By José E. Latour
Vietnamese EB-5 investors with long-delayed I-526 applications saw a great deal of adjudication activity over the first half of 2023; unfortunately, all too many of those Vietnamese I-526s were denied based upon USCIS’ faulty application of the “third party transfer agent” prohibition implemented several years ago without any public notice or opportunity of comment. Many of those unjustly denied have retained expert immigration litigators to challenge these denials in federal court, arguing not only against the arbitrary and unpublished rule change but also against the obvious injustice of its retroactive application to investors who funded years before the policy shift. We wish these folks success and believe that as federal judges understand the clear misapplication of law and consider these lawsuits, courts will be reversing denials and insuring just adjudications for all EB-5 investors going forward.
But USCIS adjudication of the I-526 is only the first step of a 3 step process:
Step 2 can’t begin until Step 1 is complete, and Step 3 can’t happen until Step 2 is complete. For investors those who DID have their I-526s properly approved by USCIS and were not derailed by the aforementioned misapplication of law, that approval was only Step 1. Once an I-526 is approved by USCIS, Step 2 begins when the file goes to the National Visa Center (NVC), which is the office responsible for gathering all visa applicants’ personal data, sending it to the appropriate U.S. Immigrant Visa Section abroad, and coordinating with said consulate or embassy on scheduling the immigrant visa appointment where the family will finally collect their EB-5 immigrant visas. In response to the resumption of USCIS adjudications, the NVC acted quickly to request information from approved applicants, completing Step 2…but then things stalled again: while NVC proactively communicated with investors that their documentation was complete, months passed without any news from the respective Immigrant Visa section regarding appointment dates (Step 3). And as it relates to AVSRC’s own Vietnamese investors, these delay obviously triggered additional worries for families relying on CSPA protection for an adult child.
Well, I am happy to report that Step 3 – the scheduling of Immigrant Visa Appointments – is back in full gear at the HCMC Consulate’s Immigrant Visa Section. In the past days numerous AVSRC investors have received their appointments for next month at the HCMC consulate and we are hopeful that more will be scheduled soon. Hurray!
On behalf of our investors, AVSRC wishes to express our appreciation to all three offices – USCIS EB-5 adjudicators, the NVC, and USCONGEN Ho Chi Minh City’s IV Section – for their collective, sequential efforts to get the EB-5 process flowing smoothly again for our investors. We fully realize the challenges these offices have faced as a result of COVID, the expiration of the prior EB-5 law, and the long pause before the 2022 law was finally enacted. When one considers that the new law only took effect on March 15, 2022 and that the law required a complete new makeover of all aspects of the EB-5 program, ranging from the creation of a slew of new forms to the creation of mountains of new policy guidelines, I submit that despite the criticism it has weathered – much of it admittedly justified – the USG deserves kudos for the efforts we’ve seen put forth in the past year. The USG, through its new efforts, is restoring the luster and credibility of the EB-5 Regional Center program, which has proven to be one of America’s most significant conduit of Foreign Direct Investment (FDI), bringing billions of investment dollars to the U.S. and creating hundreds of thousands of new U.S. jobs.
American Venture Solutions Regional Center has been successfully securing EB-5 residency for immigrant investor families since 2012 and is one of the few EB-5 Regional Centers Approved and Reauthorized under the EB-5 Reform and Integrity Act of 2022. AVSRC works directly with accredited investors without relying on agents or third-party “finders”. If your family is considering a future life in America through an EB-5 Immigrant Investor Visa, contact us directly for more information.
Attorney José E. Latour