the program and should be eliminated.
     Even though I was proud to serve AILA on the EB-5 Investors Committee, I was sorry to leave my fellow committee members with so many daunting challenges.  It should go without saying that the EB-5 immigrant visa investor program should be a win-win for everybody, but according to USCIS, it's just another visa program full of fraud and abuse.  More's the pity.