+ How long does it take for an adjudicator to actually approve a case? Why does this whole process take so long?

In the case of a Regional Center case, the first I-526E form relating to a particular project is usually the most problematic for the adjudicator. Each successive petition should be easier to adjudicate. The adjudicator must do preliminary security checks against the investor and key individuals. If there are National Security Issues, the adjudicator will have to wait for special units and the interagency process to resolve that the investor is not a security risk. There are also systems based inputs and physical actions that must be completed to package the physical file for its next step. The primary discretionary action is the source of funds analysis. If an adjudicator is fast, and if the file materials are well organized, the adjudicator may be able to clear 3-4 approvals in a day. 2 cases per day is pretty standard. RFEs and “direct investment” cases take longer. In recent months, processing time seems longer. The Investor Program Office has not adequately explained the additional delays. Generally, delays are volume related, and not the fault of the adjudicators themselves.

+ What do I do if I don’t have all of the “required” documents I need for the I-526 or I-526E?

USCIS often says that documents are “required.” But some times documents aren’t available. That doesn’t mean your I-526E will be rejected. It depends on why the documents are unavailable, and on whether you can prove the facts that would normally be discussed in those documents some other way. For example, USCIS asks for years of tax records. In the case of a youthful investor, years of tax records may not exist. In such a case, the tax records from the person who is the source of the funds are generally produced. When assembling a SOF report, the preponderance of the evidence burden of proof and a credible overall presentation is sometimes more important than any particular document.

+ Why does USCIS deny so many cases?

Actually, it doesn’t. While denial rates have grown, it remains a fact that the overwhelming majority of regional center program cases are approved. Fewer direct investment cases are approved, but a majority of direct investment cases are approved, too. There is another area where things have changed: the Request for Evidence (RFE) rate is running at about 30-40%.

+ Does the increase in required investment amount under the new regulations mean that more cases will be denied?

USCIS hasn’t announced any changes in the methods it uses to assess cases. Most people working in the field assumed that, other than the new method of assessing TEAs and the required investment amount, little would change with the RIA. While the program changes may reflect policy shifts generally, there is no reason to believe day-to-day adjudication is any different. Ironically, the new guidelines are good for some investors. After all, the concept that 10 jobs are likely to be created from an investment is easier to accept the larger the investment. Increasing denial rates are likely the result of larger political policy issues, not the RIA.

+ What is the standard by which the cases are judged?

The “preponderance of evidence” standard is an American legal construct that basically tells a fact finder how suspicious s/he should be. Judges often tell American jurors that it means “more likely than not” or anything more than 50%, or “50% plus a feather.” Looking at it mechanically is not always helpful, and does little to distinguish it from its related concepts “clear and convincing” evidence, and “proof beyond a reasonable doubt.” In the case of an EB-5 petition, or any other immigration petition, some evidence of every element is required, but it’s more helpful to think of the evidence as a whole. That is, would a reasonable person in the position of the adjudicator be willing to accept the story that I am trying to tell? This assessment can be an art. That's why a former adjudicator is a great asset for your team.

+ I got a Request for Evidence. Does that mean USCIS wants to deny my petition?

Not all all. In fairness to USCIS, historically they have not wanted to deny any petitions. Incomplete petitions, or those that are poorly supported, require more time and effort from adjudicators. That's why it’s important to consult established experts when preparing your I-526E filing. Familiar formats and layouts in petitions give adjudicators confidence. Who wouldn’t want an easy day at work? Our job is to help you make it easy for them to approve your case. Steve Pazan has been on the adjudications end of hundreds of petitions. He can help you read between the lines of an RFE to determine whether you are in serious trouble. A Notice of Intent to Deny (NOID) is an entirely different story.

+ My friend’s petition was filed at the same time mine was, but his has been adjudicated already. What does that mean for me?

Most likely, nothing. While USCIS tries to keep to a practice of first in, first out, or by a "visa-availability" approach, there are a lot of issues that affect the timing of adjudication that have nothing to do with the merits of the cases. I-956Fs get approved at different rates, holding up adjudications of files for one project compared to another. The volume of files USCIS deals with makes it difficult for them to adhere to FIFO, as it is sometimes easier to simply adjudicate the next file within arms reach, rather than the next one in the filing sequence. Experiences suggests that USCIS is rarely as intentional in its actions as applicants think. It is a small comfort, and actually part of the frustration of the EB-5 program, that IPO is poorly managed, and not accountable to shareholders. What is random sometimes looks intentional.

+ Why is it so hard to get specific answers from USCIS about what’s going on with my file?

Volume makes it hard for USCIS to communicate about individual cases other than in a very formal and general manner. In addition, there have unfortunately been historical abuses that have discouraged USCIS from allowing its adjudicators to contact applicants and attorneys in an informal manner. In many ways, a give and take might work well in the low volume EB-5 area, but USCIS adjudicates thousands and thousands of different types of cases, and EB-5 applicants are a small part of a sprawling system.

+ Who are the adjudicators?

Adjudicators are typically mid-level bureaucrats from USCIS or the parent DHS. They will usually have some prior adjudicator experience. A substantial number of them have advanced degrees in law or business, although this is not required. The workforce at the Immigrant Program Office (EB5) is quite diverse, and a good adjudicator seeks out colleagues to inquire about unfamiliar cultural practices or other issues of first impression. Many of the adjudicators are naturalized citizens, or first generation Americans who still understand and participate in their family’s cultural practices. The average adjudicator is probably 35 years of age or older. The adjudicators work alongside economists that do the initial analysis of project job creation reports.

+ What can I do to speed the process up?

There is very little that the investor can do to speed up the process. Because of the Investor Program Office's reluctance to communicate with the public about cases, it's difficult to find out what's going on. A legal action, called a "Mandamus," can be filed, depending on the case. Sometimes a Manadamus can nudge IPO to give a case some attention. An investor with a lot of money to burn might be willing to sopend it on changing the system through a mandamus action, but generally, the cost of making institutional change exceeds any one investor's willingness to pay. Therefor, even the utility of a mandamus action is limited.

+ Can I hire Pazan Consulting to do only my SOF Report?

Of course. and we are hapopy to work woth your EB-5 G-28 lawyer on procing and delivery. If your lawyer isn't willing to adjust his/her pricing to work with Pazan Consulting, you should probably find another lawyer. The SOF report is a pretty specialized product, and most law firm business models are not set up to accomodate your unique circumstances, unless you look just like the investor that they filed for yesterday. The SOF report and project selection can be done independently as well.

+ Can Pazan Consulting quote the RFE as part of the SOF preparation?

Why do you expect to get an RFE? The whole point of hiring Pazan Consulting is to AVOID an RFE. Furthermore, there are RFEs and there is trouble. Simple RFEs are easy to fix. Pazan stands by his work, and will fix his errors - if any - gratis. RFEs should be priced reasonably - depending on how comprehensive they are. If the issue is more complicated, the cost will go up, but usually problems will be flagged at the inception. Pazan believes that, while RFEs may not be avoidable, surprises are.