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EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
EB-5 Entitlement Question Updated 04-03-2012
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EB-5 Entitlement Question Updated 04-03-2012

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UPDATED and with new links added. New footnote 8 added after 760+ views and again at 813 views at about midnight just as May 3, 2012 began.

UPDATED and with new links added. New footnote 8 added after 760+ views and again at 813 views at about midnight just as May 3, 2012 began.

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  • 1. EB-5 “Entitlement” Under the Immigration and Nationality Act (INA)? UPDATED May 3, 2012 (See Last Page) Black’s Law Dictionary (9th ed., 2009) defines entitlement, in essence, as: “An absolute right to a ... benefit ... granted immediately upon meeting a legal requirement.”1 While an entitlement program is essentially defined as: “A government program guaranteeing certain benefits ... to people or entities that meet the criteria set by law.” Black’s also notes that: “Qualified beneficiaries have an enforceable right to participate in the programs.” Black’s defines, at its core, a benefit as: “1. Advantage; privilege. .... 2. Profit or gain; esp., the consideration that moves to the promisee.” Some benefits provided for in the Constitution, the INA, and a variety of other Acts are indeed, entitlements while others are bestowed through a favorable exercise of discretionary authority. Black’s defines discretion as: “1. Wise conduct and management; cautious discernment; prudence. 2. Individual judgment; the power of free decision-making.” Matter of Patel, 17 I&N Dec. 597 (BIA 1980)1 reminds us that an exercise of discretion is a matter of administrative grace for which one must must be worthy. 1 http://www.justice.gov/eoir/vll/intdec/vol17/2842.pdf 1 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 2. “The grant of an application for adjustment of status under section 245 is a matter of administrative grace. An applicant has the burden of showing that discretion should be exercised in his favor.” At p. 601 Patel went to the Ninth Circuit (for other reasons-on other issues) as have a number of significant immigration-related cases. See: Patel v. INS, 638 F. 2d 1199 (9th Cir. 1980) 2.2 Becoming a USCIS-Designated Regional Center under the Immigrant Investor Pilot Program is by no means an automatic entitlement and the Pilot Program could hardly be mistaken for what one would usually think of as an entitlement program. Instead, it is an opportunity to compete and strive for a foothold in a tough economy. Being designated as a Regional Center is not the same as being entitled for a particular visa classification. Nor is the attainment of this license anywhere as simple as achieving a mere label which is all that a classification really is. Under the provisions of the Administrative Procedures Act (APA—portions of 5 USC) certain important terms are defined. Some of those terms readily apply to the Regional Centers and USCIS’ relationship to them. 5 USC § 551. Definitions For the purpose of this subchapter— (8) ``license includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission; (9) ``licensing includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license; (10) ``sanction includes the whole or a part of an agency-- (F) requirement, revocation, or suspension of a license; or 2 http://law.justia.com/cases/federal/appellate-courts/F2/638/1199/211546/ 2 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 3. (11) ``relief includes the whole or a part of an agency-- (A) grant of money, assistance, license, authority, exemption, exception, privilege, or remedy; (B) recognition of a claim, right, immunity, privilege, exemption, or exception; or (C) taking of other action on the application or petition of, and beneficial to, a person;3 Another case of note is Spencer Enterprises, Inc. v. United States, 345 F.3d 683 (9th Cir. 2003) 3. That case stated in no uncertain terms that the classification of one as an entrepreneur, like any other visa classification, is not a matter of discretion, thus reviewable by the Court. Visa classifications’ requirements are defined either solely in the statute or may be seemingly somewhat expanded via regulatory clarifications. There are very specific statutory requirements as clarified by regulation, especially for an EB-5 visa, that must be demonstrated and met in order to obtain that visa classification. That Spencer Court 4 went into great detail concerning the proposition that the visa classification petition must be approved if the evidence supports it. However, there is more to the immigration process than just that one “determination” in order to be issued a visa or obtain adjustment of status. The Court seemed to have lain open an arduous path that appears to have misconstrued, misstated, and overstated the issue by intimating that the “made available” language cited from the statute means that a visa must be issued. The arguments and discussion that could be attempted by citing to that decision would not likely be successful in a deeper analysis and would not apply to the Regional Center application. As for the EB-5 cases, it does not end there with mere classification (I-526 petition approval) but rather it is just begun. It’s just not that simple. Petition approval is a far-cry from attainment of lawful permanent residence. Other factors beyond the preliminary step of visa classification go into the issuance of a visa or adjustment of status. In addition, in the EB-5 arena, just like a visa based on a new marriage, there is a follow-up request in order to lift conditions later along in the process. In EB-5, unlike the conditional spouse, there are no waiver provisions per se other than survivor rights but only when the investment is fulfilled and succeeds in creating jobs. If an I-526 is denied, then 8 CFR § 204.6 (k) allows for 3 http://caselaw.findlaw.com/us-9th-circuit/1330636.html 4 Spencer participated in at least three notable case. 3 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 4. an appeal while for an I-924, § 204.6 (m)(5) allows an appeal. Both cite to § 103, with the Regional Center applicant specifically directed to § 103.3. Regional Center proposal applications are not visa petitions and have no “priority date”. 8 CFR § 103.3 Denials, appeals, and precedent decisions. (a) Denials and appeals —(1) General —(i) Denial of application or petition. When a Service officer denies an application or petition filed under4 §103.2 of this part, the officer shall explain in writing the specific reasons for denial. If Form I–292 (a denial form including notification of the right of appeal) is used to notify the applicant or petitioner, the duplicate of Form I– 292 constitutes the denial order. (ii) Appealable decisions. Certain unfavorable decisions on applications, petitions, and other types of cases may be appealed. ....... ***** (2) AAU appeals in other than special agricultural worker and legalization cases —(i) Filing appeal. The affected party shall 5 file an appeal on Form I– 290B. Except as otherwise provided in this chapter, the affected party must pay the fee required by §103.7 of this part. The affected party shall file the complete appeal including any supporting brief with the office where the unfavorable decision was made within 30 days after service of the decision. Due to the statutory basis for classification and the lack of an affirmative mandate to file for or exhaust an administrative appeal first 6, a Court can take jurisdiction on the I-526 denial if the petitioner skips going through AAO first. Also, if a Notice to Appear (NTA) is not immediately issued, a Court can also entertain a challenge to the denial of an I-829. Theoretically, an I-924 Denial or Termination could be challenged in Court rather than to AAO in the first instance. In our current test case, the Victorville Termination was certified to AAO and the Court decided to back off until AAO made a Decision (more on that later). In this 5 Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011) decided June 3, 2011, found at: http://www.justice.gov/eoir/vll/intdec/vol25/3716.pdf contains a discussion on the meaning of the word “shall” in the INA. Specifically “shall” usually means “may” not “will” or “must”. 6 Administrative exhaustion is not required by statute for AAO Appeals but is mandated in the Removal Context. Another major difference between AAO and BIA authority and procedures. 4 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 5. particular case, USCIS forced an administrative appellate exhaustion sua sponte through use of the optional certification process. The following excerpt is from Spencer Enterprises, Inc. (2003), supra, and is the impetus for the preceding discussion on the Court’s jurisdiction in EB-5. It also is the source of the misconstrued information cited and discussed above. “II. Jurisdiction5 This Court has the duty to consider subject matter jurisdiction sua sponte in every case, whether the issue is raised by the parties or not. ..... ***** The question before us, then, is whether any statute has deprived the federal courts of jurisdiction to review the particular agency action at issue here:  INSs denial of an immigrant investor visa petition. A. The Administrative Procedure Act The Administrative Procedure Act (“APA”), which generally provides the standards of review for agency action, also withdraws jurisdiction to review agency decisions that are “committed to agency discretion by law.” ..... ***** In this case, we need not look to regulations or agency practice because the statutory framework provides meaningful standards by which to review INSs action. Although 8 U.S.C. § 1154(b) instructs that the Attorney General should “determine” whether the facts alleged by the visa petitioner are true and whether the petitioner is eligible for a visa under § 1153(b)(5), this determination is guided by the statutory requirements of the EB 5 program set out in § 1153(b)(5). Moreover, § 1154(b) provides that, upon determining that the petitioner is eligible, the Attorney General “shall ... approve the petition.” Id. (emphasis added). It is certainly not the case that the statute here is “drawn in such broad terms that ․ there is no law to apply.” Heckler, 470 U.S. at 830, 105 S.Ct. 1649 (internal quotation marks omitted). Furthermore, we have previously reviewed denials of visa petitions according to the standards of the APA, see, e.g., Abboud v. INS, 140 F.3d 843, 846-47 (9th Cir.1998), without suggesting that there are no meaningful standards by which to review such denials. The APA does not preclude judicial review. 5 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 6. B. The Illegal Immigration Reform and Immigrant Responsibility Act In 1996, Congress added 8 U.S.C. § 1252(a)(2)(B)(ii) to the immigration code as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). See IIRIRA, Pub. L. No. 104-208 Division C, § 306(a), 110 Stat. 3009-546, 3009-607 (1996). This section, the effects of which we asked the parties to address in their supplemental6 briefs, replaces an affirmative grant of jurisdiction under former 8 U.S.C. § 1105a and strips the federal courts of jurisdiction to review certain INS decisions: Notwithstanding any other provision of law, no court shall have jurisdiction to review ․ any other decision or action of the Attorney General the authority for which is specified under [8 U.S.C. §§ 1151- 1378] to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title [relating to asylum]. Id. § 1252(a)(2)(B)(ii). ***** Applying § 1252(a)(2)(B)(ii) here, we find that the authority to issue a visa under the immigrant investor program is not specified by any statute to be discretionary. Instead, the authority comes directly from § 1153(b)(5), which both mandates issuance of such visas, see 8 U.S.C. § 1153(b)(5)(A) (“Visas shall be made available ․ to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise ․” (emphasis added)), and sets out a series of standards for eligibility that the visa petitioner must meet. Although, like the statute in Matsuk 7, § 1154(b) does allow the Attorney General to “determine” the petitioners eligibility, the determination here is clearly guided by the eligibility requirements set out in § 1153(b)(5), whereas the discretionary determination in Matsuk is unguided. Moreover, as noted above, § 1154(b) directs that the Attorney General “shall ․ approve the petition” of any visa petitioner who is determined to be 7 Matsuk v. INS, 247 F.3d 999 (9th Cir.2001) Found at: http://law.justia.com/cases/federal/appellate-courts/F3/247/999/587802/ 6 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 7. eligible. This language is very distinct from the discretionary language in the asylum context, which allows the Attorney General to deny asylum even to those applicants who meet the statutory eligibility requirements. 4 We conclude that § 1252(a)(2)(B)(ii) does not preclude judicial review of the decision whether to issue a visa pursuant to § 1153(b)(5). .......” The competing footnotes “4” relating to IIRIRA jurisdiction stripping provisions:7 Majority: “4. The dissent argues that 8 U.S.C. § 1155, allowing visa petitions to be revoked for “good and sufficient cause,” indicates that visa decisions are wholly discretionary. But the decision at issue here is not a revocation under § 1155, and in any case we have previously interpreted the words “good and sufficient cause” to require INS to produce “substantial evidence supporting its determination” that a petition should be revoked. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1309 (9th Cir.1984). Thus the text of §1155 no more specifies visa decisions to be in the unfettered discretion of the Attorney General than does the text of §§ 1153(b)(5) and 1154(b).” Dissent: “4. The court deduces that the permanent rules to the Illegal Immigration Reform and Immigrant Responsibility Act do not preclude judicial review of all discretionary decisions because the Acts transitional rules more specifically, and therefore more broadly, precluded judicial review of “discretionary decisions.” [Courts opinion at 689-690]. The courts interpretation of the Acts scheme defies logic. As we have already noted, the Acts purpose is to deprive courts of the ability to review executive agency action in the area of immigration. See American-Arab Anti-Discrimination Comm., 525 U.S. at 486, 119 S.Ct. 936. The courts assertion that the transitional rules more broadly precluded judicial review, while the permanent rules only narrowly preclude judicial review, flies in the face of Congresss clear intent.” In Matsuk, the Court noted that “[p]art of having jurisdiction to determine our jurisdiction includes having jurisdiction to review "threshold issues."...” Determining whether there is any entitlement for designation as a USCIS- Designated Regional Center is a threshold issue that has yet to be tackled by 7 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 8. anyone. It does not look like it will be answered or even addressed any time soon. Matsuk was denied withholding of removal (WOR). INA WOR is an entitlement if found eligible but one is specifically barred from such a finding for certain disqualifying acts. Asylum and relief under CAT (Convention Against Torture) work almost the same way. Asylum, waivers, and WOR are forms of relief and are fundamentally different from an affirmative request for a benefit. Few INA-based benefits are statutory entitlements, with the notable exceptions of8 citizenship by birth or action of law, and “classification” within a visa category. Nearly every other benefit entails at least a two-step approach and some are more complex than that. One generally needs to show basic eligibility and/or demonstrate qualifications first, i.e., a threshold issue. Only after such a threshold showing may the case proceed. If the threshold is met then the petitioner or applicant must be otherwise eligible in all respect. That last determination or final hurdle often requires one being deemed worthy of a favorable exercise of discretion, or adjudged 8 worthy. As for a Regional Center and its associated EB-5 investors, they must prove worthy of an exercise of favorable discretion just to be allowed to take a chance at further success. The Regional Center is not precisely similarly situated as its EB-5 investors but their fates are intertwined. Success or failure on the part of one will at least reflect upon the other if not lead it to share the same fate. The EB-5 investor initially only gets a conditional status and will carry a “back-end burden-of-proof” in order to lift conditions. The Regional Center on the other hand may face Termination of the right to participate in the Pilot Program if it ceases to serve its purpose. As for the Victorville test case, the matter involved was a Termination rather than a Denial. Regional Center Termination is a multi-step process not taken lightly. It is controlled by 8 CFR 204.6 (m): “(6) Termination of participation of regional centers. To ensure that regional centers continue to meet the requirements of section 610(a) of the Appropriations Act, 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. Such information must be submitted to USCIS on an annual basis, on a 8 A mixed question of fact and law which requires sound judgment to resolve. 8 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 9. cumulative basis, and/or as otherwise requested by USCIS, using a form designated for this purpose. USCIS will issue a notice of intent to terminate the participation of a regional center in the pilot program if a regional center fails to submit the required information or upon a determination that the regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. The notice of intent to9 terminate shall be made upon notice to the regional center and shall set forth the reasons for termination. The regional center must be provided 30 days from receipt of the notice of intent to terminate to offer evidence in opposition to the ground or grounds alleged in the notice of intent to terminate. If USCIS determines that the regional centers participation in the Pilot Program should be terminated, USCIS shall notify the regional center of the decision and of the reasons for termination. As provided in 8 CFR 103.3, the regional center may appeal the decision to USCIS within 30 days after the service of notice. 9” Although this regulation allows for an administrative appeal, it does not mandate one. However, USCIS is required to start with a Notice of Intent To Terminate (ITT) and allow rebuttal or as specifically stated allow the applicant “to offer evidence in opposition”. Victorville did not prevail in its arguments and with the evidence it offered in response to the ITT and USCIS issued a Final Termination but certified it to AAO. Therefore, we will never know if Victorville would have gone the AAO route or skipped AAO and gone straight to the District Court. Future rulemaking could mandate administrative exhaustion, we shall have to wait and see if that materializes. The Victorville Regional Center is in the Ninth Circuit where most of the EB-5 case-law comes from but when they filed their concurrent challenge to the certified decision they chose to file in DC rather than in California. Their stated motivation10 for filing in DC is because USCIS is headquartered there. 9 Although this is the current regulatory language the termination process is the same as in the prior version. 10 I don’t buy that assertion for a single second. They probably have (or had) people prowling the halls of Congress in search of support and lobbying left and right. 9 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 10. Victorville relies heavily on the 2003, Ninth Circuit conclusion that an EB-5 visa classification petition is not a discretionary determination. I am not the first to point out that a Regional Center Designation is NOT a visa classification. Certain concepts do not easily or readily translate or apply from one context to another. Regional Center Designation which is a form a licensure is a vastly different proposition than the statutorily defined classification that underlies the adjudication of a visa petition. A visa petition whether family-based or employment-based is10 reliant on a pre-existing relationship and/or qualifications. A Regional Center applicant does not have a pre-existing relationship, only its own existence as a legally recognized entity11 need be shown, and does not involve any visa. That single prerequisite derives from a non-precedent AAO decision denying the one known paid appeal for a Regional Center denial prior to the creation of the form I-924 which has been incorporated into the form instructions. There are no numerical limits in the INA as to the number of Regional Centers that may be designated. Indeed, they can overlap or even exist right on top of each other. What is more important is to ensure that the Regional Center will be able to fulfill its purpose as contemplated by the statute that created the designation. The EB-5 Regional Center exists only within the Immigrant Investor Pilot Program which was created by § 610 of the Appropriations Act of 1993, Pub. L. 102-395, title VI, Sec. 610, Oct. 6, 1992, as amended. The actual statute creating the Regional Center is not part of the INA but rather is codified along with it as 8 USC § 1153 Note: Pilot Immigration Program. This statute is the basis of the I-924 adjudication. Regional Centers are further controlled by 8 CFR § 204.6(m) and most especially (m)(3)(i)-(v) (shown following excerpt of § 610). (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 12 of such section. Such pilot program shall involve a regional center in the United States, designated by the Secretary of Homeland Security 13 on 11 Black’s defines entity as: “An organization (such as a business or government unit) that has a legal identity apart from its members or owners. 12 This means = write implementing regulations. 13 The authority and responsibility were initially placed on the A.G. and INS but then shifted to DHS and delegated to USCIS. 10 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 11. 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 commercial11 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. (b) For purposes of the pilot program established in subsection (a), beginning on October 1, 1992, but no later than October 1, 1993, the Secretary of State, together with the Secretary of Homeland Security, shall set aside 3,000 visas annually for 15 years to include such aliens as are eligible for admission under section 203(b)(5) of the Immigration and Nationality Act [8 U.S.C. 1153(b)(5)] and this section, as well as spouses or children which are eligible, under the terms of the Immigration and Nationality Act [8 U.S.C. 1101 et seq.], to accompany or follow to join such aliens. (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. (d) In processing petitions under section 204(a)(1)(H) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) for classification under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)), the Secretary of Homeland Security may give priority to petitions filed by aliens seeking admission under the pilot program described in this section. Notwithstanding section 203(e) of such Act (8 11 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 12. U.S.C. 1153(e)), immigrant visas made available under such section 203(b)(5) may be issued to such aliens in an order that takes into account any priority accorded under the preceding sentence. [Pub. L. 107-273, div. C, title I, Sec. 11037(b), Nov. 2, 2002, 116 Stat. 1848, provided that: ``The amendments made by this section [amending section 610 of Pub. L. 102-395, set out above] shall take effect on the date of the enactment of this Act [Nov. 2, 2002] and shall12 apply to— (1) any proposal for a regional center pending before the Attorney General (whether for an initial decision or on appeal) on or after the date of the enactment of this Act; and (2) any of the following petitions, if filed on or after the date of the enactment of this Act: (A) A petition under section 204(a)(1)(H) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) (or any predecessor provision) (or any predecessor provision), with respect to status under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)). (B) A petition under section 216A(c)(1)(A) of such Act (8 U.S.C. 1186b(c)(1)(A)) to remove the conditional basis of an aliens permanent resident status.] [Section 116(b) of Pub. L. 105-119 provided that: ``The amendment made by subsection (a)(2) [amending section 610 of Pub. L. 102-395, set out above] shall be deemed to have become effective on October 6, 1992.] 8 CFR § 204.6 Petitions for employment creation aliens. (m) Immigrant Investor Pilot Program —(1) Scope. The Immigrant Investor Pilot Program is established solely pursuant to the provisions of section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, and subject to all conditions and restrictions stipulated in that section. Except as provided herein, aliens seeking to obtain immigration benefits under this paragraph continue to be 12 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 13. subject to all conditions and restrictions set forth in section 203(b)(5) of the Act and this section. ***** (3) Requirements for regional centers. Each regional center wishing to participate in the Immigrant Investor Pilot Program shall submit a proposal to the Assistant Commissioner for Adjudications, which: (i) Clearly describes how the regional center focuses on a13 geographical region of the United States, and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment; (ii) Provides in verifiable detail how jobs will be created indirectly through increased exports; (iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center; (iv) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and (v) Is supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and/or multiplier tables. The DC District Court granted a stay as opposed to a dismissal and allowed AAO more time to render a decision. We shall see what comes of the AAO consideration on certification and what the District Court does after that*. The statutory and regulatory framework is quite different for a Regional Center applicant than for an EB-5 entrepreneur visa petition classification but they are so closely related that neither can afford to ignore the role, responsibilities, and fate of the other. 13 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 14. A primary responsibility of a Regional Center is to assist its EB-5 investors to achieve success in their visa petitions, so the steps the Regional Center takes towards that end are fair game within the adjudication of the I-924. USCIS will be, in a sense licensing the Regional Center to market its projects to alien investors with the advantage of including indirect job creation and the inducement of a seemingly easier EB-5 immigration process than going it alone. As far as I know, no U.S. Government Agency is in the business of aiding14 and abetting scam artists to fleece alien entrepreneurs or to lead such hopeful immigrants astray. The stay was issued with an expectation of a decision by AAO and a response to the Court by December 22, 2011. If the AAO Affirms the Termination and the DC District Court reviews the Decision on the merits, it has its job cut out for it. The Court will need to dissect the authorizing statute, implementing regulations, and Precedents 14, as well as Policy and Procedural memos and manuals, and any other interpretive materials of value in coming to any conclusions. Can the USCIS Designation as a Regional Center under the Immigrant Investor Pilot Program be considered licensing? USCIS can bestow this designation and USCIS can take it away. The Regional Center Application is not a “visa petition”, it is not “work authorization”, it is not a “travel authorization or document” and it 14 In 1998, the AAO (attributed to The Associate Commissioner, Examinations) through the BIA, issued four EB-5 Precedent Decisions, but they are for the Immigrant Investors, Not Regional Centers but have some pertinence. Additional court cases do exist but not exactly on topic. Matter of Ho http://www.justice.gov/eoir/vll/intdec/vol22/3362.pdf (not to be confused with the other non-EB-5 Matter of Ho, 19 I&N Dec. 582 (BIA 1988) which is also quite relevant.) Found at: http://www.justice.gov/eoir/vll/intdec/vol19/3051.pdf and the case that followed it, Matter of Church Scientology International, 19 I&N Dec. 593 (Comm. 1988) – both are highly important for current critical developmental procedural matters.) Matter of Hsuing http://www.justice.gov/eoir/vll/intdec/vol22/3361.pdf Matter of Izummi http://www.justice.gov/eoir/vll/intdec/vol22/3360.pdf For the I-924, the most pertinent part of the 15 part holding of Izummi is number “(9) The Service does not pre-adjudicate immigrant-investor petitions; each petition must be adjudicated on its own merits.” However, the AAO inappropriately applies number “(3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements.” Matter of Soffici http://www.justice.gov/eoir/vll/intdec/vol22/3359.pdf 14 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 15. does not change the applicant’s legal immigration or nationality status within the United States. What does it entail? Once the applicant entity is recognized as a Regional Center, it can make specific assertions to individual alien investors that can affect the alien investors’ immigration status and help them obtain rights and privileges by taking advantage of exceptions and exemptions not afforded to others who are not affiliated with a Regional Center. The Regional Centers therefore, are in a sense, licensed by15 USCIS to advertise those exceptions and exemption within limits and conditions set by USCIS in accordance with the governing statute and regulations. The Approval Notice informs the Regional Center of its operational parameters as to geographic area, financial pathways, and reasonable methodologies job creation predictions, i.e., “scope”. USCIS reviews, possibly modifies or causes the modification of, then approves particular overall business plans, job creation and economic impact prediction methodologies to be used to support future individual immigrant visa petitions. The Regional Center will have requested a license to operate in a particular place, developing (or rescuing) specified “kinds of commercial enterprises”, and in a particular manner. USCIS will have either completely approved or modified the scope through negotiations (usually RFEs but perhaps through the newer dedicated e-mail communication, or possibly through an in-person meeting with the previously announced “Decision Board”) and the parties will have reached an agreement. Exceeding the approved scope is essentially breaching that agreement. However, as we have learned, USCIS will allow the actual EB-5 investors to fall-back on the same requirements as any non-Regional Center-affiliated investor in order to proceed with the lifting of conditions OR the less desireable option to re-file and start over. Thereby, the EB-5 investor is not held accountable for the Regional Center’s breach BUT cannot unfairly profit by mere affiliation with a failure. Below is from an AAO non-precedent Denial Affirmed on Certification pertaining to an I-829, Petition by Entrepreneur to Remove Conditions Pursuant to Section 216A of the Immigration and Nationality Act, 8 U.S.C. 5 1186(b) (an I-829 has no AAO Appeal Rights but anything may be certified for review) found at: Apr142011_01B7203.pdf 15 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 16. “With respect to the other two alien investors who have removed conditions, the AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert.16 denied, 485 U.S. 1008 (1988).” (At p.16) Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988) is cited for the following words of wisdom and the plethora of citations to back it up. “The Service, in the absence of any legislative history, regulations, or precedent decisions on the applicability to religious personnel of the "L-1" and Schedule A, Group IV, provisions, has been attempting to set standards and may have inadvertently rendered some inconsistent decisions. In spite of this, this Service is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals which may have been erroneous. Matter of Khan , 14 I&N Dec. 397 (BIA 1973), by extension; Matter of M- , 4 I&N Dec. 532 (BIA 1951; BIA, A.G. 1952); see also Pearson v. Williams , 202 U.S. 281 (1906); Lazarescu v. United States , 199 F.2d 898 (4th Cir. 1952); United States ex rel. Vajta v. Watkins , 179 F.2d 137 (2d Cir. 1950); Mannerfrid v. Brownell , 145 F. Supp. 55 (D.D.C.), affd , 238 F.2d 32 (D.C. Cir. 1956).” [Emphases added.] The above premise of not being bound by past mistakes or earlier incorrect interpretations, finds additional support long before and after that particular case. R.L. Investment Limited Partners v. INS, 273 F.3d 874 (9th Cir.2001) ("RLILP") (adopting in full the district courts decision in R.L. Investment Limited Partners v. INS, 86 F.Supp.2d 1014 (D. Haw., 2000) and Chang v. United States, 327 F.3d 911 (9th Cir. 2003) fully support the notion of not being bound by past interpretations. Good luck to Judge Richard W. Roberts in the D.C. Circuit Court. *Stay tuned: http://dockets.justia.com/docket/district-of-columbia/dcdce/1:2011cv01287/149205/ 16 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011
  • 17. Victorville Regional Center is No More! AAO Affirmed the Certified Dismissal of the Motion and Upheld CSC Final Termination in a Decision dated December 21, 2011. That FINAL DECISION from AAO addressed the arguments submitted in response to the Certification which were completely new and way off base. Ultimately, AAO simply Affirmed the CSC Decisions and incorporated them by reference.17 SEE: http://www.slideshare.net/BigJoe5/victorville-aao-final-termination-dec-2011 CSC Certified to AAO its Dismissal [dated May 24, 2011] of the Motion that was filed by Victorville in response to the Final Termination of October 20, 2010. SEE: http://www.slideshare.net/BigJoe5/victorville-rc-terminarion-cert-to-aao- 5242011 The CSC Termination of October 20, 2010 was Affirmed and incorporated by reference. SEE: http://www.slideshare.net/BigJoe5/csc-victorville-rc-termination-oct-20-2010 The DC District Court issued a briefing schedule. SEE: http://www.slideshare.net/BigJoe5/victorville-rc-uscis-scheduling-order-1- 612 Victorville RC requested a “Voluntary Dismissal” prior to USCIS submitting any brief which effectively cut-off any actual Court Decision on the merits. SEE: http://www.slideshare.net/BigJoe5/victorville-voluntary-dismissal-262012 17 B y Joseph P. Whalen e-mail: joseph.whalen774@gmail.com November 1, 2011

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