In our April 1998 issue we wrote about an Immigration and Naturalization Service General Counsel memorandum that drastically curtailed the types of investments eligible for the EB-5 Investor green card. As a result of the issuance of the memo, the INS put a freeze on processing of EB-5 cases that fall under the General Counsel memo. That freeze was recently lifted and the INS has issued instructions on withdrawing filed EB-5 petitions and refiling news petitions in their places.

EB-5 petitioners may withdraw a clearly identified petition from the "hold" and file a new petition in it place with a special unit at the California Service Center called the "tiger team." To do this, a petitioner must forward the new petition and the request for withdrawal, clearly marked in red marker "HOLD WITHDRAWAL" to the California Service Center by August 31 (the time was recently extended from July 31st). The CSC's address is 24000 Avila Road, 2nd floor (PO Box 10526), Laguna Niguel, California 92607.

The INS will process the new petitions in the order of the date received and cases not withdrawn will be kept in a separate queue. Cases clearly approvable will be approved by the "tiger team." Where additional evidence is needed, the "tiger team" will issue a Request for Evidence and direct the petitioner to submit the evidence to the INS Regional Service Center having jurisdiction over the new commercial enterprise and the file will be forwarded on to that Service Center.

After August 31st, the special withdrawal and refiling process will not be available. Withdrawing and refiling can be achieved through normal procedures. That means that after August 31st, new petitions would be filed with the INS Service Center with jurisdiction over the new business.

The INS believes the "tiger team" will be able to adjudicate cases in the hold in just 30 days. However, should this turnaround estimate not be met, cases still pending with the "tiger team" will be sent back to the INS Service Centers with appropriate jurisdiction.

The American Immigration Lawyers Association has recently sent the INS a letter asking them several questions relating to the guidance including the question of whether refilings will affect one's ability to continue being grandfathered under the recently expired Section 245i of the Immigration and Nationality Act.

Questions on these procedures can be directed to Katherine Lorr of the INS at 202-514-5014.