The USCIS Ombudsman's Annual Report

The USCIS Ombudsman's Annual Report to Congress has recently been published with the USCIS response.

Of interest, USCIS reaffirmed for the I-829 removal of conditional residence application:

EB-5 adjudicators should not re-adjudicate the indirect job creation methodology for Regional Center cases absent clear error or evidence of fraud. USCIS will, however, continue to review the I-829 petitions to ensure that all measurable variables and assumptions that underlie the indirect job creation methodology have, in fact, been met.

For example, an investor may make a proposal to create a shopping center that would be leased to various businesses. At the I-526 stage, the investor may claim that this proposal would result in the hiring of a certain number of employees by the tenant-businesses and that a certain number of indirect jobs would be created as well. USCIS must ensure that the tenant jobs have substantially been filled to support the indirect job count. This is not re-adjudicating the job creation methodology, merely, verification of an assertion previously made during the I-526 stage.

In the alternative, if the job creation was based on total expenditure of capital to create the shopping center, USCIS must make sure that the full amount has, in fact, been invested in the job creating enterprise to support the job count.”

Where jobs have not yet been created by the time an I-829 is filed, the USCIS said:

“USCIS regulations provide some flexibility to respond to changed circumstances at the time the I-829 is filed by permitting the conditions to be removed from the alien investor’s permanent residence based upon a showing that the jobs will be created within a reasonable time.”

Regarding petitions based on investment in a regional center:

“USCIS currently prioritizes the review and processing of all Regional Center-affiliated petitions and will continue to do so. Regional Center-affiliated petitions are separated and assigned to specific officers who are trained to complete such specialized adjudications. With the increased number of staff dedicated to the processing of I-526 and I-829 petitions, we fully anticipate that the cycle times will continue to decrease.