How to figure out what is what in EB-5
 

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How to figure out what is what in EB-5 Document Transcript

  • 1. How to Figure Out What Is What in EB-5 and Regional Centers 1. Separate your apples from your oranges before you go bananas (or do anything else). Know what you have to deal with but realize that you will miss something and things will change after that. a. Two different statutes; b. EB-5-specific regulations address FIVE situations: i. I-924 for Regional Centers, ii. I-526 for Visa Classification, iii. I-485 for Adjustment of Status, iv. DS-230 for an Immigrant Visa, and v. I-829 to Lift Conditions; c. AAO Precedents of 1998; but d. Don’t forget the older BIA and INS Decisions before 1990. e. Limited number of significant Court cases. f. Policy and Procedural memos, manuals, and interpretive materials. g. There are a few non-precedent AAO Decisions available but they are not binding for any enforceable legal right or purpose. 2. Then make a timeline and try to see how these things fit into the current reality in a “big picture” kind of way. 3. Remember that “Failing to Plan” equals “Planning to Fail”.General Background-- Regulatory Creation of the Investor ClassificationThe “investor visa” was created originally in INS’ regulations utilizing the AttorneyGeneral’s broad authority under INA § 103 [8 USC § 1103] by construing andinterpreting former INA § 203 [8 USC § 1153 (1965 version)] (a)(8)’s “otherqualified immigrants” who were allowed to demonstrate that they did not require alabor certification from the Secretary of Labor. It was not exactly termed as a visaclassification but rather as a “labor certification exemption”. It seems that everybodyneeded some guidance on who the phrase “other qualified immigrants” actuallyapplied to. Who exactly were these “other qualified immigrants” that did not need alabor certification? These visas were allocated under INA § 203 (a)(8) but issued as a“special immigrant” class barely defined in INA § 101(a)(27) [8 USC § 1101(a)(27)]. The Immigration and Nationality Act Amendments of 1965 (Public Law 89-236, Sec. 8 (a)) renamed non-quota immigrants as special immigrants in INA §101(a)(27). These special immigrants were eligible for non-preference visas andinvestors were among these immigrants but defined in the regulation, not the statute.
  • 2. Statutory Creation of the EB-5 VisaCongress built upon what INS had begun by modifying and codifying the laborcertification exemption as a misclassified preference category visa twenty-four yearsafter-the-fact. The realm of the “preference category visa petition” is a very specificcontext which is ill-suited to the needs of the EB-5 “employment creation” visacategory. This particular context demands that the beneficiary shall be fully qualifiedand statutorily eligible for the visa classification at the time of filing and must remainso through time of adjudication and ultimately at time of visa issuance. In somecases, i.e., conditional immigrants- must remain qualified for a specified period oftime and with conditions attached to retention of status. I say it is misclassifiedbecause the qualifications for classification are quite different from all the otherpreferences and even the special immigrant categories. All an EB-5 really needs ismoney and a dream at time of filing in order to be fully eligible, however, being trulyqualified to pursue this course of action and take on the demanding commitment isanother matter altogether. The reality calls for flexibility that USCIS has been tooreluctant to develop, at least, until now. Things are currently in a state of flux and wemust wait to see how things work out in the near-term.The statutory EB-5 Visa Category was created by IMMACT90 (immigration Act of1990). The Pilot Program and its Regional Centers were created by § 610 of theAppropriations Ac t of 1993 [Pub. L. 102-395, title VI, Sec. 610, Oct. 6, 1992, asamended. The actual statute creating the Regional Center is not part of the INA butrather is codified along with it as 8 USC § 1153 Note: Pilot Immigration Program].Each of these base statutes have been amended after initial enactment. You have tomap the changes for comparison against the implementing regulations at 8 CFR §204.6 and it too has been changed over time. The promulgation history is: 56 FR60910, Nov. 29, 1991, as amended at 57 FR 1860, Jan. 16, 1992; 58 FR 44608,44609, Aug. 24, 1993; 74 FR 26937, June 5, 2009; 75 FR 58990, Sept. 24, 2010. Themost recent amendment was published August 29, 2011, in 76 FR 53782; effective onNovember 28, 2011, whereby paragraph (l) is removed and reserved.The Entrepreneur Visa: Current Statutes and Regulations.INA § 203ALLOCATION OF IMMIGRANT VISAS(b) Preference Allocation for Employment-Based Immigrants. - Aliens subject to theworldwide level specified in section 201(d) for employment-based immigrants in afiscal year shall be allotted visas as follows:
  • 3. (5) Employment creation. - (A) In general. - Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial 4/ enterprise (including a limited partnership)-- (i) 4/ in which such alien has invested (after the date of the enactment of the Immigration Act of 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and (ii) 4/ which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrants spouse, sons, or daughters). (B) Set-aside for targeted employment areas.- (i) In general. - Not less than 3,000 of the visas made available under this paragraph in each fiscal year shall be reserved for qualified immigrants who 4/ invest in a new commercial enterprise described in subparagraph (A) which will create employment in a targeted employment area. (ii) Targeted employment area defined. - In this paragraph, the term ``targeted employment area means, at the time of the investment, a rural area or an area which has experienced high unemployment (of at least 150 percent of the national average rate). (iii) Rural area defined. - In this paragraph, the term ``rural area means any area other than an area within a metropolitan statistical area or within the outer boundary of any city or town having a population of 20,000 or more (based on the most recent decennial census of the United States). (C) Amount of capital required. - (i) In general. - Except as otherwise provided in this
  • 4. 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.--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.INA: ACT 203 FN 4FN 4 Section 203(b)(5)(A) and (B)(i) were amended by section 11036(a)(1) and (2)of the 21st Century Department of Justice Appropriations Authorization Act, PublicLaw 107-273, dated November 2, 2002. (c) Effective Date.--The amendments made by section 11036 shall take effect on thedate of the enactment of this Act (Public Law 107-273 dated November 2, 2002) andshall apply to aliens having any of the following petitions pending on or after the dateof the enactment of this Act:
  • 5. (1) 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), with respect to status under section 203(b)(5) of such Act (8 U.S.C. 1153(b)(5)). (2) 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.Subparagraph (D) added by section 11035 of the 21st Century Department of JusticeAppropriations Authorization Act, Public Law 107-273, dated November 2, 2002. 8 USC 1153 Note: Immigarnt Pilot ProgranPub. L. 102-395, title VI, § 610, Oct. 6, 1992, as amended: (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 provisions1 of such section. Such pilot program shall involve a regional center in the United States, designated by the Secretary of Homeland Security2 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. (b) For purposes of the pilot program established in subsection (a), beginning on October 1, 1992, but no later than October 1, 1993,1 This means = write implementing regulations.2 The authority and responsibility were initially placed on the A.G. and INS but then shifted toDHS and delegated to USCIS.
  • 6. 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 program3 described in this section. Notwithstanding section 203(e) of such Act (8 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 shall 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; and3 Shovel-ready and/or actual projects may get premium processing option.
  • 7. (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 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 a 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;
  • 8. (iii) Provides a detailed statement regarding the amount and source ofcapital which has been committed to the regional center, as well as adescription of the promotional efforts taken and planned by the sponsorsof the regional center;(iv) Contains a detailed prediction regarding the manner in which theregional center will have a positive impact on the regional or nationaleconomy in general as reflected by such factors as increased householdearnings, greater demand for business services, utilities, maintenanceand 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 anddomestic markets for the goods or services to be exported, and/ormultiplier tables.