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ILW.COM EB-5 Blog

A Few Thoughts on the May 30, 2013, USCIS "Final" EB-5 Policy Memo

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Welcome to my first post in this blog! I have been thinking and as you might already know, that can be a dangerous and scary situation.  Read on if you dare...... 


Anyway,  recently I have been issuing a series of short articles that address rather limited issues or points of interest. I find that if I put too much into one article that folks get lost and confused.


When it comes to the recent FINAL policy Memo, some folks are confused about the items NOT specifically addressed in it or only modified by it.


For example,  the PM does not explicitly address the fact that you cannot buy and sell RC Designation.  The reason is that it has ALWAYS been the case because it is statutory.  It did not need to be addressed. Ther are a series of reasons why an amendment may be filed.  It is as comprehensive of a list as USCIS could think of.  Ther is another part of the Memo that explicitly exempts certain issue from demanding any amendment at all.  Ask yourself what is missing from the shorter list?  The issue of a change of admisinstration or organizational structure is not specifically waived from filing an amendment.  So, on the flipside of this issue, and just days before the Policy Memo was released, USCIS altered some language in their standard RC Designation letters that bluntly states that RC Designation is non-transferable.


8 USC ß 1153 Note: Immigration Program is where you find ß610  of the appropriations Act of 1993 (the statutory home of the Regional Center Program).  ß610 (a) vests statutory authority to designate Regional Centers in the Secretary of Homeland Security who has delegated this responsibility to USCIS.  Nowhere in any statute, regulation, or precedent has it ever even been contemplated that an existing Regional Center has any authority whatsoever to sell their designation in order to bestow such status upon another.


Some will argue that since the statute does not explicitly prohibit selling a Regional Center then it must be OK. That is naÔve thinking. The RC statute also does not explicitly state that you are not allowed to bride a government official in order to get status but to argue that it would be OK is just plain ridiculous.


I have recently penned a five part series on "cautions" relating to the May 30, 2013 EB-5 Policy Memo (Immigration Daily published and I posted on  www.slideshare.net/BigJoe5).  


There is also an article I published just before the Memo came out which discussed bridge loans.  I came down harder than USCIS on that issue and believe that the way USCIS stated its position will lead to some confusion; i.e., USCIS says that EB-5 money can replace earlier financing even if the use of EB-5 money was not anticipated.  


Great! BUT there is a serious restriction on using that option.  The earlier financing being replaced needs to have been considered "short-term" from the start or the EB-5 money is being used because earlier financing arrangements fell through.  Negligent misreading of these issues as stated in the Memo might be used to draw in suckers to buy-out a successfully completed project that has already created the jobs, and is merely being sold for profit and NOT to replace earlier bridge or other short-term or failed financing.  This is the reason I have always warned that the investors and RCs cannot "hang back" and "shop around" for a "done deal".  There is no "at risk" investment in that scenario.


Check back for more insights in the coming days (and for who knows how long).


That's my two-cents, for now.


e-mail: joseph.whalen774@gmail.com 


 



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