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Distinguishing Matter of Perez Vargas and Matter of Neto for EB-5 3-17-12

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  • 1. Distinguishing Matter of Perez Vargas and Matter of Neto for EB-5 purposes By Joseph P. Whalen (March 17, 2012)In Matter of Neto, 25 I&N Dec. 169 (BIA 2010)1 (aka Matter of Marcal-Neto), theBIA re-evaluated its position on an Immigration Judges’ (IJ’s) authority toconsider whether the validity of an alien’s approved employment-based visapetition is preserved under section 204(j) of the Immigration and Nationality Act, 8U.S.C. § 1154(j) (2006), after the alien’s change in jobs or employers. ThroughNeto, the BIA overruled Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005) 2.Immigration Judges may now determine whether an approved employment-relatedvisa petition, a Form I-140 (Immigrant Petition for Alien Worker), remains validwhen an alien changes his or her job but alleges that the new job is similar to theoriginal position. I-526s and I-829s are in a vastly different context than an I-140. “One of [the BIA’s] assumptions in Matter of Perez Vargas was that the DHS would give an Immigration Judge an indication as to whether an alien’s job was portable under section 204(j) of the Act. However, the DHS has now informed [the BIA] in its brief [in Matter of Neto] that this is not the case. The agency does not see itself as having jurisdiction over section 204(j) determinations once an alien is in removal proceedings. [The BIA] lack[s] authority to force the agency to make such a determination. That leaves only the Immigration Judge to make this decision. [The BIA] certainly agree[s] with the parties that the respondent should be able to obtain a decision on the portability of the new employment under section 204(j). That was Congress’s intent in enacting section 204(j)...” Neto at 173The BIA further noted that: “[s]ince the DHS is not going to make the section 204(j) determination when it lacks jurisdiction over the adjustment application, we agree that the Immigration Judge must do it. Any other conclusion would result in unfairness.” Id. at 174That’s all well and good within the context determining portability under INA §204(j) regarding the same or similar determination for a position described in alabor certification and an I-140, but it does not apply to an EB-5 investment,especially within the context of investments via the Regional Centers of the EB-5Pilot Program. The underlying statutes are clearly distinguishable. The RegionalCenters only exist as a part of the Pilot Program which finds its statutory authorityoutside of the INA in Pub. L. 102-395, title VI, Sec. 610, Oct. 6, 1992, 106 Stat.1874, as amended [8 U.S.C. § 1153 Note: Pilot Immigration Program]. Theauthorizing statute vests the authority over the EB-5 Pilot Program solely in thepurview of the Secretary of Homeland Security and by delegation to USCIS alone.1 See http://www.justice.gov/eoir/vll/intdec/vol25/3669.pdf2 See http://www.justice.gov/eoir/vll/intdec/vol23/3519.pdf Page 1 of 5
  • 2. Specifically, the controlling statute was enacted as section 610 of theAppropriations Act of 1993, since amended, which currently states, in pertinentpart: “(a) Of the visas otherwise available under section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)), the Secretary of State, together with the Secretary of Homeland Security, shall set aside visas for a pilot program to implement the provisions of such section. 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 result of such capital investments, and the other positive economic effects such capital investments will have. * * * * * (c) In determining compliance with 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. ....”The above section has been updated to reflect changes since the creation of theDepartment of Homeland Security. Statutory authorities have shifted inimmigration, nationality and citizenship law but certain references have not yetbeen updated throughout the various statutory sections involved. With this in mind,you have to read the text that you find tentatively. What you find may not be 100%correct and up to date. This is the case with the portion of the INA dealing withconditional residence of alien entrepreneurs and their dependent family members,and the lifting thereof (INA § 216A [8 U.S.C. § 1186b]). A note describing thesituation has been set out under 8 U.S.C. 1551, which concludes: “For treatment ofreferences to any agency, officer, or office, etc. the functions of which weretransferred to the Department of Homeland Security, see sections 552(d) and 557of Title 6.” Title 6, United States Code is entitled: “Domestic Security”.6 U.S.C. § 552 Savings provisions. (d) References References relating to an agency that is transferred to the Department in statutes, Executive orders, rules, regulations, directives, or delegations of authority that precede Page 2 of 5
  • 3. such transfer or the effective date of this chapter shall be deemed to refer, as appropriate, to the Department, to its officers, employees, or agents, or to its corresponding organizational units or functions. Statutory reporting requirements that applied in relation to such an agency immediately before the effective date of this chapter shall continue to apply following such transfer if they refer to the agency by name.6 U.S.C. §557. Reference With respect to any function transferred by or under this chapter (including under a reorganization plan that becomes effective under section 542 of this title) and exercised on or after the effective date of this chapter, reference in any other Federal law to any department, commission, or agency or any officer or office the functions of which are so transferred shall be deemed to refer to the Secretary, other official, or component of the Department to which such function is so transferred.The controlling statute for an I-829, INA § 216A [8 U.S.C. § 1186b] containsmany references to the Attorney General and all but one should be read asSecretary of Homeland Security with that one exception being an either-or typeconversion depending on whether an NTA had been issued or not. Likewise thecontrolling USCIS regulations at 8 CFR § 216.6 and the corresponding EOIRregulations at 8 CFR § 1216.6 have not been significantly updated since firstwritten. While there is no issue, in regard to references to the Attorney General,there is precious little for an Immigration Judge to utilize. On the other hand, thereare ample mechanisms for any NTA to be cancelled or for USCIS to request thatan IJ simply hand the case back to it. It is clear that EB-5 cases, in general, werenever intended to be seriously considered by an IJ. This simple fact brings us backto the value of the principles discussed in the discussion within Matter of PerezVargas, 23 I&N Dec. 829 (BIA 2005) which was unfortunately overruled.The majority in Matter of Neto, 25 I&N Dec. 169 (BIA 2010) stated: “We recognize that a section 204(j) determination might be difficult for Immigration Judges. Our prior decision in Matter of Perez Vargas discussed the fact that judges may lack expertise in making such determinations. Nevertheless, we anticipate that there will be cases where the new job is very similar to the original job, which will result in a relatively easy determination for the Immigration Judge, and, barring any other eligibility issues, the alien will be granted adjustment of status. Likewise, where the new job is very different from the original one, a decision to find the job not portable may well be fairly easy. In cases where portability is not readily apparent, the Immigration Judge may need to grant continuances for the parties to obtain and submit evidence in support of, or in opposition to, a finding of portability. See Matter of Rajah, 25 I&N Dec. 127 (BIA 2009) (stating that an alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for Page 3 of 5
  • 4. adjustment of status); see also Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (identifying factors to be considered in determining whether to grant a continuance in similar cases involving pending family-based visa petitions). While we recognize that our decision may result in Immigration Judges often rendering decisions of first impression, we are confident that section 204(j) determinations are not outside the scope of their duties in immigration matters. Immigration Judges, like other trial judges generally, are often required to determine factual disputes regarding matters on which they possess little or no knowledge or substantive expertise, and, in making such determinations, they typically rely on evidence, including expert testimony, presented by the parties.” At pp. 175-176However, the concurring opinion of Board Member Anne J. Greer, in which RogerA. Pauley, Board Member, joined is more sensible where it states: “I would prefer to establish a standard to allow the Immigration Judge to continue the case when a successful portability determination would result in a prima facie approvable adjustment of status application. The statutory and regulatory landscape in this area is confusing and complex, which creates uncertainty in its application. Aliens in removal proceedings have not been successful in obtaining portability determinations from the DHS, which now leads to the result we reach here. In Matter of Yauri, 25 I&N Dec. 103 (BIA 2009), we explained how similar confusion led to DHS inaction over a specific category of adjustment applicants, even in the presence of clearly assigned jurisdiction. In my view, USCIS adjudication of portability determinations under section 204(j) would be far more efficient than bifurcating jurisdiction depending on whether removal proceedings are underway. Nonetheless, this is the result we are compelled to adopt.” [Bold emphasis added.]The most useful discussion from Perez Vargas, remains, in my opinion, andspecifically as it relates to any “within the scope” analysis as to a project remainingwithin the operational parameters of a previously approved Regional Center this: “Moreover, we agree with the DHS that a determination under section 204(j) of the Act whether a change in employment affects the viability of an employment-based visa petition is one which requires some expertise in assessing the similarity in certain types of employment. The respondent argues that the employment description on which his visa petition was approved, i.e., inspecting wood cabinets under the occupational title of carpentry, is substantially similar to the new employment that he obtained in 2002, i.e., installing marble counters. As is clear from the transcript of proceedings, however, the Immigration Judge was not confident that these jobs, which involve two different materials, were the same or similar. Furthermore, even assuming the techniques used in the different jobs involved similar principles and methods, it would be difficult for the Immigration Judge to assess whether the new job description included the same level of responsibility and skill, and whether the job would have an adverse impact on the United States labor market. Page 4 of 5
  • 5. Original jurisdiction over employment-based visa petitions lies with the DHS following issuance of a labor certification by the Department of Labor (“DOL”). See 8 C.F.R. §§ 204.5(b), (d). It therefore follows that any redetermination of the visa petition’s validity would also lie with these government entities, and not with the Immigration Judge. See Matter of Arthur, 20 I&N Dec. 475, 479 (BIA 1992) (noting that an inquiry into the merits of a visa petition would “constitute a substantial and unwarranted intrusion into the district director’s authority over the adjudication of visa petitions”); see also Matter of H-A-, 22 I&N Dec. 728, 736 (BIA 1999); Matter of Aurelio, supra, at 460-61; Memorandum from James A. Puleo, Acting Executive Associate Commissioner, Office of Operations, to INS officials (Dec. 10, 1993), reprinted in 70 Interpreter Releases, No. 48, Dec. 20, 1993, at 1676 & app. III at 1692-93 (discussing the agreement between the INS and the DOL regarding guidelines for handling changes to labor certifications and employment-based visa petitions where there is a successor in interest to the original employer).” Perez-Vargas at pp. 831-832 (overruled) [Bold emphasis added.]Even-though Perez-Vargas is no longer valid precedent as to the “same or similaroccupation” redetermination, it does have some useful discussion, which can serveas guidance when applied to the EB-5 context. Even the concurring separateopinion to Neto recognizes that the re-determination would be better handled byUSCIS than an IJ or the BIA. Any altered or replacement EB-5 business plan andeconomic analysis re-evaluation will be exponentially more complicated andcomplex than re-evaluating a single job description which an IJ or BIA BoardMember already feels uncomfortable performing. Additionally, because theoverarching EB-5 statute vests sole authority in the Secretary of HomelandSecurity and thus USCIS, no IJ or BIA Board Member should ever have to try totackle such a complex and convoluted adjudication or its re-adjudication, not thatthey’d ever want to try. The EB-5 context is clearly and easily distinguishablefrom the AC21 governing statutory authority and any associated redeterminationimplications. Furthermore, the AC21 redetermination comes at the commencementof LPR’s status but the EB-5 redetermination would come on the back end of theprocess which, if successful will validate any time that has been spent during theredetermination process. Page 5 of 5