Immigrant Investor Petitions : EB5 Petitions
Posted Oct 12, 1998

There have been many recent cases certified by the Tiger Team (explained below) as precedent decisions and in a majority of these cases, the investor's I-526 Petition was denied or the conditional status was revoked. In a June 21, 1998 Memo, the INS provides the Service Centers with the procedures that are to be followed for adjudicating immigrant investor petitions (Forms I-126 and I-829) that have been placed on hold pursuant to the March 19, 1998, INS memo. The summary of the main provisions of the March Memo had been outlined by the Immigration Bulletin put forth by the Law Office of Sheela Murthy.

Pursuant to the instructions in the March 11, 1998 field memorandum, the Administrative Appeals Office (AAO) received 19 immigrant investor petitions (I-526) on certification from the four Service Centers and has already issued decisions on many of the cases. The Immigration and Naturalization Service (Service or INS) has also designated those it considers as precedent decisions.

During the week of July 6, 1998, the Service provided intensive supplemental training on the precedent decisions and related EB5 matters to select adjudicators. After the training, the Service assembled a "tiger team" to adjudicate cases which had been placed on hold. The tiger team is operating from the California Service Center from July 15 through August 13, 1998.

The INS has suggested that those investors who wish to withdraw a petition and file a new petition in its place must forward the new petition and the request for withdrawal, clearly marked in red marker HOLD WITHDRAWAL to the CSC by July 15, 1998.

The tiger team's task is to review and determine the outcome of the approximately 680 initial cases which had been placed on hold, namely, all newly filed Form I-526 petitions, Form I-526 petitions approved by the Service but returned by the Department of State for revocation before visa issuance, and related approved Form I-526 petitions with pending Form I-485 adjustment of status applications.

At present, the INS has determined that absent a finding of fraud or other improper acts, INS will not initiate rescission proceedings in the cases of those investors who have obtained unconditional lawful permanent resident based on petitions that may have not complied with the statute and regulations, as discussed in the General Counsel's memorandum of December 19, 1997. All EB5 applicants will need to comply with the INS field Memoranda.

The cases which have been released by the INS as precedent decisions address issues pertaining to the source of funds, the lower amounts of investment allowable only in targeted employment areas, new commercial enterprise and the creation of jobs for 10 U.S. citizens, the investment being at risk and the loans repayable within 2 years, etc.