Additional Comment on “ Proposed Changes to USCIS’s Processing of EB-5 Cases”“Proposed Step 3: Enhanced Decision Process f...
(D) Appeal filed by Service officer in case within jurisdiction of Board. If an appeal is        filed by a Service office...
(2) The final order may also require the respondent to participate in, and comply with           the terms [of, one] of th...
(1) compel agency action unlawfully withheld or unreasonably delayed; and       (2) hold unlawful and set aside agency act...
may deny the application or petition for lack of initial evidence or for ineligibility or        request that the missing ...
(2) Decision about oral argument. The Service has sole authority to grant or                deny a request for oral argume...
28 CFR § 68.9 Responsive pleadings—answer.        (a) Time for answer. Within thirty (30) days after the service of a comp...
(b) A prehearing statement shall state the name of the party or parties on whose        behalf it is presented and shall b...
(2) At the conference, the following matters may be considered:                             (i) The simplification of issu...
28 CFR § 68.38 Motion for summary decision.           (a) A complainant, not fewer than thirty (30) days after receipt by ...
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2nd eb 5 procedural proposal comment 06-02-2011 jw

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Comments on USCIS EB-5 Proposal.

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2nd eb 5 procedural proposal comment 06-02-2011 jw

  1. 1. Additional Comment on “ Proposed Changes to USCIS’s Processing of EB-5 Cases”“Proposed Step 3: Enhanced Decision Process for I-924 Applications, with Option for In-Person or Telephonic InterviewUSCIS proposes to have an expert I-924 Decision Board render decisions in I-924 applications.The Board will be composed of a USCIS economist and two USCIS adjudicators, and will besupported by legal counsel. The Board will receive a case for disposition from the SpecializedIntake Team, and the Board’s first step in each case will be to approve the I-924, to route the I-924 back to the intake team for a Request for Evidence (―RFE‖), or to issue the applicant aNotice of Intent to Deny (―NOID‖). If the Board issues a NOID, it will offer the applicant theopportunity to have an in-person or a telephonic interview with the Board to inform its finaldecision. If an applicant believes an RFE has been issued unnecessarily and the application isready for adjudication, the applicant can request the issuance of a NOID for the purpose ofobtaining an interview. The Board will audiotape or otherwise memorialize the interviews for therecord. The Board will then ultimately approve or deny the I-924. I-924 approval letters willclearly identify whether the case was approved as an ―actual‖ or ―exemplar‖ application.Business plans, economic analysis, and I-526 documentation approved in an ―actual‖ I-924application, if unchanged, will be given deference in the filing of associated I-526 petitions, andsuch petitions will be eligible for accelerated target processing times and for PPS.‖I am curious about the [due] process and procedures that will be employed by the new ―Board‖and suggest considering these aspects: I. An expert I-924 Decision Board, consisting of a USCIS economist and two USCIS adjudicators and supported by legal counsel, will receive a case for disposition from the Specialized Intake Team and will ultimately approve or deny the I-924. [Can or will the Specialized Intake Team be considered a ―party‖ when it ―advocates‖ for denial of the proposal for Regional Center Designation? Would it or its leader have a role in any ―interview‖ or hearing on the merits of the proposal?] A. Certain existing USCIS regulations could be used as models for certain aspects of the procedures to be followed by this new ―Decision Board‖. 8 CFR § 103.3 Denials, appeals, and precedent decisions. (a)(1)(iii) ***** (B) Meaning of affected party. For purposes of this section and §§103.4 and 103.5 of this part, affected party (in addition to the Service) means the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition. An affected party may be represented by an attorney or representative in accordance with part 292 of this chapter. (C) Record of proceeding. An appeal and any cross-appeal or briefs become part of the record of proceeding.2nd EB-5 Procedures Comment by Joseph P. Whalen June 2, 2011 Page 1
  2. 2. (D) Appeal filed by Service officer in case within jurisdiction of Board. If an appeal is filed by a Service officer, a copy must be served on the affected party. B. The procedures followed by ALJ’s within EOIR’s OCAHO rather than the BIA would be a better model to follow in crafting certain procedures for this new ―Decision Board‖ for other aspects. As an example, and assuming that an interview or hearing is held: 28 CFR § 68.52 Final order of the Administrative Law Judge. [Substitute “?Decision Board?” for Administrative law Judge.] (a) Proposed final order. (1) Within twenty (20) days of filing of the transcript of the testimony, or within such additional time as the Administrative Law Judge may allow, the Administrative Law Judge may require the parties to file proposed findings of fact, conclusions of law, and orders, together with supporting briefs expressing the reasons for such proposals. Such proposals and briefs shall be served on all parties and shall refer to all portions of the record and to all authorities relied upon in support of each proposal. (2) The Administrative Law Judge may, by order, require that when a proposed order is filed for the Administrative Law Judges consideration, the filing party shall submit to the Administrative Law Judge a copy of the proposed order on a 3.5&inch; microdisk. (b) Entry of final order. Unless an extension of time is given by the Chief Administrative Hearing Officer for good cause, the Administrative Law Judge shall enter the final order within sixty (60) days after receipt of the hearing transcript or of post-hearing briefs, proposed findings of fact, and conclusions of law, if any, by the Administrative Law Judge. The final order entered by the Administrative Law Judge shall be based upon the whole record. It shall be supported by reliable and probative evidence. The standard of proof shall be by a preponderance of the evidence. C. Contents of final order with respect to Designation as a Regional Center. Various existing regulations, such as those found at 28 CFR § 68.52 (c), (d), and (e), for example all start out something like this: (1) If, upon the preponderance of the evidence, the Administrative Law Judge determines that a person or entity named in the... [application has demonstrated eligibility for....] [NOTE: These regulations date from 1999, at least, and already codified the preponderance standard BUT is that the right standard for the I-924?]2nd EB-5 Procedures Comment by Joseph P. Whalen June 2, 2011 Page 2
  3. 3. (2) The final order may also require the respondent to participate in, and comply with the terms [of, one] of the pilot programs set forth in [...this part can be swapped for the pertinent statute...Pub. L. 104–208, Div. C, sections 401–05, 110 Stat. 3009, 3009–655 to 3009–665 (1996) (codified at 8 U.S.C. 1324a (note))], with respect to the [...this part can be changed to the applicant’s rights and responsibilities as a Regional Center... respondents hiring or recruitment or referral of individuals in a state (as defined in section 101(a)(36) of the INA) covered by such a program.] [As an aside, is USCIS set on the name of this decision-making body? How about having a naming ―contest‖ (with no prize) amongst, or a request for suggestions from, EB-5 stakeholders?] II. Step 3 says that if the ―Board‖ issues a NOID, it will offer the applicant the opportunity to have an in-person or a telephonic interview with the Board to inform its final decision. [The use of the word: will, seems to be a mistake. Perhaps it should be changed to ―may‖ instead. Also, allowing any RFE to be challenged in order to get a NOID and an interview without specific prerequisite conditions would be abused.] A. Will USCIS establish underlying criteria or threshold minimum prima facie eligibility requirements before it will offer or consent to an interview or ―hearing‖ with the I- 924 Decision Board? B. As a model for crafting procedures as to whether or not to afford an interview or ―hearing on the merits‖ of the I-924 application, certain existing USCIS (AAO) and DOJ (OCAHO) regulations can be helpful. Not every I-924 will deserve an interview or hearing, and others may just need some back-and-forth in the form of written briefs and/or additional evidence or explanations. Yet others may eventually deserve an interview or hearing but only after sufficiently building the written record. C. The following existing regulations may be of some use in denying a weak proposal outright or make an applicant support the request for a hearing. While the existing regulations are a bit too anal for the purpose, some flexibility is there and if used with appropriate discretion, can serve as a basis for the new ―due process‖ procedures and/or regulations for the newest and most complex USCIS application. As long as USCIS crafts its commensurate new policies, procedures and any new regulations to withstand the basic challenges available under the Administrative Procedures Act (APA), it should be OK. 5 USC § 706 Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--2nd EB-5 Procedures Comment by Joseph P. Whalen June 2, 2011 Page 3
  4. 4. (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be-- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.) 8 CFR § 103.2 Applications, petitions, and other documents. (b) Evidence and processing ..... ***** (8) Request for Evidence; Notice of Intent to Deny — (i) Evidence of eligibility or ineligibility. If the evidence submitted with the application or petition establishes eligibility, USCIS will approve the application or petition, except that in any case in which the applicable statute or regulation makes the approval of a petition or application a matter entrusted to USCIS discretion, USCIS will approve the petition or application only if the evidence of record establishes both eligibility and that the petitioner or applicant warrants a favorable exercise of discretion. If the record evidence establishes ineligibility, the application or petition will be denied on that basis. (ii) Initial evidence. If all required initial evidence is not submitted with the application or petition or does not demonstrate eligibility, USCIS in its discretion2nd EB-5 Procedures Comment by Joseph P. Whalen June 2, 2011 Page 4
  5. 5. may deny the application or petition for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS. (iii) Other evidence. If all required initial evidence has been submitted but the evidence submitted does not establish eligibility, USCIS may: deny the application or petition for ineligibility; request more information or evidence from the applicant or petitioner, to be submitted within a specified period of time as determined by USCIS; or notify the applicant or petitioner of its intent to deny the application or petition and the basis for the proposed denial, and require that the applicant or petitioner submit a response within a specified period of time as determined by USCIS. (iv) Process. A request for evidence or notice of intent to deny will be in writing and will specify the type of evidence required, and whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond. The request for evidence or notice of intent to deny will indicate the deadline for response, but in no case shall the maximum response period provided in a request for evidence exceed twelve weeks, nor shall the maximum response time provided in a notice of intent to deny exceed thirty days. Additional time to respond to a request for evidence or notice of intent to deny may not be granted. 8 CFR § 103.3 Denials, appeals, and precedent decisions. (a)(1) ***** (v) Summary dismissal. An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. The filing by an attorney or representative accredited under 8 CFR 292.2(d) of an appeal which is summarily dismissed under this section may constitute frivolous behavior as defined in 8 CFR 292.3(a)(15). Summary dismissal of an appeal under §103.3(a)(1)(v) in no way limits the other grounds and procedures for disciplinary action against attorneys or representatives provided in 8 CFR 292.2 or in any other statute or regulation. ***** (b) Oral argument regarding appeal before AAU — (1) Request. If the affected party desires oral argument, the affected party must explain in writing specifically why oral argument is necessary. For such a request to be considered, it must be submitted within the time allowed for meeting other requirements.2nd EB-5 Procedures Comment by Joseph P. Whalen June 2, 2011 Page 5
  6. 6. (2) Decision about oral argument. The Service has sole authority to grant or deny a request for oral argument. Upon approval of a request for oral argument, the AAU shall set the time, date, place, and conditions of oral argument. III. The concept of considering the merits of a case through inviting, allowing, and considering competing briefs and the replies thereto is nothing new in courts or in administrative proceedings. Rendering a decision based on the pleadings and issuing summary decisions is used all the time. An actual Hearing should be a last resort to hammer out finer points but only if absolutely necessary. 28 CFR § 68.2 defines the key document needed in this process in this way: Pleading means the complaint, motions, the answer thereto, any supplement or amendment thereto, and reply that may be permitted to any answer, supplement, or amendment submitted to the Administrative Law Judge or, when no judge is assigned, the Chief Administrative Hearing Officer; 28 CFR § 68.19 Written interrogatories to parties. (a) Any party may serve upon any other party written interrogatories to be answered in writing by the party served, or if the party served is a public or private corporation or a partnership or association or governmental agency, by any authorized officer or agent, who shall furnish such information as is available to the party. A copy of the interrogatories shall be served on all parties to the proceeding. (b) Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless it is objected to, in which event the reasons of objection shall be stated in lieu of an answer. The answers and objections shall be signed by the person making them. The party upon whom the interrogatories were served shall serve a copy of the answer or objections upon all parties to the proceeding within thirty (30) days after service of the interrogatories, or within such shorter or longer period as the Administrative Law Judge upon motion may allow. (c) An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the Administrative Law Judge may upon motion order that such an interrogatory need not be answered until after designated discovery has been completed or until a prehearing conference or other later time. (d) A person or entity upon whom interrogatories are served may respond by the submission of business records, indicating to which interrogatory the documents respond, if they are sufficient to answer said interrogatories. [54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534–91, 56 FR 50053, Oct. 3, 1991]2nd EB-5 Procedures Comment by Joseph P. Whalen June 2, 2011 Page 6
  7. 7. 28 CFR § 68.9 Responsive pleadings—answer. (a) Time for answer. Within thirty (30) days after the service of a complaint, each respondent shall file an answer. (b) Default. Failure of the respondent to file an answer within the time provided may be deemed to constitute a waiver of his or her right to appear and contest the allegations of the complaint. The Administrative Law Judge may enter a judgment by default. (c) Answer. Any respondent contesting any material fact alleged in a complaint, or contending that the amount of a proposed penalty or award is excessive or inappropriate, or contending that he or she is entitled to judgment as a matter of law, shall file an answer in writing. The answer shall include: (1) A statement that the respondent admits, denies, or does not have and is unable to obtain sufficient information to admit or deny each allegation; a statement of lack of information shall have the effect of a denial (any allegation not expressly denied shall be deemed to be admitted); and (2) A statement of the facts supporting each affirmative defense. (d) Reply. Complainants may file a reply responding to each affirmative defense asserted. (e) Amendments and supplemental pleadings. If a determination of a controversy on the merits will be facilitated thereby, the Administrative Law Judge may, upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, allow appropriate amendments to complaints and other pleadings at any time prior to the issuance of the Administrative Law Judges final order based on the complaint. When issues not raised by the pleadings are reasonably within the scope of the original complaint and are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings, and such amendments may be made as necessary to make the pleading conform to the evidence. The Administrative Law Judge may, upon reasonable notice and such terms as are just, permit supplemental pleadings setting forth transactions, occurrences, or events that have occurred or new law promulgated since the date of the pleadings and which are relevant to any of the issues involved. [Order No. 2203–99, 64 FR 7075, Feb. 12, 1999] 28 CFR § 68.12 Prehearing statements. (a) At any time prior to the commencement of the hearing, the Administrative Law Judge may order any party to file a prehearing statement of position.2nd EB-5 Procedures Comment by Joseph P. Whalen June 2, 2011 Page 7
  8. 8. (b) A prehearing statement shall state the name of the party or parties on whose behalf it is presented and shall briefly set forth the following matters, unless otherwise ordered by the Administrative Law Judge: (1) Issues involved in the proceedings; (2) Facts stipulated to together with a statement that the party or parties have communicated or conferred in a good faith effort to reach stipulation to the fullest extent possible; (3) Facts in dispute; (4) Witnesses, except to the extent that disclosure would be privileged, and exhibits by which disputed facts will be litigated; (5) A brief statement of applicable law; (6) The conclusions to be drawn; (7) The estimated time required for presentation of the partys or parties case; and (8) Any appropriate comments, suggestions, or information which might assist the parties or the Administrative Law Judge in preparing for the hearing or otherwise aid in the disposition of the proceeding. [54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534–91, 56 FR 50053, Oct. 3, 1991] 28 CFR § 68.13 Conferences. (a) Purpose and scope. (1) Upon motion of a party or in the Administrative Law Judges discretion, the judge may direct the parties or their counsel to participate in a prehearing conference at any reasonable time prior to the hearing, or in a conference during the course of the hearing, when the Administrative Law Judge finds that the proceeding would be expedited by such a conference. Prehearing conferences normally shall be conducted by conference telephonic communication unless, in the opinion of the Administrative Law Judge, such method would be impractical, or when such conferences can be conducted in a more expeditious or effective manner by correspondence or personal appearance. Reasonable notice of the time, place, and manner of the prehearing conference shall be given.2nd EB-5 Procedures Comment by Joseph P. Whalen June 2, 2011 Page 8
  9. 9. (2) At the conference, the following matters may be considered: (i) The simplification of issues; (ii) The necessity of amendments to pleadings; (iii) The possibility of obtaining stipulations of facts and of the authenticity, accuracy, and admissibility of documents, which will avoid unnecessary proof; (iv) The limitations on the number of expert or other witnesses; (v) Negotiation, compromise, or settlement of issues; (vi) The exchange of copies of proposed exhibits; (vii) The identification of documents or matters of which official notice may be requested; (viii) A schedule to be followed by the parties for completion of the actions decided at the conference; and (ix) Such other matters, including the disposition of pending motions, as may expedite and aid in the disposition of the proceeding. (b) Reporting. A verbatim record of the conference will not be kept unless directed by the Administrative Law Judge. (c) Order. Actions taken as a result of a conference shall be reduced to a written order, unless the Administrative Law Judge concludes that a stenographic report shall suffice, or, if the conference takes place within seven (7) days of the beginning of the hearing, the Administrative Law Judge elects to make a statement on the record at the hearing summarizing the actions taken. [54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534–91, 56 FR 50053, Oct. 3, 1991] TITLE 28--Judicial Administration1 CHAPTER I--DEPARTMENT OF JUSTICE PART 68--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD1 http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title28/28cfr68_main_02.tpl2nd EB-5 Procedures Comment by Joseph P. Whalen June 2, 2011 Page 9
  10. 10. 28 CFR § 68.38 Motion for summary decision. (a) A complainant, not fewer than thirty (30) days after receipt by respondent of the complaint, may move with or without supporting affidavits for summary decision on all or any part of the complaint. Motions by any party for summary decision on all or any part of the complaint will not be entertained within the twenty (20) days prior to any hearing, unless the Administrative Law Judge decides otherwise. Any other party, within ten (10) days after service of a motion for summary decision, may respond to the motion by serving supporting or opposing papers with affidavits, if appropriate, or countermove for summary decision. The Administrative Law Judge may set the matter for argument and/or call for submission of briefs. (b) Any affidavits submitted with the motion shall set forth such facts as would be admissible in evidence in a proceeding subject to 5 U.S.C. 556 and 557 and shall show affirmatively that the affiant is competent to testify to the matters stated therein. When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of such pleading. Such response must set forth specific facts showing that there is a genuine issue of fact for the hearing. (c) The Administrative Law Judge shall enter a summary decision for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision. (d) Form of summary decisions. Any final order entered as a summary decision shall conform to the requirements for all final orders. A final order made under this section shall include a statement of: (1) Findings of fact and conclusions of law, and the reasons therefor, on all issues presented; and (2) Any terms and conditions of the final order. (e) Hearings on issue of fact. Where a genuine question of material fact is raised, the Administrative Law Judge shall set the case for an evidentiary hearing. [Order No. 2203–99, 64 FR 7078, Feb. 12, 1999]2nd EB-5 Procedures Comment by Joseph P. Whalen June 2, 2011 Page 10

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