3rd comment on OMB 1615-0061 form I-924 (9-4-12)


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This is my 3rd and last comment for this I-924 comment request.

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3rd comment on OMB 1615-0061 form I-924 (9-4-12)

  1. 1. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924 Comparing Apples To Apples –USCIS Approved and Designated IndependentCredentialing Organizations For Immigrant Healthcare Workers Vs. Regional CentersFor Immigrant Investors and Entrepreneurs By Joseph P. Whalen (September 4, 2012)I am an advocate for consistency and for the general improvement in adjudicationsfor benefits requests and requests for relief under the Immigration and NationalityAct (INA) and related laws. One area of particular interest to me is the EB-5Regional Center. USCIS and INS before it have had many “growing pains” informulating the proper approach to evaluating requests for designation as an EB-5Regional Center. After long and careful study of this area, I have come to holdsome rather strong opinions on this topic. I have had direct hands-on personalexperience adjudicating Proposals for Regional Center Designations while withUSCIS. I have continued to study and review the topic and have provided training,analysis, and deeply focused consultation to practitioners, related-topic specialists,and applicants. In the course of study and research I found that the closestcomparable adjudication to the USCIS Form I-924 performed by the agency is theadjudication of Form I-905.The I-905, Application for Authorization to Issue Certification for Health CareWorkers, has been described by AAO as “seeking licensure to certify”.... “medicalpositions” and/or “medical professionals”. AAO has made it clear that theapplicant for that license needs to “demonstrate that its evaluators are competent tocertify the educational credentials of those medical professionals seeking suchcertifications”. They have gone on to state that “the Form I-905 requests that theapplicant "Explain [its] expertise, knowledge, and experience in the health careoccupations for which [it seeks] authorization."”I feel that the I-924, Application For Regional Center Under the ImmigrantInvestor Pilot Program could be improved by looking to the form I-905 and theAAO Administrative decision posted as Nov092006_01M4212.pdf in which itfound that the applicant for approval as an “Independent CredentialingOrganization” provided insufficient information as to its knowledge, skills, andabilities (KSAs) required for the task. AAO summed up that “[t]he applicant didnot otherwise explain its expertise, knowledge, and experience pertinent to healthcare occupations.” Page 1 of 24
  2. 2. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924I would rather just make the general suggestion that USCIS closely examine theseclosely related “licensing applications” and compare the underlying fundamentalsinvolved but I won’t leave it at that. When I have done so in the past, USCIS hasconveniently stated something along the lines of “the commenter made no specificsuggestions therefore no changes will be made based on this comment”. Well, Iwant USCIS to make some specific changes to the I-924 Form and Instructions, soI will make some very specific suggestions as follows:Under the heading: “What is the Purpose of this Form?” item #1 should beexpanded upon by adding more precise language as to the required KSAs. As anexample, I offer the following: “... A critical component of this request entails demonstrating that the applicant entity possesses the necessary knowledge, skills, and abilities (KSAs) to successfully operate the Regional Center in conformance with its legally mandated purposes. As per 8 CFR § 204.6(m)(6) “...a regional center must provide USCIS with updated information to demonstrate the regional center is continuing to promote economic growth, improved regional productivity, job creation, or increased domestic capital investment in the approved geographic area.” Therefore, the entity must present evidence that it understands its role and has the required expertise to perform its underlying functions. The preceding is in addition to the specific KSAs needed for the facilitation of the specifically desired “kinds of commercial enterprises that will receive capital from aliens” as represented by the chosen NACIS codes, in which it seeks licensure to assist EB-5 investors establish and/or invest.”As stated, the above is merely a suggestion to work from. Naturally,corresponding changes under the heading “Initial Evidence Requirements”would need to be made there. By way of example, in that I-905 AAO non-precedential Administrative Decision linked above, AAO remarked on the similartopic in that context in footnote 2, as follows: “The standards described in the instructions sheet include all of the standards listed in at 8 C.F.R. § 212.15(k)(l) - (8), set out above.”The I-905 Applicants have more guidance and so do the USCIS Adjudicators whodecide those requests. Congress was more specific and the regulations are moredeveloped. INS had considerable help from two other Departments, Education andHealth and Human Services. With EB-5, INS (now USCIS) led State. Not good. Page 2 of 24
  3. 3. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924The I-924 Applicant needs to be told their role and obligations to their EB-5investor partners as well as how to properly plan to fulfill that role. The RegionalCenter seeks licensure to provide specific services to aliens in their individualrequests for immigrant visas and to later have conditions lifted from status. TheRegional Center has responsibilities and obligations towards its various investmentpartners. USCIS is most concerned with the Regional Center’s understanding of itsspecific obligations to its EB-5 investor partners/clients. Regional Centers chargehefty fees to its EB-5 investors. I say, make them justify earning those fees!USCIS needs to closely examine the role of the Regional Centers and producepractical expectations of the services it needs to provide. Once that is sorted out,USCIS must discern basic KSAs for the Regional Centers to demonstrate and havesome baseline suggestions and parameters spelled out. I would caution againstbeing too rigid. By way of example to avoid, do not copy the “evidencepossibilities” embodied in the extraordinary ability or exceptional abilityimmigrant visa categories. Those were based in statute. The requirements forRegional Centers are much more loosely defined in the statute and the regulationsneed to be quite open-ended. That said, very broad possibilities, loosely defined arethe way to go with this. Numerous non-committal and wishy-washy possibilitiesare best. I say this because of the huge number of possibilities available under theNAICS codes. The base 2012 NAICS Codes structure encompasses well over two-thousand industry categories. There are too many potential means to satisfy theKSAs for the Regional Center applicants to be overly specific. I would stick withmaking the applicant define its own parameters and showing by comparison to thestandards accepted in that industry (or those industries) what is needed for the taskat hand. I would not make it as rigid as the Permanent Labor Cert process but thatcould serve as a basic frame of reference. I’d tell them to “Define your needs andthen show us that you have what it takes.” Perhaps OOH or something similarcan help them figure it out. Resumes, educational credentials, job descriptions,one’s curriculum vitae, lists of publications: books, blogs, or articles and thingsalong those various lines should suffice as evidence for individuals. Establishedentities might have more and different items to offer such as: annual reports,balance sheets, the ubiquitous tax returns and associated IRS “schedules” and/orSEC filings—EDGAR printouts might be available. Many possibilities exist inover two-thousand industry categories as defined in NAICS.The following pages show some of the statutes and regulations for these two formsin a side-by-side manner in order to allow an easier comparison. Page 3 of 24
  4. 4. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924 USCIS Form I-905 USCIS Form I-924 Application for Authorization to Issue Application For Regional Center Under Certification for Health Care Workers the Immigrant Investor Pilot ProgramINA § 212 [8 U.S.C. § 1182] [8 U.S.C. § 1153 Note: Pilot ImmigrationGENERAL CLASSES OF ALIENS Program]INELIGIBLE TO RECEIVE VISAS Pub. L. 102-395, title VI, Sec. 610, Oct. 6,AND INELIGIBLE FOR ADMISSION; 1992, 106 Stat. 1874, as amended...WAIVERS OF INADMISSIBILLITY § 610 PILOT IMMIGRATION PROGRAM-(a) Classes of Aliens Ineligible for Visas or (a) Of the visas otherwise available underAdmission.- section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)), theExcept as otherwise provided in this Act, Secretary of State, together with thealiens who are inadmissible under the Secretary of Homeland Security, shall setfollowing paragraphs are ineligible to aside visas for a pilot program toreceive visas and ineligible to be admitted implement the provisions of such section.to the United States: Such pilot program shall involve a regional center in the United States, designated by the Secretary of Homeland Security on the basis of a general proposal, for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a Page 4 of 24
  5. 5. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924 result of such capital investments, and the other positive economic effects such capital investments will have. *****(5) Labor certification and qualifications (c) In determining compliance withfor certain immigrants.- section 203(b)(5)(A)(iii)[(ii)] of the Immigration and Nationality Act [8 U.S.C. 1153(b)(5)(A)(iii)[(ii)]], and notwithstanding the requirements of 8 CFR 204.6, the Secretary of Homeland Security shall permit aliens admitted under the pilot program described in this section to establish reasonable methodologies for determining the number of jobs created by the pilot program, including such jobs which are estimated to have been created indirectly through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.(C) Uncertified foreign health-care INA § 203(b)(5) [8 USC § 1153(b)(5)]workers 7a/ Subject to subsection (r), anyalien who seeks to enter the United States (5) Employment creation. -for the purpose of performing labor as ahealth-care worker, other than a physician, (A) In general. - Visas shall be madeis excludable unless the alien presents to available, in a number not to exceed 7.1the consular officer, or, in the case of an percent of such worldwide level, toadjustment of status, the Attorney General, qualified immigrants seeking to enter thea certificate from the Commission on United States for the purpose of engagingGraduates of Foreign Nursing Schools, or a in a new commercial 4/ enterprisecertificate from an equivalent independent (including a limited partnership)--credentialing organization approved bythe Attorney General in consultation with (i) 4/ in which such alien has investedthe Secretary of Health and Human (after the date of the enactment of theServices, verifying that- Immigration Act of 1990) or, is actively in the process of investing, capital in an Page 5 of 24
  6. 6. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924(i) the aliens education, training, license, amount not less than the amount specifiedand experience- in subparagraph (C), and(I) meet all applicable statutory and (ii) 4/ which will benefit the Unitedregulatory requirements for entry into the States economy and create full-timeUnited States under the classification employment for not fewer than 10specified in the application; United States citizens or aliens lawfully admitted for permanent residence or other(II) are comparable with that required for immigrants lawfully authorized to bean American health-care worker of the employed in the United States (other thansame type; and the immigrant and the immigrants spouse, sons, or daughters).(III) are authentic and, in the case of alicense, unencumbered; (B) Set-aside for targeted employment areas.-(ii) the alien has the level of competence inoral and written English considered by the (i) In general. - Not less than 3,000 of theSecretary of Health and Human Services, visas made available under this paragraphin consultation with the Secretary of in each fiscal year shall be reserved forEducation, to be appropriate for health care qualified immigrants who 4/ invest in awork of the kind in which the alien will be new commercial enterprise described inengaged, as shown by an appropriate score subparagraph (A) which will createon one or more nationally recognized, employment in a targeted employmentcommercially available, standardized area.assessments of the applicants ability tospeak and write; and (ii) Targeted employment area defined. - In this paragraph, the term ``targeted(iii) if a majority of States licensing the employment area means, at the time ofprofession in which the alien intends to the investment, a rural area or an areawork recognize a test predicting the success which has experienced highon the professions licensing or certification unemployment (of at least 150 percent ofexamination, the alien has passed such a the national average rate).test, or has passed such an examination. (iii) Rural area defined. - In thisFor purposes of clause (ii), determination paragraph, the term ``rural area meansof the standardized tests required and of the any area other than an area within aminimum scores that are appropriate are metropolitan statistical area or within thewithin the sole discretion of the Secretary outer boundary of any city or town havingof Health and Human Services and are not a population of 20,000 or more (based on Page 6 of 24
  7. 7. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924subject to further administrative or judicial the most recent decennial census of thereview. United States). (C) Amount of capital required. - (i) In general. - Except as otherwise provided in this subparagraph, the amount of capital required under subparagraph (A) shall be $1,000,000. The Attorney General, in consultation with the Secretary of Labor and the Secretary of State, may from time to time prescribe regulations increasing the dollar amount specified under the previous sentence. (ii) Adjustment for targeted employment areas.- The Attorney General may, in the case of investment made in a targeted employment area, specify an amount of capital required under subparagraph (A) that is less than (but not less than 1/2 of) the amount specified in clause (i). (iii) Adjustment for high employment areas.-In the case of an investment made in a part of a metropolitan statistical area that at the time of the investment - (I) is not a targeted employment area, and (II) is an area with an unemployment rate significantly below the national average unemployment rate, the Attorney General may specify an amount of capital required under subparagraph (A) that is greater than (but not greater than 3 times) the amount specified in clause (I). (D) 4/ Full-time employment defined.-- Page 7 of 24
  8. 8. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924 In this paragraph, the term `full-time employment means employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position.FN 7a Section 4(a)(2) of Public Law106-95, dated November 12, 1999,amended section 212(a)(5)(C) of theImmigration and Nationality Act.33/ (r) Subsection (a)(5)(C) shall not apply INA § 216A [8 U.S.C. § 1186b]to an alien who seeks to enter the United CONDITIONAL PERMANENTStates for the purpose of performing labor RESIDENT STATUS FOR CERTAINas a nurse who presents to the consular ALIEN ENTREPRENEURS,officer (or in the case of an adjustment of SPOUSED, AND CHILDRENstatus, the Attorney General) a certifiedstatement from the Commission on (a) In general.-Graduates of Foreign Nursing Schools (oran equivalent independent credentialing (1) Conditional basis for status.-organization approved for the certification Notwithstanding any other provision ofof nurses under subsection (a)(5)(C) by the this Act, an alien entrepreneur (as definedAttorney General in consultation with the in subsection (f)(1)), alien spouse, andSecretary of Health and Human Services) alien child (as defined in subsection (f)(2))that-- shall be considered, at the time of obtaining the status of an alien lawfully(1) the alien has a valid and unrestricted admitted for permanent residence, to havelicense as a nurse in a State where the alien obtained such status on a conditional basisintends to be employed and such State subject to the provisions of this section.verifies that the foreign licenses of aliennurses are authentic and unencumbered; *****(2) the alien has passed the National (b) Termination of status if finding thatCouncil Licensure Examination (NCLEX); qualifying entrepreneurship improper.-(3) the alien is a graduate of a nursing (1) In general.-In the case of an alienprogram-- entrepreneur with permanent resident status on a conditional basis under(A) in which the language of instruction subsection (a), if the Attorney General Page 8 of 24
  9. 9. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924was English; determines, before the second anniversary of the aliens obtaining the status of lawful(B) located in a country-- admission for permanent residence, that-(i) designated by such commission not later (A) the investment in 1/ the commercialthan 30 days after the date of the enactment enterprise was intended solely as a meansof the Nursing Relief for Disadvantaged of evading the immigration laws of theAreas Act of 1999, based on such United States,commissions assessment that the quality ofnursing education in that country, and the (B) (i) 1/ the alien did not invest, or wasEnglish language proficiency of those who not actively in the process of investing, thecomplete such programs in that country, requisite capital; orjustify the countrys designation; or (ii) 1/ the alien was not sustaining the(ii) designated on the basis of such an actions described in clause (i) throughoutassessment by unanimous agreement of the period of the aliens residence in thesuch commission and any equivalent United States; orcredentialing organizations which havebeen approved under subsection (a)(5)(C) (C) the alien was otherwise notfor the certification of nurses under this conforming to the requirements ofsubsection; and section 203(b)(5) , then the Attorney General shall so notify the alien involved(C) and, subject to paragraph (2), shall(i) which was in operation on or before the terminate the permanent resident status ofdate of the enactment of the Nursing Relief the alien (and the alien spouse and alienfor Disadvantaged Areas Act of 1999; or child) involved as of the date of the determination.(ii) has been approved by unanimousagreement of such commission and any (2) Hearing in removal proceeding.-Anyequivalent credentialing organizations alien whose permanent resident status iswhich have been approved under terminated under paragraph (1) maysubsection (a)(5)(C) for the certification of request a review of such determination innurses under this subsection. a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met. Page 9 of 24
  10. 10. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924FN 33 Section 4(a)(1) of Public Law (d) Details of Petition and Interview.-106-95, dated November 12, 1999,amended section 212 of the Immigration (1) 2/ Contents of petition.--Each petitionand Nationality Act by adding a new under subsection (c)(1)(A) shall containsubsection (r). facts and information demonstrating that the alien (A)(i) invested, or is actively in the process of investing, the requisite capital; and (ii) sustained the actions described in clause (i) throughout the period of the aliens residence in the United States; and (B) is otherwise conforming to the requirements of section 203(b)(5) .8 CFR § 212.15 Certificates for foreign 8 CFR § 204.6 Petitions for employmenthealth care workers. creation aliens.(k) Standards for credentialing (m) Immigrant Investor Pilot Program —organizations. The DHS will evaluateorganizations, including CGFNS, seeking (1) Scope. The Immigrant Investor Pilotto obtain approval from the DHS to issue Program is established solely pursuant tocertificates for health care workers, or the provisions of section 610 of thecertified statements for nurses. Any Departments of Commerce, Justice, andorganization meeting the standards set forth State, the Judiciary, and Related Agenciesin paragraph (k)(1) of this section can be Appropriation Act, and subject to alleligible for authorization to issue conditions and restrictions stipulated incertificates. While CGFNS has been that section. Except as provided herein,specifically listed in the statute as an entity aliens seeking to obtain immigrationauthorized to issue certificates, it is not benefits under this paragraph continue toexempt from governmental oversight. All be subject to all conditions and restrictionsorganizations will be reviewed, including set forth in section 203(b)(5) of the ActCGFNS, to guarantee that they continue to and this section.meet the standards required of all certifyingorganizations, under the following: Page 10 of 24
  11. 11. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924(1) Structure of the organization. (3) Requirements for regional centers. Each regional center wishing to(i) The organization shall be incorporated participate in the Immigrant Investor Pilotas a legal entity. Program shall submit a proposal to the Assistant Commissioner for(ii) Adjudications, which:(A) The organization shall be independentof any organization that functions as a (i) Clearly describes how the regionalrepresentative of the occupation or center focuses on a geographical region ofprofession in question or serves as or is the United States, and how it will promoterelated to a recruitment/placement economic growth through increased exportorganization. sales, improved regional productivity, job creation, and increased domestic capital(B) The DHS shall not approve an investment;organization that is unable to renderimpartial advice regarding an individuals (ii) Provides in verifiable detail how jobsqualifications regarding training, will be created indirectly throughexperience, and licensure. increased exports;(C) The organization must also be (iii) Provides a detailed statementindependent in all decision making matters regarding the amount and source of capitalpertaining to evaluations and/or which has been committed to the regionalexaminations that it develops including, but center, as well as a description of thenot limited to: policies and procedures; promotional efforts taken and planned byeligibility requirements and application the sponsors of the regional center;processing; standards for grantingcertificates and their renewal; examination (iv) Contains a detailed predictioncontent, development, and administration; regarding the manner in which theexamination cut-off scores, excluding those regional center will have a positive impactpertaining to English language on the regional or national economy inrequirements; grievance and disciplinary general as reflected by such factors asprocesses; governing body and committee increased household earnings, greatermeeting rules; publications about demand for business services, utilities,qualifying for a certificate and its renewal; maintenance and repair, and constructionsetting fees for application and all other both within and without the regionalservices provided as part of the screening center; andprocess; funding, spending, and budgetauthority related to the operation of the (v) Is supported by economically or Page 11 of 24
  12. 12. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924certification organization; ability to enter statistically valid forecasting tools,into contracts and grant arrangements; including, but not limited to, feasibilityability to demonstrate adequate staffing and studies, analyses of foreign and domesticmanagement resources to conduct the markets for the goods or services to beprogram(s) including the authority to exported, and/or multiplier tables.approve selection of, evaluate, and initiatedismissal of the chief staff member.(D) An organization whose fees are basedon whether an applicant receives a visa 8 CFR § 216.6 Petition bymay not be approved. entrepreneur to remove conditional basis of lawful permanent resident(iii) The organization shall include the status.following representation in the portion ofits organization responsible for overseeing (a) Filing the petition —certification and, where applicable,examinations: (1) General procedures. A petition to remove the conditional basis of the(A) Individuals from the same health care permanent resident status of an aliendiscipline as the alien health care worker accorded conditional permanent residencebeing evaluated who are eligible to practice pursuant to section 203(b)(5) of the Actin the United States; and must be filed by the alien entrepreneuron Form I–829, Petition by Entrepreneur to(B) At least one voting public member to Remove Conditions. The alienrepresent the interests of consumers and entrepreneur must file Form I–829 withinprotect the interests of the public at large. the 90-day period preceding the secondThe public member shall not be a member anniversary of his or her admission to theof the discipline or derive significant United States as a conditional permanentincome from the discipline, its related resident. Before Form I–829 may beorganizations, or the organization issuing considered as properly filed, it must bethe certificate. accompanied by the fee required under §103.7(b)(1) of this chapter, and by(iv) The organization must have a balanced documentation as described in paragraphrepresentation such that the individuals (a)(4) of this section, and it must befrom the same health care discipline, the properly signed by the alien. Upon receiptvoting public members, and any other of a properly filed Form I–829, the aliensappointed individuals have an equal say in conditional permanent resident status shallmatters relating to credentialing and/or be extended automatically, if necessary,examinations. until such time as the director has adjudicated the petition. The Page 12 of 24
  13. 13. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924 entrepreneurs spouse and children should(v) The organization must select be included in the petition to removerepresentatives of the discipline using one conditions. Children who have reached theof the following recommended methods, or age of twenty-one or who have marrieddemonstrate that it has a selection process during the period of conditional permanentthat meets the intent of these methods: residence and the former spouse of an entrepreneur, who was divorced from the(A) Be selected directly by members of the entrepreneur during the period ofdiscipline eligible to practice in the United conditional permanent residence, may beStates; included in the alien entrepreneurs petition or may file a separate petition.(B) Be selected by members of amembership organization representing the (2) [Reserved]discipline or by duly electedrepresentatives of a membership (3) Physical presence at time of filing. Aorganization; or petition may be filed regardless of whether the alien is physically present in the(C) Be selected by a membership United States. However, if the alien isorganization representing the discipline outside the United States at the time offrom a list of acceptable candidates filing, he or she must return to the Unitedsupplied by the credentialing body. States, with his or her spouse and children, if necessary, to comply with the interview(vi) The organization shall use formal requirements contained in the Act. Onceprocedures for the selection of members of the petition has been properly filed, thethe governing body that prohibit the alien may travel outside the United Statesgoverning body from selecting a majority and return if in possession ofof its successors. Not-for-profit documentation as set forth in §211.1(b)(1)corporations which have difficulty meeting of this chapter, provided the alienthis requirement may provide in their complies with the interview requirementsapplications evidence that the organization described in paragraph (b) of this section.is independent, and free of material An alien who is not physically present inconflicts of interest regarding whether an the United States during the filing periodalien receives a visa. but subsequently applies for admission to the United States shall be processed in(vii) The organization shall be separate accordance with §235.11 of this chapter.from the accreditation and educationalfunctions of the discipline, except for those (4) Documentation. The petition forentities recognized by the Department of removal of conditions must beEducation as having satisfied the accompanied by the following evidence: Page 13 of 24
  14. 14. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924requirement of independence. (i) Evidence that a commercial enterprise was established by the alien. Such(viii) The organization shall publish and evidence may include, but is not limitedmake available a document which clearly to, Federal income tax returns;defines the responsibilities of theorganization and outlines any other (ii) Evidence that the alien invested or wasactivities, arrangements, or agreements of actively in the process of investing thethe organization that are not directly related requisite capital. Such evidence mayto the certification of health care workers. include, but is not limited to, an audited financial statement or other probative(2) Resources of the organization. evidence; and(i) The organization shall demonstrate that (iii) Evidence that the alien sustained theits staff possess the knowledge and skills actions described in paragraph (a)(4)(i)necessary to accurately assess the and (a)(4)(ii) of this section throughout theeducation, work experience, licensure of period of the aliens residence in thehealth care workers, and the equivalence of United States. The alien will be consideredforeign educational institutions, to have sustained the actions required forcomparable to those of United States- removal of conditions if he or she has, intrained health care workers and institutions. good faith, substantially met the capital investment requirement of the statute and(ii) The organization shall demonstrate the continuously maintained his or her capitalavailability of financial and material investment over the two years ofresources to effectively and thoroughly conditional residence. Such evidence mayconduct regular and ongoing evaluations on include, but is not limited to, bankan international basis. statements, invoices, receipts, contracts, business licenses, Federal or(iii) If the health care field is one for which State income tax returns, and Federal ora majority of the states require a predictor State quarterly tax statements.test, the organization shall demonstrate theability to conduct examinations in those (iv) Evidence that the alien created or cancountries with educational and evaluation be expected to create within a reasonablesystems comparable to the majority of time ten full-time jobs for qualifyingstates. employees. In the case of a “troubled business” as defined in 8 CFR(iv) The organization shall have the 204.6(j)(4)(ii), the alien entrepreneur mustresources to publish and make available submit evidence that the commercialgeneral descriptive materials on the enterprise maintained the number ofprocedures used to evaluate and validate existing employees at no less than the pre- investment level for the period following Page 14 of 24
  15. 15. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924credentials, including eligibility his or her admission as a conditionalrequirements, determination procedures, permanent resident. Such evidence mayexamination schedules, locations, fees, include payroll records, relevant taxreporting of results, and disciplinary and documents, and Forms I–9.grievance procedures. (5) Termination of status for failure to file(3) Candidate evaluation and testing petition. Failure to properly file Form I–mechanisms. 829 within the 90-day period immediately preceding the second anniversary of the(i) The organization shall publish and make date on which the alien obtained lawfulavailable a comprehensive outline of the permanent residence on a conditional basisinformation, knowledge, or functions shall result in the automatic termination ofcovered by the evaluation/examination the aliens permanent resident status andprocess, including information regarding the initiation of deportation proceedings.testing for English language competency. The director shall send a written notice of termination and an order to show cause to(ii) The organization shall use reliable an alien entrepreneur who fails to timelyevaluation/examination mechanisms to file a petition for removal of conditions.evaluate individual credentials and No appeal shall lie from this decision;competence that is objective, fair to all however, the alien may request a review ofcandidates, job related, and based on the determination during deportationknowledge and skills needed in the proceedings. In deportation proceedings,discipline. the burden of proof shall rest with the alien to show by a preponderance of the(iii) The organization shall conduct evidence that he or she complied with theongoing studies to substantiate the requirement to file the petition within thereliability and validity of the designated period. The director may deemevaluation/examination mechanisms. the petition to have been filed prior to the second anniversary of the aliens obtaining(iv) The organization shall implement a conditional permanent resident status andformal policy of periodic review of the accept and consider a late petition if theevaluation/examination mechanism to alien demonstrates to the directorsensure ongoing relevance of the satisfaction that failure to file a timelymechanism with respect to knowledge and petition was for good cause and due toskills needed in the discipline. extenuating circumstances. If the late petition is filed prior to jurisdiction vesting(v) The organization shall use policies and with the immigration judge in deportationprocedures to ensure that all aspects of the proceedings and the director excuses theevaluation/examination procedures, as well late filing and approves the petition, he or Page 15 of 24
  16. 16. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924as the development and administration of she shall restore the aliens permanentany tests, are secure. resident status, remove the conditional basis of such status, and cancel any(vi) The organization shall institute outstanding order to show cause inprocedures to protect against falsification accordance with §242.7 of this chapter. Ifof documents and misrepresentation, the petition is not filed until afterincluding a policy to request each jurisdiction vests with the immigrationapplicants transcript(s) and degree(s) judge, the immigration judge maydirectly from the educational licensing terminate the matter upon joint motion byauthorities. the alien and the Service.(vii) The organization shall establish (6) Death of entrepreneur and effect onpolicies and procedures that govern the spouse and children. If an entrepreneurlength of time the applicants records must dies during the prescribed two-year periodbe kept in their original format. of conditional permanent residence, the spouse and children of the entrepreneur(viii) The organization shall publish and will be eligible for removal of conditionsmake available, at least annually, a if it can be demonstrated that thesummary of all screening activities for each conditions set forth in paragraph (a)(4) ofdiscipline including, at least, the number of this section have been met.applications received, the number ofapplicants evaluated, the number receiving (b) Petition review —certificates, the number who failed, and thenumber receiving renewals. (1) Authority to waive interview. The director of the service center shall review(4) Responsibilities to applicants applying the Form I–829 and the supportingfor an initial certificate or renewal. documents to determine whether to waive the interview required by the Act. If(i) The organization shall not discriminate satisfied that the requirements set forth inamong applicants as to age, sex, race, paragraph (c)(1) of this section have beenreligion, national origin, disability, or met, the service center director may waivemarital status and shall include a statement the interview and approve the petition. Ifof nondiscrimination in announcements of not so satisfied, then the service centerthe evaluation/examination procedures and director shall forward the petition to therenewal certification process. district director having jurisdiction over the location of the alien entrepreneurs(ii) The organization shall provide all commercial enterprise in the United Statesapplicants with copies of formalized so that an interview of the alienapplication procedures for entrepreneur may be conducted. The director must either waive the requirement Page 16 of 24
  17. 17. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924evaluation/examination and shall uniformly for an interview and adjudicate the petitionfollow and enforce such procedures for all or arrange for an interview within 90 daysapplicants. Instructions shall include of the date on which the petition wasstandards regarding English language properly filed.requirements. (2) Location of interview. Unless waived,(iii) The organization shall implement a an interview relating to the Form I–829formal policy for the periodic review of shall be conducted by an immigrationeligibility criteria and application examiner or other officer so designated byprocedures to ensure that they are fair and the district director at the district officeequitable. that has jurisdiction over the location of the alien entrepreneurs commercial(iv) Where examinations are used, the enterprise in the United States.organization shall provide competentlyproctored examination sites at least once (3) Termination of status for failure toannually. appear for interview. If the alien fails to appear for an interview in connection with(v) The organization shall report the petition when requested by theexamination results to applicants in a Service, the aliens permanent residentuniform and timely fashion. status will be automatically terminated as of the second anniversary of the date on(vi) The organization shall provide which the alien obtained permanentapplicants who failed either the evaluation residence. The alien will be provided withor examination with information on general written notification of the termination andareas of deficiency. the reasons therefore, and an order to show cause shall be issued placing the alien(vii) The organization shall implement under deportation proceedings. The alienpolicies and procedures to ensure that each may seek review of the decision toapplicants examination results are held terminate his or her status in suchconfidential and delineate the proceedings, but the burden shall be on thecircumstances under which the applicants alien to establish by a preponderance ofcertification status may be made public. the evidence that he or she complied with the interview requirements. If the alien has(viii) The organization shall have a formal failed to appear for a scheduled interview,policy for renewing the certification if an he or she may submit a written request toindividuals original certification has the district director asking that theexpired before the individual first seeks interview be rescheduled or that theadmission to the United States or applies interview be waived. That request shouldfor adjustment of status. Such procedures explain his or her failure to appear for the scheduled interview, and if a request for Page 17 of 24
  18. 18. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924shall be restricted to updating information waiver of the interview, the reasons suchon licensure to determine the existence of waiver should be granted. If the districtany adverse actions and the need to re- director determines that there is goodestablish English competency. cause for granting the request, the interview may be rescheduled or waived,(ix) The organization shall publish due as appropriate. If the district directorprocess policies and procedures for waives the interview, he or she shallapplicants to question eligibility restore the aliens conditional permanentdeterminations, examination or evaluation resident status, cancel any outstandingresults, and eligibility status. order to show cause in accordance with §242.7 of this chapter, and proceed to(x) The organization shall provide all adjudicate the aliens petition. If thequalified applicants with a certificate in a district director reschedules that alienstimely manner. interview, he or she shall restore the aliens conditional permanent resident(5) Maintenance of comprehensive and status, and cancel any outstanding order tocurrent information. show cause in accordance with §242.7 of this chapter. If the interview is(i) The organization shall maintain rescheduled at the request of the alien, thecomprehensive and current information of Service shall not be required to conductthe type necessary to evaluate foreign the interview within the 90-day periodeducational institutions and accrediting following the filing of the petition.bodies for purposes of ensuring that thequality of foreign educational programs is (c) Adjudication of petition. (1) Theequivalent to those training the same decision on the petition shall be madeoccupation in the United States. The within 90 days of the date of filing ororganization shall examine, evaluate, and within 90 days of the interview, whichevervalidate the academic and clinical is later. In adjudicating the petition, therequirements applied to each countrys director shall determine whether:accrediting body or bodies, or in countriesnot having such bodies, of the educational (i) A commercial enterprise wasinstitution itself. established by the alien;(ii) The organization shall also evaluate the (ii) The alien invested or was actively inlicensing and credentialing system(s) of the process of investing the requisiteeach country or licensing jurisdiction to capital; anddetermine which systems are equivalent to (iii) The alien sustained the actionsthat of the majority of the licensing described in paragraphs (c)(1)(i) andjurisdictions in the United States. (c)(1)(ii) of this section throughout the Page 18 of 24
  19. 19. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924 period of the aliens residence in the(6) Ability to conduct examinations fairly United States. The alien will be consideredand impartially. An organization to have sustained the actions required forundertaking the administration of a removal of conditions if he or she has, inpredictor examination, or a licensing or good faith, substantially met the capitalcertification examination shall demonstrate investment requirement of the statute andthe ability to conduct such examination continuously maintained his or her capitalfairly and impartially. investment over the two years of conditional residence.(7) Criteria for awarding and governingcertificate holders. (iv) The alien created or can be expected to create within a reasonable period of(i) The organization shall issue a certificate time ten full-time jobs to qualifyingafter the education, experience, license, and employees. In the case of a “troubledEnglish language competency have been business” as defined in 8 CFRevaluated and determined to be equivalent 204.6(j)(4)(ii), the alien maintained theto their United States counterparts. In number of existing employees at no lesssituations where a United States nationally than the pre-investment level for therecognized licensure or certification previous two years.examination, or a test predicting thesuccess on the licensure or certification (2) If derogatory information isexamination, is offered overseas, the determined regarding any of these issuesapplicant must pass the examination or the or it becomes known to the governmentpredictor test prior to receiving that the entrepreneur obtained his or hercertification. Passage of a test predicting investment funds through other than legalthe success on the licensure or certification means (such as through the sale of illegalexamination may be accepted only if a drugs), the director shall offer the alienmajority of states (and Washington, DC) entrepreneur the opportunity to rebut suchlicensing the profession in which the alien information. If the alien entrepreneur failsintends to work recognize such a test. to overcome such derogatory information or evidence the investment funds were(ii) The organization shall have policies obtained through other than legal means,and procedures for the revocation of the director may deny the petition,certificates at any time if it is determined terminate the aliens permanent residentthat the certificate holder was not eligible status, and issue an order to show cause. Ifto receive the certificate at the time that it derogatory information not relating to anywas issued. If the organization revokes an of these issues is determined during theindividuals certificate, it must notify the course of the interview, such informationDHS, via the Nebraska Service Center, and shall be forwarded to the investigations unit for appropriate action. If no Page 19 of 24
  20. 20. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924the appropriate state regulatory authority unresolved derogatory information iswith jurisdiction over the individuals determined relating to these issues, thehealth care profession. The organization petition shall be approved and themay not reissue a certificate to an conditional basis of the aliens permanentindividual whose certificate has been resident status removed, regardless of anyrevoked. action taken or contemplated regarding other possible grounds for deportation.(8) Criteria for maintaining accreditation. (d) Decision —(i) The organization shall advise the DHSof any changes in purpose, structure, or (1) Approval. If, after initial review oractivities of the organization or its after the interview, the director approvesprogram(s). the petition, he or she will remove the conditional basis of the aliens permanent(ii) The organization shall advise the DHS resident status as of the secondof any major changes in the evaluation of anniversary of the aliens entry as acredentials and examination techniques, if conditional permanent resident. He or sheany, or in the scope or objectives of such shall provide written notice of the decisionexaminations. to the alien and shall require the alien to report to the appropriate district office for(iii) The organization shall, upon the processing for a new Permanent Residentrequest of the DHS, submit to the DHS, or Card, Form I–551, at which time the alienany organization designated by the DHS, shall surrender any Permanent Residentinformation requested of the organization Card previously issued.and its programs for use in investigatingallegations of non-compliance with (2) Denial. If, after initial review or afterstandards and for general purposes of the interview, the director denies thedetermining continued approval as an petition, he or she shall provide writtenindependent credentialing organization. notice to the alien of the decision and the reason(s) therefor, and shall issue an order(iv) The organization shall establish to show cause why the alien should not beperformance outcome measures that track deported from the United States. Thethe ability of the certificate holders to pass aliens lawful permanent resident statusUnited States licensure or certification and that of his or her spouse and anyexaminations. The purpose of the process is children shall be terminated as of the dateto ensure that certificate holders pass of the directors written decision. The alienUnited States licensure or certification shall also be instructed to surrender anyexaminations at the same pass rate as Permanent Resident Card previouslygraduates of United States programs. issued by the Service. No appeal shall lie from this decision; however, the alien may Page 20 of 24
  21. 21. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924Failure to establish such measures, or seek review of the decision in deportationhaving a record showing an inability of proceedings. In deportation proceedings,persons granted certificates to pass United the burden shall rest with the Service toStates licensure examinations at the same establish by a preponderance of therate as graduates of United States evidence that the facts and information inprograms, may result in a ground for the aliens petition for removal oftermination of approval. Information conditions are not true and that the petitionregarding the passage rates of certificate was properly denied.holders shall be maintained by theorganization and provided to HHS on anannual basis, to the DHS as part of the 5-year reauthorization application, and at anyother time upon request by HHS or theDHS.(v) The organization shall be in ongoingcompliance with other policies specified bythe DHS.(l) DHS review of the performance ofcertifying organizations. The DHS willreview credentialing organizations every 5years to ensure continued compliance withthe standards described in this section.Such review will occur concurrent with theadjudication of a request forreauthorization to issue health care workercertificates. The DHS will notify thecredentialing organization in writing of theresults of the review and request forreauthorization. The DHS may conduct areview of the approval of any request forauthorization to issue certificates at anytime within the 5-year period ofauthorization for any reason. If at any timethe DHS determines that an organization isnot complying with the terms of itsauthorization or if other adverseinformation relating to eligibility to issuecertificates is developed, the DHS may Page 21 of 24
  22. 22. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924initiate termination proceedings.(m) Termination of certifying (6) Termination of participation oforganizations. regional centers.(1) If the DHS determines that an To ensure that regional centers continue toorganization has been convicted, or the meet the requirements of section 610(a) ofdirectors or officers of an authorized the Appropriations Act, a regional centercredentialing organization have must provide USCIS with updatedindividually been convicted of the violation information to demonstrate the regionalof state or federal laws, or other center is continuing to promote economicinformation is developed such that the growth, improved regional productivity,fitness of the organization to continue to job creation, or increased domestic capitalissue certificates or certified statements is investment in the approved geographiccalled into question, the DHS shall area. Such information must be submittedautomatically terminate authorization for to USCIS on an annual basis, on athat organization to issue certificates or cumulative basis, and/or as otherwisecertified statements by issuing to the requested by USCIS, using a formorganization a notice of termination of designated for this purpose. USCIS willauthorization to issue certificates to foreign issue a notice of intent to terminate thehealth care workers. The notice shall participation of a regional center in thereference the specific conviction that is the pilot program if a regional center fails tobasis of the automatic termination. submit the required information or upon a determination that the regional center no(2) If the DHS determines that an longer serves the purpose of promotingorganization is not complying with the economic growth, including increasedterms of its authorization or other adverse export sales, improved regionalinformation relating to eligibility to issue productivity, job creation, and increasedcertificates is uncovered during the course domestic capital investment. The notice ofof a review or otherwise brought to the intent to terminate shall be made uponDHS attention, or if the DHS determines notice to the regional center and shall setthat an organization currently authorized to forth the reasons for termination. Theissue certificates or certified statements has regional center must be provided 30 daysnot submitted an application or provided all from receipt of the notice of intent toinformation required on the request within terminate to offer evidence in opposition6 months of July 25, 2003, the DHS will to the ground or grounds alleged in theissue a Notice of Intent to Terminate notice of intent to terminate. If USCISauthorization to issue certificates to the determines that the regional centerscredentialing organization. The Notice participation in the Pilot Program should Page 22 of 24
  23. 23. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924shall set forth reasons for the proposed be terminated, USCIS shall notify thetermination. regional center of the decision and of the reasons for termination. As provided in 8(i) The credentialing organization shall CFR 103.3, the regional center may appealhave 30 days from the date of the Notice of the decision to USCIS within 30 days afterIntent to Terminate authorization to rebut the service of notice.the allegations, or to cure thenoncompliance identified in the DHSsnotice of intent to terminate.(ii) DHS will forward to HHS upon receiptany information received in response to aNotice of Intent to Terminate an entitysauthorization to issue certificates. Thirtydays after the date of the Notice of Intent toTerminate, the DHS shall forward anyadditional evidence and shall request anopinion from HHS regarding whether theorganizations authorization should beterminated. The DHS shall accord HHSopinion great weight in determiningwhether the authorization should beterminated. After consideration of therebuttal evidence, if any, and considerationof HHS opinion, the DHS will promptlyprovide the organization with a writtendecision. If termination of credentialingstatus is made, the written decision shall setforth the reasons for the termination.(3) An adverse decision may be appealedpursuant to 8 CFR 103.3 to the AssociateCommissioner for Examinations.Termination of credentialing status shallremain in effect until and unless theterminated organization reapplies forcredentialing status and is approved, or itsappeal of the termination decision issustained by the Administrative Appeals Page 23 of 24
  24. 24. Comment on USCIS-2007-0046 OMB 1615-0061; Form I-924Office. There is no waiting period for anorganization to re-apply for credentialingstatus. Joseph P. Whalen Independent EB-5 Consultant, Advocate, Trainer & Advisor 1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218 Phone: (716) 604-4233 E-mail: joseph.whalen774@gmail.com or Silver.SurferEB5@gmail.com or web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer Page 24 of 24