Thoughts About CoronaVirus and Direct Investment Cases

It may be just a matter of time before USCIS issues its first RFE/NOID/Denial saying that a business plan does not support the job creation required by the EB5 program, given the Covid19 crisis. 

Indeed, any investment-based applicant (I-829, I-526, E2) who anticipates adjudication in the near future should be concerned that Covid19 renders his/her business plan assumptions invalid. My concern is that the assumptions underlying job creation reports are no longer valid.  

I can imagine that these typical EB5 projects might be affected by Covid19 as we reopen the economy:

- Day care centers will need to adjust staffing requirements and attendance expectations based upon high unemployment numbers and the increased cost of cleaning surfaces and practicing social distancing.

- Hotels may have different janitorial needs, and may need to revise occupancy rates downward.

- Restaurants may be required to adjust the number of tables, or institute take out service to survive.

Arguing that a petition was “approvable at the time of filing” may only go so far. Therefore, an interfiling may be helpful in cases that are close to adjudication - perhaps those that have I-526’s pending for over 18 months, and similarly situated I-829’s. 

My concern extends to both both Regional Center (RC) cases, as well as direct investment cases, although an RC's business plan is typically the concern of the RC and the project developer, rather than the individual investor. I suggest that RC investors ask their representative whether the RC is addressing this issue. The Investor Program Office (IPO) may be late to this idea, because saying that the American business climate is less hospitable may be considered a political determination, otherwise I think we would have seen it already. 

If you know anyone who might be concerned by this, Pazan Consulting would be happy to quote a nominal flat fee for a recommendation on the following:

- A review of the Covid19 mitigation rules in the jurisdiction in which the project does business;

- An assessment of the existing filing to determine whether it is vulnerable; and

- A recommendation as to whether they should make an interfiling to amend their petition, I-829, or E2, as appropriate.

Additional consulting or legal services could be arranged or contracted as appropriate.