What Biden’s recent executive order means for EB-5 adjudications

  • Written by GCBI Team Posted on June 10, 2021 | Updated on June 10, 2021 | 1 min read

Biden’s February “Executive Order on Restoring Faith in Our Legal Immigration Systems…” affirms the USCIS deference policy in adjudicating EB-5 petitions, declares law firm Greenberg Traurig. Therefore, when a project has Exemplar approval, and USCIS is adjudicating an investor I-526 petition associated with that project, USCIS should only review the investor’s source of funds and background and accept the EB-5 investment as approved.

President Biden, on February 2, 2021, issued the “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” Included in the mandate of this order is fair and efficient immigrant processing.

What Exemplar approval means in practical terms

Immigration law firm Greenberg Traurig asserts that Biden’s order affirms the USCIS policy of deferring to Exemplar approval for immigrant petitions. Such deference means the agency does not have to re-review the project-related details of an investors’ I-526 petition as these details have already been reviewed in the Exemplar approval. Deference should help make processing more consistent and efficient.

3 exceptions to deferring to Exemplar approval

However, there are exceptions where USCIS will review, even when there exists Exemplar approval, an I-526 petition’s project-related information:

  1. Material change If USCIS believes there has been material, or significant, change to the project plan.
  2. Legally deficient approval When the Exemplar approval was based on an objective error or mistake in determining eligibility.
  3. Fraud or misrepresentation 

I-829 adjudication and deference

USCIS should also defer to an I-526 adjudication when later adjudicating the I-829 petition to remove conditions on permanent residency. This means when processing an I-829 petition,  Immigration Services should not reexamine prior determinations made in the I-526 review unless it believes there appears to exist one of the three exceptions outlined above. As an example, an I-829 adjudication should not once again review the source of funds or TEA designation.

Read The National Law Review article “Biden Executive Order Affirms Deference Policy Including EB-5 Cases”