The Key Weasel Words in 8 CFR § 216.6: No IJ Wants to Review an I-829 and You Can Be  Sure that USCIS Does Not Want ANY IJ...
Will AAO seek to designate its latest posted I-829 Denial Review that was sent to it oncertification? Is this the only pos...
file the petition within the designated period. The director may deem the petition to have beenfiled prior to the second a...
defined in section 216A(f)(1) of the Act), Form I–829, Petition by Entrepreneur to RemoveConditions. Therefore, an alien w...
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I 829s will never go to an IJ or BIA revised 8-16-2011

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AN IJ and then the BIA will most likely rubber stamp the USCIS (CSC or AAO) Decision and then the alien can fie in the U.S. Circuit Court of Appeals. CSC is likely to certify such Denials to AAO at least for the first case in a group of similar cases.

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I 829s will never go to an IJ or BIA revised 8-16-2011

  1. 1. The Key Weasel Words in 8 CFR § 216.6: No IJ Wants to Review an I-829 and You Can Be Sure that USCIS Does Not Want ANY IJ or the BIA to EVER See or Review an I-829The regulations (shown below, in pertinent part) are written such that no Immigration Judge (IJ)is supposed to ever even try to adjudicate an I-829. Ample opportunities are written into theregulation to allow USCIS to cancel any Notice to Appear (NTA) [still referred to in these olderregulations by its former name “order to show cause” or OSC] or in the alternative for an IJ toterminate proceedings and hand the case back to USCIS [still referred to in these olderregulations as “the Service” (referring to INS)].Aside from the four EB-5 Precedent Decisions1 decided by the AAO in 1998, I could only findone BIA decision specifically on material change but dealing with an older version of theinvestor “labor certification exemption”. That older case was a slightly different context. InterimDecision # 2581 or Matter of Heidari2, 16 I&N Dec. 203 (BIA 1977) [specifically May 4, 1977]dealt with a student who overstayed and began a business and sought to reopen and later toreopen and reconsider a deportation order. After he was already order deported, he sought to takeadvantage a new immigration classification which required an alien to invest $40,000 and be theprincipal manager of the business and employ at least one USC or LPR employee (excludingself, spouse, and children). In that case, the BIA refused to consider new evidence that came intobeing after the fact, long after the filing of the initial petition and after he was ordered deported.The prohibition against making a “material change” and the requirement for “eligibility attime of filing” specifically within the immigrant investor context goes back to 1977, longbefore Izummi in 1998. However, that too was a decision involving a “visa” through adjustmentas a defense to removal rather than an I-829 seeking to lift conditions, or for a Regional Centerwhich did not exist yet.The April 14, 2011, AAO non-precedent Decision provides an in-depth analysis of the evidenceoffered in that case to show “direct employees” and discusses the requirements for a “qualifyingemployee”. It goes deep into the documents that were reviewed. AAO says that USCIS will notlet you count “unauthorized alien” “direct employees” to perform your calculations to arrive atthe final tally of “indirect employees”. AAO acknowledged that in this venture, two otherinvestors already got their conditions lifted and that was probably a mistake. Even if the“indirect” jobs were to count and the “unauthorized alien” employees were then subtracted fromthe total, there were not enough jobs to lift conditions on this third investor. I wonder if USCISwill seek to rescind the LPR status of those other two investors and their families, if any. We willlikely never know.1 In 1998, the AAO (attributed to The Associate Commissioner, Examinations) through the BIA, issued four EB-5Precedent Decisions, but they are for the Immigrant Investors’ I-526s, not Regional Centers (i-924s), and not I-829s.Matter of Ho http://www.justice.gov/eoir/vll/intdec/vol22/3362.pdfMatter of Hsuing http://www.justice.gov/eoir/vll/intdec/vol22/3361.pdfMatter of Izummi http://www.justice.gov/eoir/vll/intdec/vol22/3360.pdf For the I-924, the most pertinent part of the13 part holding is number“(9) The Service does not pre-adjudicate immigrant-investor petitions; each petition must be adjudicated on its ownmerits.” However, the AAO inappropriately applies number “(3) A petitioner may not make material changes to hispetition in an effort to make a deficient petition conform to Service requirements.”Matter of Soffici http://www.justice.gov/eoir/vll/intdec/vol22/3359.pdf2 http://www.justice.gov/eoir/vll/intdec/vol16/2581.pdf 1 I-829s WILL NEVER BE BEFORE AN IJ OR THE BIA
  2. 2. Will AAO seek to designate its latest posted I-829 Denial Review that was sent to it oncertification? Is this the only posted I-829 decision through 2011? I could not find anyothers searching back through what is posted back to January 2005, but I did not look atabsolutely every single decision in the combined I-526 and I-829m category found at:http://www.uscis.gov/portal/site/uscis/menuitem.2540a6fdd667d1d1c2e21e10569391a0/?vgnextoid=0609b8a04e812210VgnVCM1000006539190aRCRD&vgnextchannel=0609b8a04e812210VgnVCM1000006539190aRCRD&path=%2FB7+-+Form+I-526+and+I-829 See the South Dakota failed Dairy Farm case directly at: http://www.uscis.gov/err/B7%20-%20Form%20I-526%20and%20I- 829/Decisions_Issued_in_2011/Apr142011_01B7203.pdf which states, in part: “Finally, there are serious legal concerns about allowing an enterprise to calculate indirect job creation based on the actual employment of unauthorized aliens. In the certified decision, the director stated that "allowing this practice may be contrary to the spirit of the law as the statute is designed to encourage job creation for qualifying employees." The AAO concurs that allowing the application of a multiplier to non- qualifying jobs would likely result in eligibility for petitioning aliens who are unable to document the creation of any jobs for qualifying employees. This outcome is inconsistent with Congressional intent to create jobs for qualifying employees. See 136 Cong. Rec. S17106-01,17107,1990 WL 165401.”8 CFR § 216.6 Petition by entrepreneur to remove conditional basis of lawful permanentresident status.(a) Filing the petition......(3) Physical presence at time of filing. .......................... An alien who is not physically present inthe United States during the filing period but subsequently applies for admission to the UnitedStates shall be processed in accordance with §235.11 of this chapter.(5) Termination of status for failure to file petition. Failure to properly file Form I–829 withinthe 90-day period immediately preceding the second anniversary of the date on which the alienobtained lawful permanent residence on a conditional basis shall result in the automatictermination of the aliens permanent resident status and the initiation of deportation proceedings.The director shall send a written notice of termination and an order to show cause to an alienentrepreneur who fails to timely file a petition for removal of conditions. No appeal shall liefrom this decision; however, the alien may request a review of the determination duringdeportation proceedings. In deportation proceedings, the burden of proof shall rest with thealien to show by a preponderance of the evidence that he or she complied with the requirement to 2 I-829s WILL NEVER BE BEFORE AN IJ OR THE BIA
  3. 3. file the petition within the designated period. The director may deem the petition to have beenfiled prior to the second anniversary of the aliens obtaining conditional permanent resident statusand accept and consider a late petition if the alien demonstrates to the directors satisfaction thatfailure to file a timely petition was for good cause and due to extenuating circumstances. If thelate petition is filed prior to jurisdiction vesting with the immigration judge in deportationproceedings and the director excuses the late filing and approves the petition, he or she shallrestore the aliens permanent resident status, remove the conditional basis of such status, andcancel any outstanding order to show cause in accordance with §242.7 of this chapter. If thepetition is not filed until after jurisdiction vests with the immigration judge, theimmigration judge may terminate the matter upon joint motion by the alien and theService.(b) Petition review....(3) Termination of status for failure to appear for interview. If the alien fails to appear for aninterview in connection with the petition when requested by the Service, the aliens permanentresident status will be automatically terminated as of the second anniversary of the date onwhich the alien obtained permanent residence. The alien will be provided with writtennotification of the termination and the reasons therefore, and an order to show cause shall beissued placing the alien under deportation proceedings. The alien may seek review of thedecision to terminate his or her status in such proceedings, but the burden shall be on thealien to establish by a preponderance of the evidence that he or she complied with the interviewrequirements. If the alien has failed to appear for a scheduled interview, he or she may submit awritten request to the district director asking that the interview be rescheduled or that theinterview be waived. That request should explain his or her failure to appear for the scheduledinterview, and if a request for waiver of the interview, the reasons such waiver should begranted. If the district director determines that there is good cause for granting the request, theinterview may be rescheduled or waived, as appropriate. If the district director waives theinterview, he or she shall restore the aliens conditional permanent resident status, cancel anyoutstanding order to show cause in accordance with §242.7 of this chapter, and proceed toadjudicate the aliens petition. If the district director reschedules that aliens interview, he or sheshall restore the aliens conditional permanent resident status, and cancel any outstanding orderto show cause in accordance with §242.7 of this chapter. If the interview is rescheduled at therequest of the alien, the Service shall not be required to conduct the interview within the 90-dayperiod following the filing of the petition.8 CFR § 235.11 Admission of conditional permanent residents.(c) Expired conditional permanent resident status. The lawful permanent resident alien status ofa conditional resident automatically terminates if the conditional basis of such status is notremoved by the Service through approval of................., in the case of an alien entrepreneur (as 3 I-829s WILL NEVER BE BEFORE AN IJ OR THE BIA
  4. 4. defined in section 216A(f)(1) of the Act), Form I–829, Petition by Entrepreneur to RemoveConditions. Therefore, an alien who is seeking admission as a returning resident subsequent tothe second anniversary of the date on which conditional residence was obtained (except asprovided in §211.1(b)(1) of this chapter) and whose conditional basis of such residence has notbeen removed pursuant to section 216(c) or 216A(c) of the Act, whichever is applicable, shall beplaced under removal proceedings. However,............... In the case of an alien entrepreneur,removal proceedings may be terminated and the alien admitted as a returning resident ifthe required Form I–829 is filed by the alien entrepreneur and approved by the Service.There are numerous investor cases since the INS created the category in 1966. My in-depthsurvey is posted at: http://www.slideshare.net/BigJoe5/a-survey-of-the-immigrant-investor-visa-1966-2011-june-27-2011-jwMore items of interest are found at: http://www.slideshare.net/BigJoe5 4 I-829s WILL NEVER BE BEFORE AN IJ OR THE BIA

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