On June 19, 2017, USCIS published a list of approvals and denials for Form I-526 [link] and Form I-829 [link] performance based on Regional Center, ranging from January 1, 2014 to May 31, 2017. At first glance this seems to be great news for investors: one can now finally use official government data to find which Regional Centers have the best track record for approval and weigh such data when performing due diligence as to which EB-5 investment is right for him or her. But let us be clear, prospective investors should NOT rely upon the I-526 and I-829 reports in determining where to invest, nor should existing investors now be worried about the performance of their projects simply because of these reports.
USCIS data is often inaccurate. Any immigration practitioner can attest to this pattern when reviewing published processing times, both in the EB-5 and non EB-5 context, that rarely track actual experience. It appears to us that the new I-526/I-829 reports are inaccurate as well. While we cannot explain the specifics in a public forum, upon review of this data and our knowledge of various Regional Center entities' reputations and clients' experiences, some of the published figures simply cannot be true.
USCIS' own disclaimer states that it "makes no claim" that its data is "is complete, timely or accurate." This is not a great statement for the agency to make in publishing what could be considered determinative data, risking undue influence towards investors' families in making what could be the most important decision of their lives.
At least one Regional Center owner / operator has publicly condemned the I-526 and I-829 reports, and we expect more to do so in the coming days. Below are excerpts from correspondence sent by CanAm Enterprises' President and CEO, Tom Rosenfeld, that we think are worth repeating to our readers that risk being influenced by questionable data.
[Disclaimer: Green and Spiegel does not endorse an EB-5 investment in any particular Regional Center, pooled direct, or project offering. The ultimate decision of whether and where to invest is the client's alone. In all cases we encourage our EB-5 clients to select a qualifying investment after completing full immigration and financial due diligence of a given project / offering, with the assistance of qualified professionals. In the interest of full disclosure, the Firm represents investors that have subscribed to CanAm-affiliated projects. The Firm also represents numerous investors petitioning through many other Regional Centers operating in the EB-5 industry.]
Mr. Rosenfeld's letter to his constituency provided concrete examples of the inaccuracy of USCIS' new data:
[I]t took us a matter of minutes to confirm that the statistics in the USCIS' reports did not bear any resemblance to CanAm's actual track record. For example, the USCIS stated that the total number of Form I-526 denials allegedly issued to CanAm's Regional Centers during the 3-year reporting period was 159, when in fact the actual number is a mere 12 petitions! Similarly, the I-829 Report listed only 1 Form I-829 approval for CanAm's Pennsylvania DCED Regional Center when in fact 145 petition approvals were issued during the 3-year reporting period. These types of gross errors appear throughout the USCIS' reports. [ ...]
[I]t is irresponsible to send out such misleading numbers that cause unnecessary concern to our investors. By USCIS' own admission, the goal of providing increased transparency to investors clearly has not been served.
We will keep our readers informed of future developments. At this time, we advise our clients examining prospective investments to not simply take this new data with a grain of salt, but to discard it completely unless and until the accuracy can be confirmed. Even if accurate data is eventually published, it is critical to remember that EB-5 immigration petitions can be denied based on investor-specific circumstances (such as failure to prove lawful sources of the invested capital) even though a project is EB-5 compliant. It also needs to be stressed that past performance does not guarantee future results.
As was our advice before this data was published, we cannot emphasize enough that there is no substitute for adequate due diligence. Investors exploring their EB-5 immigration options should request that Regional Centers provide statistics of their performance and also seek an immigration attorney's review of particular projects for statutory, regulatory, and USCIS' policy compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
