EB5 Investors Magazine English Edition Volume 6, Issue 2 | Page 104

Adjudications Officers (AO) at USCIS who work in the specialty Investor Program Office (IPO) in an office in Washington, DC. It matters. Consular Officers are members of the “Foreign Service.” They often consider their service to be the most selective and therefore superior institution in the U.S. government. They specialize, by a function of their posting, in the country in which they serve. USCIS adjudicators are usually G-13 or G-14 level civil servants, which normally are reserved for top-level positions such as supervisors and specialists. The workforce at IPO is diverse, but the individual AO may not have any familiarity or commitment to the country of an applicant’s origin. Regardless of bragging rights and pay scale, there are other differences in the adjudicatory contexts for E-2 and EB-5 visas that a conscientious attorney or consultant should explain to the prospective applicant. CONSULAR PROCESSING: WHAT COULD GO WRONG DURING AN INTERVIEW? Most visa applicants are interviewed eventually. However, when an EB-5 applicant appears for an interview overseas, the applicant already has an approved I-526. EB-5 consular processing does not normally involve a de novo review. Consular Officers defer to USCIS’s findings regarding the applicant’s right to the immigration status, and focus on identity and admissibility. While there have been some reports of Consular Officers delving into the merits of I-526s, they are generally instructed to do so only in cases of suspected fraud. Consular Officers interview E-2 applicants regarding the substantive contents of the application. Many of the requirements listed in 9 FAM 402.9-6(A) are all up for discussion at the interview, and no amount of clever legal drafting can save a poorly prepared applicant if he or she cannot demonstrate mastery of the business plan. Because Consular Officers live and work abroad, they may have contextual knowledge unavailable to the consultant or attorney advising an applicant. They can use that to probe the motivation of the applicant, sometimes to the applicant’s peril. The fact is, the applicant’s future can be decided during an interview in a matter of minutes, notwithstanding hours of quality legal work and business plan drafting that precedes it. Preparation for consular processing is much more important for an E-2 than an EB-5. CONSULAR OFFICERS REVIEW THE MERITS OF E-2 IN A HURRY The sheer volume of visa adjudication at consular posts, together with the turnover at consular posts can be problematic. The State Department issues an alphabet soup of visas, but the big one is the B1/B2. The Department’s Visa Office 104 EB5 INVESTORS M AGAZINE reports that in fiscal year 2017, over 9,68 million visas were adjudicated. Over 7 million of them were some combination of B1, B2, or border crossing cards. Only 43,671 E-2 visas were issued worldwide – less than 0.5 percent of the total. When I served as a U.S. Consular Officer in Bogota between 2010 to 2012, the post routinely processed 2,500 visas per day, distributed among 15-20 “line officers.” Consequently, 100-130 interviews per officer per day was the norm. The vast majority were B1/B2 visas. According to the Visa Office, not much has changed. In fiscal year 2017, some 346,775 nonimmigrant visas were issued at Bogota, of which only 524 were E-1 or E-2s and their derivatives. Applications outside the norm are not always welcome additions to a Consular Officer’s workload. The adjudication of an E-2 visa can be a major inconvenience for a Consular