Your SlideShare is downloading. ×
0
EB-5 IRAC question and answer list
EB-5 IRAC question and answer list
EB-5 IRAC question and answer list
EB-5 IRAC question and answer list
EB-5 IRAC question and answer list
EB-5 IRAC question and answer list
EB-5 IRAC question and answer list
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×
Saving this for later? Get the SlideShare app to save on your phone or tablet. Read anywhere, anytime – even offline.
Text the download link to your phone
Standard text messaging rates apply

EB-5 IRAC question and answer list

375

Published on

Published in: Investor Relations
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
375
On Slideshare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
10
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. EB-5 IRAC Q&A LIST ISSUE or QUESTION PRESENTED Can a Regional Center be bought and sold? RULE: STATUTE; REGULATION; PRECEDENT; AGENCY INTERPRETATIONS, POLICIES, & OTHER GUIDANCE 8 USC § 1153 Note: Immigration Program embodies Pub. L. 102–395, title VI, §610, Oct. 6, 1992, 106 Stat. 1874, as amended. §610 (a) especially. If I control an existing Regional Center covering one county in a state and am presented with a project outside that county; can I offer it through my RC? §610 (a) 8 CFR §204.6(m)(3)(i) USCIS’ Policy Memorandum PM 602-0083; EB-5 Adjudications Policy, May 30th 2013; Prong (2) in the holding in Izummi; I-924 By Joseph P. Whalen [1st post September 25, 2013] ANALYSIS CONCLUSION §610 (a) vests statutory authority to designate Regional Center in the Secretary of Homeland Security who has delegated this responsibility to USCIS. Nowhere in any statute, regulation, or precedent has it ever even been contemplated that an existing Regional Center has any authority whatsoever to sell their designation or to bestow such status upon another. Some will argue that since the statute does not explicitly prohibit selling a Regional Center then it must be OK. That is naïve thinking. The RC statute also does not explicitly state that you are not allowed to bride a government official in order to get status but to argue that it would be OK is just plain ridiculous. The law provides that a Regional Center is located in a “limited geographic area” and that it be a “defined economic zone”. Through the form instructions which are based on years of adjudication practice and AAO reviews, the area needs to be “contiguous”. There are no No. Any change in a Regional Center’s administration, organizational structure, or principal requires an amendment because it is the person, agency or other “entity” who must seek and receive their own designation from USCIS. A change in principal only should sail through the amendment process if nothing or little else actually changes and the new leadership is reputable. Maybe, it depends. USCIS’ PM allows flexibility in this area. The RC is not required to seek an amendment but may if it seeks deference and a greater degree of Page 1
  • 2. EB-5 IRAC Q&A LIST ISSUE or QUESTION PRESENTED RULE: STATUTE; REGULATION; PRECEDENT; AGENCY INTERPRETATIONS, POLICIES, & OTHER GUIDANCE Form Instructions; new or long-standing adjudication practices upheld by AAO in non-precedents as persuasive argument only*. *Skidmore deference. See: JUN122013_01K1610.pdf If I control a Regional Center which has previously submitted certain “kinds of commercial enterprises” to USCIS and have approval for those BUT I am presented with a project which is outside the industries (NAICS Codes) listed on my approval and Designation Letter; may I offer this to EB-5 investors through §610 (a) 8 CFR §204.6(m)(3)(i) USCIS’ Policy Memorandum PM 602-0083; EB-5 Adjudications Policy, May 30th 2013; I-924 Form Instructions; new or longstanding adjudication practices upheld by AAO in non-precedents as persuasive argument only*. *Skidmore deference. See: JUN122013_01K1610.pdf By Joseph P. Whalen [1st post September 25, 2013] ANALYSIS CONCLUSION precedents for RC Proposals or I-924s but the AAO has stated in nonprecedents that the area needs to be contiguous (this included areas such as counties separated by a body of water but otherwise still connected economically). Expanding to the next county or even a few counties away might work out just fine if the resultant area continues to meet the legal definitions. The law states that the Proposal presented to obtain Regional Center status state the “kinds of commercial enterprises” that will receive capital from aliens. However, the law also states that RC designation may be obtained through “general proposals” which contain “general predictions”. In interpreting these ambiguities, the INS and then USCIS have shifted over the decades. Initially, INS was very loose, in fact, too loose, in interpreting these contradictions. After discovering widespread fraud, INS clamped down. certainty. The RC may skip the amendment process and seek an answer to this question with the first I-526 filed in a Specific Project. However the areas of the existing RC and the EXPANDED RC still need to end up being limited, contiguous geographic areas, and a clearly defined economic zone. Yes. However, there is no deference until the first real I526 is approved. If greater deference is desired or if there is sufficient uncertainty involved, then an Exemplar I526 filed as an I-924 Amendment may be filed. The major difference in these approaches is the ability to perfect the I-526 Exemplar and the inability to do so for a Real I-526 which is a true visa petition which involves Page 2
  • 3. EB-5 IRAC Q&A LIST ISSUE or QUESTION PRESENTED RULE: STATUTE; REGULATION; PRECEDENT; AGENCY INTERPRETATIONS, POLICIES, & OTHER GUIDANCE Can I apply for Regional Center Designation for the entire U.S.? §610 (a) 8 CFR §204.6(e) & (m)(3)(i) USCIS’ Policy Memorandum PM 602-0083; EB-5 Adjudications Policy, May 30th 2013; I-924 Form Instructions; new or longstanding adjudication practices upheld by AAO in non-precedents as By Joseph P. Whalen [1st post September 25, 2013] CONCLUSION USCIS continued to be rigid for many years. However, the RC segment of EB-5 saw a resurgence, with clearer instructions and explanations being provided starting in late 2007 and early 2008. USCIS’ Policy Memorandum PM 602-0083; EB-5 Adjudications Policy, May 30th 2013, greatly expands the options available for regional Centers to expand their “kinds of commercial enterprises” without the requirement for an amendment but an amendment is option if greater deference and/or certainty is sought upfront. my existing Regional Center or do I have to wait for an amendment? ANALYSIS securing a “Priority Date” for visa processing and issuance purposes before A Consulate abroad or for the filing of an I485 Application for Adjustment of Status domestically with USCIS. The regulations at 8 CFR §204.6(e) contain the following definition: No. The statute places limits on the geographic area which must be “defined” and needs to Regional center means any economic make sense as an “economic unit, public or private, which is involved zone”. The regulations further with the promotion of economic growth, clarify that the regional center including increased export sales, must focus “on a geographic improved regional productivity, job area of the United States”, creation, and increased domestic capital meaning a portion of the U.S. investment. but not the whole of it. Page 3
  • 4. EB-5 IRAC Q&A LIST ISSUE or QUESTION PRESENTED RULE: STATUTE; REGULATION; PRECEDENT; AGENCY INTERPRETATIONS, POLICIES, & OTHER GUIDANCE persuasive argument only*. *Skidmore deference. For more on Deference in the Immigration Context see here. ANALYSIS CONCLUSION §610 (a) provides in pertinent part: 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. 8 CFR §204.6 (m)(3)(i) states, in part: (i) Clearly describes how the regional center focuses on a geographical region of the United States,… emphasis added. A region is an area that is defined by certain similar characteristics. Those unifying or similar characteristics can be physical, natural, human, or cultural. See here. For EB-5 purposes, the “region” to be defined is a portion of the U.S., rather than the whole U.S. It must further be refined and defined in the context of an By Joseph P. Whalen [1st post September 25, 2013] Page 4
  • 5. EB-5 IRAC Q&A LIST ISSUE or QUESTION PRESENTED Can I sell non-voting shares of stock in my company to EB-5 alien investors to help them get greencards? RULE: STATUTE; REGULATION; PRECEDENT; AGENCY INTERPRETATIONS, POLICIES, & OTHER GUIDANCE 8 CFR §204.6 (j) Initial evidence to accompany petition……(5) To show that the petitioner is or will be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial control or through policy formulation, as opposed to maintaining a purely passive role in regard to the investment, the petition must be accompanied by: (i) A statement of the position title that the petitioner has or will have in the new enterprise and a complete description of the position's duties;(ii) Evidence that the petitioner By Joseph P. Whalen [1st post September 25, 2013] ANALYSIS “economic zone” which is unified through the identification of similar characteristics. The unifying characteristics may be broadly defined in various contexts as denoted above. An EB-5 investor cannot be a “true” passive investor. They at least have to “look-the-part” by being at least a “limited partner” with the usual ULPA rights, including voting. CONCLUSION Non-voting shares fall short of the bare minimum acceptable level of active participation in management through either day-to-day control or policy formulation. Page 5
  • 6. EB-5 IRAC Q&A LIST ISSUE or QUESTION PRESENTED RULE: STATUTE; REGULATION; PRECEDENT; AGENCY INTERPRETATIONS, POLICIES, & OTHER GUIDANCE ANALYSIS CONCLUSION is a corporate officer or a member of the corporate board of directors; or (iii) If the new enterprise is a partnership, either limited or general, evidence that the petitioner is engaged in either direct management or policy making activities. For purposes of this section, if the petitioner is a limited partner and the limited partnership agreement provides the petitioner with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the petitioner will be considered sufficiently engaged in the management of the new commercial enterprise. New additions may be made to this list periodically. Check back now and again. By Joseph P. Whalen [1st post September 25, 2013] Page 6
  • 7. EB-5 IRAC Q&A LIST ISSUE or QUESTION PRESENTED RULE: STATUTE; REGULATION; PRECEDENT; AGENCY INTERPRETATIONS, POLICIES, & OTHER GUIDANCE ANALYSIS CONCLUSION is a corporate officer or a member of the corporate board of directors; or (iii) If the new enterprise is a partnership, either limited or general, evidence that the petitioner is engaged in either direct management or policy making activities. For purposes of this section, if the petitioner is a limited partner and the limited partnership agreement provides the petitioner with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the petitioner will be considered sufficiently engaged in the management of the new commercial enterprise. New additions may be made to this list periodically. Check back now and again. By Joseph P. Whalen [1st post September 25, 2013] Page 6

×