What changes should EB-5 regional centers be aware of in the new policy manual?

There have been many changes in the new policy manual released by USCIS on Nov. 30, 2016. One of the principal ones would be a requirement of a statement signed by a regional center principal confirming that the regional center is aware of a specific project being presented for the first time as part of the immigrant investor petition as well as new details that are required of the operational plans to be filed with the Application for Regional Center on Form I-924. The manual also describes the process in detail for a regional center termination.

The policy manual is merely an amalgamation of all fairly recent decisions and guidance. On Nov. 30, 2016, USCIS released a draft version of the USCIS Policy Manual on the employment-based fifth preference immigrant visa category (EB-5). The Policy Manual includes the requirements for an EB-5 regional center and for Form I-526, Immigrant Petition by Alien Entrepreneur. It also describes the different types of regional center projects, including hypothetical projects and actual projects. USCIS has combined previous adjudication memoranda and current adjudication policy in one source. This new Policy Manual will be controlling and supersede any related prior USCIS guidance.

It is worth reviewing the entire policy manual as a whole, but some sections to take note of are the increased disclosure requirements for any fee payments paid from the issuer/NCE to third party promoters and consultants. Also, regional centers should be aware of the new filing guidelines/attestations for I-526 petitions filed without exemplars.

The USCIS Policy Manual is now the go-to source for EB-5 program guidance. In addition, it will replace (in part) and expand in part on the highly cited USCIS Policy Memo from May 30, 2013. From an investor standpoint, the good news is that there are no significant changes as there is no perceptible change to policy, just to procedure. One example includes with regards to investor using proceeds from a loan may qualify as investment​ capital​ the investor must demonstrate:​ (i)The investor is personally and primarily liable for the debt; ​(ii) ​The indebtedness is secured by assets the investor owns​; and​ (iii) The assets of the new commercial enterprise ​are not used​ to secure any of the indebtedness​; the investor must have primary responsibility, ​under​ the loan documents, for repaying the debt used to satisfy his or her minimum required investment amount.​ ​T​he investor ​must​ also​ demonstrate that ​his or her own collateral secures the debt​,​ ​and that the value of ​the ​collateral is sufficient to secure the amount of ​debt that​ satisfies​ the investor's minimum required investment amount​.​ ​A ​loan secured by the investor's assets qualifies as capital only up to the fair market value of the ​immigrant ​investor's​ pledged ​assets.​ The main changes that replace or expand on current rules are procedural-based affecting the regional center, the project (i.e., the JCE or developer) and the investor's immigration attorney with respect to procedures and methods such as what to include in an exemplar filing, what is needed for proof at the I-829 stage, how to file an actual application on I-924, etc. The USCIS designed this to be the leading source of guidance henceforth.