E9-231. Change in Filing Location for EB-5-Related Petitions and Applications and Regional Center Proposals

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Notice.

SUMMARY:

This Notice announces the requirement that petitions and applications related to the Alien Entrepreneur (EB-5) immigrant classification, and Regional Center Proposals under the EB-5 Immigrant Investor Pilot Program, must be filed at the California Service Center (CSC). Currently, EB-5-related petitions and applications are filed at either the Texas Service Center (TSC) or the CSC, depending on where the alien's commercial enterprise is located. Regional center proposals are being submitted to the Chief of USCIS Service Centers at USCIS Headquarters. The change to one filing location for EB-5-related petitions, applications, and regional center proposals announced by this Notice is necessary to improve the efficiency in the processing of EB-5-related filings.

DATES:

This Notice is effective January 26, 2009 for the filing of Forms I-526, I-829, and Forms I-485 based on an approved Form I-526. This Notice is effective January 26, 2009 for the filing of Regional Center Proposals under the Immigrant Investor Pilot Program.

FOR FURTHER INFORMATION CONTACT:

Joseph P. Whalen, Adjudications Officer, Service Center Operations, EB-5 Investor Program, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-2060, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Background

A. EB-5 Immigrant Classification

The employment creation immigrant classification (referred to as the “Employment Based (EB-5)” immigrant classification) allows qualifying aliens, and any accompanying spouses and children, to obtain lawful permanent resident (LPR) status if the qualifying aliens have invested, or are actively in the process of investing, $1 million in a new commercial enterprise. See Immigration and Nationality Act (INA) secs. 203(b)(5)(A) and (C), 8 U.S.C. 1153(b)(5)(A) and (C). Their investment must benefit the U.S. economy and create full-time jobs for 10 or more qualifying employees. INA sec. 203(b)(5)(A)(ii), 8 U.S.C. 1153(B)(5)(A)(ii). If the investment is in a rural area or an area that has experienced high unemployment (referred to as “Targeted Employment Area”), the required capital investment amount is $500,000 rather than $1 million. INA sec. 203(b)(5)(C)(ii), 8 U.S.C. 1153(b)(5)(C)(ii); 8 CFR 204.6(f)(2). Also, under the Immigrant Investor Pilot Program, qualifying aliens may meet the job creation requirement through the creation of 10 indirect jobs. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, sec. 610(c), Public Law 102-395, 106 Stat. 1874 (1992), 8 U.S.C. 1153 note. To qualify for the relaxed job creation requirement, an alien must invest in a new commercial enterprise that is located in a geographical region of the United States covered by a “regional center” (defined in 8 CFR 204.6(e)) approved by USCIS for participation in the pilot program. This pilot program is set to expire on March 6, 2009. See Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Div. A, sec. 144, Public Law 110-329, 122 Stat. 3574, 3581 (2008). USCIS approves a regional center based on the submission of a proposal which successfully:

• Describes how the regional center will promote economic growth in a particular geographical region of the United States;
• Describes how jobs will be indirectly created;
• Specifies the amount and source of capital committed to the regional center;
• Describes the manner in which the regional center will have a positive impact on the economy; and is
• Supported by economically or statistically valid forecasting tools. 8 CFR 204.6(m)(3).

Obtaining LPR status under the EB-5 immigrant classification is a three step process, as follows:

(1) The alien must first be classified as an alien entrepreneur. This step requires the alien to obtain an approval of a Form I-526, “Immigrant Petition by Alien Entrepreneur.” See 8 CFR 204.6(a).

(2) The alien then applies to become a conditional resident on the basis of the approved Form I-526 petition. If the alien resides in the United States, he or she must obtain a grant of a Form I-485, “Application to Register Permanent Residence or Adjust Status” from USCIS to become a conditional resident. See 8 CFR 245.1(a). If the alien resides outside of the United States, he or she must obtain an immigrant visa issued by the Department of State (DOS) and gain admission to the United States on this basis. Foreign Affairs Manual 9 FAM 42.32(e) N12. After completing one of these steps, the alien will obtain conditional resident status. INA section 216A(f)(1), 8 U.S.C. 1186b(f)(1).

(3) The last step to obtaining LPR status is triggered 90 days before the second anniversary of the alien entrepreneur's conditional resident status. INA section 216A(d)(2), 8 U.S.C. 1186b(d)(2). During this 90-day period, the alien entrepreneur must submit to USCIS a Form I-829, “Petition by Entrepreneur to Remove Conditions.” 8 CFR 216.6(a)(1). Failure to timely submit Form I-829 or to obtain a removal of conditions may result in termination of conditional resident status and USCIS taking action to place the alien and accompanying dependents in removal proceedings. 8 CFR 216.6(a)(5).

B. Filing Locations

The regulations provide that EB-5 petitions (Forms I-526 and I-829) must be filed with the service center having jurisdiction over the area in which the new commercial enterprise is or will be principally doing business. 8 CFR 204.6(b); 8 CFR 216.6(a)(2). Currently, the Texas and California Service Centers have jurisdiction to adjudicate EB-5 I-526 and I-829 petitions. 63 FR 67135 (Dec. 4, 1998). EB-5-related Forms I-485 must be filed at Texas Service Center (TSC), regardless of where the alien resides. See Instructions to Form I-485, p. 6.

For proposals submitted by regional centers under the Immigrant Investor Pilot Program, the regulations provide that proposals must be submitted to the “Assistant Commissioner for Adjudications,” a position held at the Headquarters of the former Immigration and Naturalization Service (INS). However, this position was rendered obsolete following the abolishment of INS in March 2003. See 6 U.S.C. 291; Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (Nov. 25, 2002). No parallel position is present in USCIS. In the absence of further guidance, regional centers wishing to participate in the Immigrant Investor Pilot Program have been submitting their proposals to the Chief of Service Center Operations.

In an effort to improve the consistency and timeliness of EB-5-related adjudications, USCIS has determined that it is necessary to consolidate such adjudications under the jurisdiction of the CSC. USCIS has established a unit at the CSC comprised of specially-trained adjudicators dedicated to EB-5 adjudications. The deciding official will be the Director of the CSC. By consolidating adjudications at the CSC, USCIS believes that it will be able to reduce overall processing times and better monitor EB-5-related adjudications.

II. Filing Location Change

Beginning on January 26, 2009, Forms I-526, I-829, and I-485 (EB-5-related only), and regional center proposals under the Immigrant Investor Pilot Program must by filed at the following address:

For Direct Mail:

U.S. Citizenship and Immigration Services, California Service Center, ATTN: EB-5 Processing Unit, P.O. Box 10526, Laguna Niguel, CA 92607-0526.

For non-United States Postal Service (USPS) deliveries (e.g. private couriers): U.S. Citizenship and Immigration Services, California Service Center, ATTN: EB-5 Processing Unit, 24000 Avila Road, Room, 2nd Floor, Laguna Niguel, CA 92677.

For a 30-day period, until February 9, 2009, Forms I-526, I-829, and I-485 (EB-5-related only) received by the TSC will be considered properly filed, assuming all other filing requirements have been met. The TSC will transfer such forms to the CSC for adjudication. Likewise, for a 30-day period, until February 9, 2009, Immigrant Investor Pilot Program regional center proposals received by USCIS Headquarters will be considered properly filed. Such proposals will be transferred to the CSC for adjudication. After the 30-day transition periods, any Forms I-526, I-829, and I-485 (EB-5-related only) or regional center proposals that are received at a location other than the address specified in this Notice will be rejected and returned with directions to re-file at the appropriate address.

Any Forms I-526, I-829, and I-485 (EB-5-related only) at the TSC for which no adjudicative action has commenced as of January 26, 2009 will be forwarded to the CSC. In addition, any regional center proposals for which no adjudicative action has commenced as of January 26, 2009 will be forwarded to the CSC.

III. Paperwork Reduction Act

USCIS is amending the instructions to the Forms I-485, I-526 and I-829 to reflect the new filing location. Accordingly, USCIS has submitted Information Correction Worksheets (OMB 83-C) to the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act. The instruction changes will not impose any new reporting or recordkeeping requirements. The OMB control number for these collections are contained in 8 CFR 299.5, Display of control numbers.

Dated: January 5, 2009.

Michael Aytes,

Acting Deputy Director, U.S. Citizenship and Immigration Services.