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Joe whalen’s year in review 2012 includes December issue Document Transcript

  • 1. Joe Whalen’s EB-5 Roundup January 27, 2012Some Pros and Cons of “Stand- to be allocated to any partner who is NOT seeking an EB-5 visa. So if a single EB-5 investor partnersAlone” EB-5 Investments with two, or five, or ten non-EB-5 investors then ALL jobs created by the group can be used byIf I go it alone, I am the “Boss”! I am the policy the single EB-5 investor to lift the conditions frommaker and I can implement my own vision! Great, status for him/herself, a spouse, and their kids.but then you are also left holding the bag and areresponsible for EVERYTHING!EB-5 is not for a “mom-n-pop” operation. Not only Joe Whalen has years of experience in immigrationmust you eventually show proof of ten (10) full- adjudication. He is mosttime permanent jobs for qualifying U.S. employees; responsible for growing theyou, your spouse, sons and daughter (regardless of EB-5 Regional Centerage or marital status)—don’t count! You cannot Program from obscurity into a thriving growth industry.add together your “part-time” employees or countthem at all. ALL the ten (10) required jobs must be Joseph P. Whalenyour own “on-the-books” work authorized “direct” e-mail: Silver.SurferEB5@gmail.com oremployees. Unlike a Regional Center affiliated joseph.whalen774@gmail.cominvestor, NO “indirect” jobs count for anything! TWO Key Building Blocks forTrue “Stand-Alone” investing under EB-5 is best Regional Center Proposalsleft to a real entrepreneur with vision and aproduct, process, or service unlike anyone else in The Business Plan (BP) must come first. The BP isthat field OR in a field with tons of room for the primary source of categories for required data togrowth, even if the EB-5 is not truly unique as long be used as input into an Econometric Methodologyas sufficient jobs can be created. or Model in order to produce a viable Economic Analysis (EA). That EA will contain job creationStand-Alone investing does not always mean going predictions (or projections). It is that credible finalit alone. Stand-Alone is used synonymously with job count that will determine how many EB-5“Regular” or “non-affiliated” (meaning not investors that any project will support. The BP is, ofaffiliated with a Regional Center). EB-5 investors course, project-specific. That might be a real,are allowed to take on partners even outside the actual, “shovel-ready” project or it might be ancontext of a Regional Center. Those partners might exemplar or representative project demonstratingbe other EB-5 investors, domestic investors, or “the kinds of commercial enterprises that willother foreign investors who are NOT seeking an receive capital from aliens” [§610(a)EB-5 visa. The drawback of partnering with other (Appropriations Act 1993) or 8 USC §1153 Note].EB-5 investors is that each EB-5 investor must be I will build on these themes at a presentations at theable to claim ten (10) qualifying full-time April 27, 2012, Event in NYC.employees apiece. Two (2) investors need twenty See more at: http://www.eb5newyorksummit.org/ and(20) employees, three (3) need thirty (30), etc... The Register here: http://newyorksummit.eventbrite.com/ &flipside of that is that any jobs created do NOT have See me at: http://eb5news.blogspot.com/ Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 2. Joe Whalen’s EB-5 Roundup February 19, 2012Tenant-Occupancy Methodology an overabundance of poor quality Business Plans and associated substandard Economic AnalysesAnnouncement from USCIS based upon them. I urge folks to re-read Matter ofOn Friday February 17, 2012, USCIS sent out a Izummi and my various articles on EB-5 money-to-message concerning EB-5. They entitled it “Tenant jobs Nexus. I ask that once these promised RFEsOccupancy” and the major points are laid out come along that folks share the contents.below.  For purposes of the job creation requirement numerous I-924 Applications have utilized what has been commonly termed a “tenant- Joe Whalen has years of occupancy” methodology. experience in immigration  The “tenant-occupancy” methodology seeks adjudication. He is most credit for job creation by independent tenant responsible for growing the businesses that lease space in buildings EB-5 Regional Center developed with EB-5 funding. Program from obscurity into a thriving growth industry.  USCIS continues to recognize that whether it is economically reasonable to attribute Joseph P. Whalen such “tenant-occupancy” jobs to the e-mail: Silver.SurferEB5@gmail.com or underlying EB-5 commercial real estate joseph.whalen774@gmail.com project is a fact-specific question.  Each case filed will depend on the specific Upcoming In-Person Events facts presented and the accompanying I will be discussing the latest developments in EB-5 economic analysis.  USCIS adjudications will continue to be especially to do with Regional Centers at two made on a case-by-case basis. presentations in April. I will serve as a faculty  USCIS does not intend to revisit factual member at the American Immigration Lawyers findings. Association (AILA) 2012 EB-5 Investor &  I-526, Immigrant Petitions by Alien Regional Centers Conference: A Practice Skills Entrepreneurs and I-829, Petitions by Workshop to be held Friday - Saturday, April 20- Entrepreneurs to Remove Conditions will 21, 2012 at the Atlantis Resort Hotel in Nassau, have predictability in connection with early Bahamas. Please check the AILA EB-5 Conference regional center adjudications. webpage for the Event Agenda. AILA has filed forI find the message strange and wonder why it was CLE and specialized credit in all jurisdictions withsent. Is it some type of “heads-up” for an mandatory CLE and specialized requirements.impending onslaught of RFEs, NOIDs, and/or Registrations Information is found here.Denials? I must wonder if, in fact, a huge numberof piss-poor Regional Center Proposals were filed The following week I will present at the Fridayin a mad rush in an attempt to beat the I-924 Fee. April 27, 2012, Event in NYC. See more at:Has USCIS been sitting on a pile of crap for a yearwondering what to do? http://www.eb5newyorksummit.org/ and Register here:My best guess is that this issue boils down to http://newyorksummit.eventbrite.com/ &mostly a NEXUS problem but they didn’t know See me at: http://eb5news.blogspot.com/what to call it. An additional problem is likely to be Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 3. Joe Whalen’s EB-5 Roundup March 5, 2012There is More to the EB-5 ImmigrationPilot Program than Regional Centers Small-Scale, Single Project Regional Centers Need Not Apply!Some folks have begun to panic needlessly. The EB-5Immigration Pilot Program is not about to come to a If you believe the statute, then in order to obtainsudden demise. The Customer-Base has blossomed and approval as a Regional Center in the first place, youin their enthusiasm, some folks have cast their nets too cannot start too small as in with a single kind ofwidely, prematurely, or in an empty pond. I see some commercial enterprise. Some USCIS adjudicators seemunderlying issues that folks need to closely consider as confused about that issue as the would-be Regionalbefore venturing into EB-5 or re-examine prior to filing Center applicants.any challenges to CSC via Motions or AAO via Appeals. If you start with only one very limited possibility and itNot all the plans currently seeing RFEs are worth fails then you’re dead from the start with nowhere to go.fighting for “as is”. It may be more practical and In addition, the Regional Center is not supposed to be aeconomical to withdraw and file a new application later. short-term, single-project investment scheme with littleThere are some fundamental misconceptions floating or no growth potential.about that practitioners (as well as USCIS) need to meet What would be the point of placing the Regional Centerhead on and put to rest once and for all. into a Program if a single-shot developer could get Regional Center Designation and allow EB-5 investorsWhat is the True Nature of the to use it as a means to include indirect jobs for a singleImmigration Pilot Program? project and then close its doors? It would defeat the Congressional Intent of creating an on-going ProgramTo date, we have all been fooled (including yours truly) comprised of a new business infrastructure consisting ofinto referring to this visa pathway as the Immigrant Regional Centers as a conduit to drawing foreignInvestor Pilot Program. That is what INS named it in the investors into the U.S. economy. At least that’s how Iregulations. However, if you closely read the statute and see it.follow the threads (cross-references) it should be called I can see one large-scale, multi-faceted, mixed-usethe Employment Creation Visa Pilot Program. 1 project2 as a starting point upon which a Regional CenterThe Regional Center is a fundamental prerequisite entity can “cut its teeth” because it would addresscomponent of the EB-5 Pilot Program. A Regional multiple components. For example, a first effort mightCenter Proposal may be somewhat “general” but with include: retail space, food and beverage operations,enough specificity as to: the kinds of commercial transient housing, various types of office space, variousenterprises that will receive capital from aliens, a service businesses, and/or an entertainment venuelimited geographic area, as well as the direct and (theatre). If a huge factory is being built, it is likely toindirect jobs, and the other positive economic effects require specific infrastructure developments to supportsuch capital investments will have. it. Rail spurs, docks, road building and maintenance, utilities expansion, sanitation projects, services to theIn addition, the Pilot Program allows the EB-5 investors new workforce as well as the new business. Additional(through their Regional Center partners’ efforts) to independent projects that utilized any one or aestablish reasonable methodologies for determining the combination of the various “kinds of commercialnumber of jobs created. The preceding criteria have all enterprises” already addressed would then be availablebeen pulled directly from the statute so are of paramount for additional investment opportunities.importance to the successful establishment of a RegionalCenter.1 2 See http://www.slideshare.net/BigJoe5/what-is-the- See http://www.slideshare.net/BigJoe5/rc-affilated-eb5-immigration-pilot-program structure-option Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 4. Joe Whalen’s EB-5 Roundup March 5, 2012Piggybacking Efforts vs. Stolen Glory; take credit for the jobs already created by someone else’s efforts. So, if a Regional Center wants to count andand Too Much Risk Avoidance in EB-5 allocate the jobs from day one, they need to be committed at the groundbreaking or almost immediatelyThe next problem that I can readily see are situations thereafter. This is not to say that the Regional Centerwhere the RC hangs back searching for a project that has must obtain all of its EB-5 investors prior to breakingalready broken ground. If you wait until too late in the ground, merely that the Regional Center be committed toproject before committing to it, there is not much left for the project it wishes to promote to aliens seeking EB-5you to take credit for. Now, here are some possibly and visas early enough in order to reasonably lay claim tohopefully useful clichés to help you see this point better. those early jobs. It is also in these early commitment situations where the various potential financialThese first few relate to timing : maneuvers need to be laid out to USCIS. The Regional Center is more free to be creative than many incorrectly  The early bird gets the worm. (Right to claim believe. early created jobs.)  Arriving [too] late to the party. (Too few jobs created after joining in.) Joe Whalen has years of  Missing the boat. (Trying to buy-in to a experience in immigration completed project.) adjudication. He is most responsible for growing  Haste makes waste. (Committing TOO early to a the EB-5 Regional Center low job-yield project.) Program from obscurity  Life is passing you by. (Again, trying to buy-in into a thriving growth to a completed project.) industry.These next few clichés relate to nexus3: Joseph P. Whalen  Riding coattails. (Piggybacking off someone e-mail: Silver.SurferEB5@gmail.com or else’s success in a good way.) joseph.whalen774@gmail.com  Building a foundation. (Creating job creation opportunities for your “project partners”.) Upcoming In-Person Events  Stolen glory. (Piggybacking off someone else’s I will be discussing the latest developments in EB-5 success in a bad way.) especially to do with Regional Centers at two presentations  Someone “standing on your shoulders” vs. you in April. I will serve as a faculty member at the American “standing on theirs”. (Need to strike a balance.) Immigration Lawyers Association (AILA) 2012 EB-5 Investor & Regional Centers Conference: A Practice Skills Workshop to be held Friday - Saturday, April 20-So how does any of that relate to a Regional Center? 21, 2012 at the Atlantis Resort Hotel in Nassau, Bahamas.Risk avoidance is a natural instinct. Unfortunately, in Please check the AILA EB-5 Conference webpage for theEB-5 at any rate, too much risk avoidance defeats the Event Agenda. AILA has filed for CLE and specializedCongressional Intent of the Regional Center Program.Congress chose to reward aliens with visas for taking a credit in all jurisdictions with mandatory CLE andchance on the United States through their efforts to specialized requirements. Registrations Information isincrease employment opportunities and otherwise found here.promote economic growth. Congress did not envisionallowing aliens to usurp the successes of someone else The following week I will present at the Friday April 27,and “buy” a well-advanced or completed project and 2012, Event in NYC. See more at: http://www.eb5newyorksummit.org/ and3 See http://www.slideshare.net/BigJoe5/how-many-kinds-of- Register here: http://newyorksummit.eventbrite.com/ &nexus-can-you-find-within-eb5 See me at: http://eb5news.blogspot.com/ Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 5. Joe Whalen’s EB-5 Roundup April 1, 2012 USCIS was too obsessed with “verifiable detail” for its“Best Practices”: Key to EB-5 Investors’ own or anyone’s good. It is quite possible and probable & Regional Center’s Success that the actual entities that are being handed the aliens’ money will be some kind of intermediary player such as a “lender”, “project financer” or a “project developer”I urge folks to adopt “best practices” in whatever they do such as a “construction company”. USCIS needs tobut running a Regional Center (RC) is an area where revisit the I-924A, and Congress & the Regional Centerfolks still need to identify what those “best practices” Industry need to speak up about this issue.are. Far too often RC sponsors have poured all theireffort into just being designated and only paid lip-service Be Proactive and Creative & Adapt!to their plans for later compliance and paid even lessattention to the “Designees’ Responsibilities” listed onthe older Approval Notices. Admittedly, the initial The Treasury Department has just published “Proposedattempt to give RC sponsors an idea of what information Guidance on Leveraged Lending” in the Federal Registerto track was a bit wordy and confusing. However, the which may be of some use to the Regional Centercreation of the Form I-924A also falls short of success. Industry. See 77 FR 19417-19424 (03/31/2012).I ask that everybody take a step back and ask The proposed guidance describes expectations for thethemselves: “What did Congress ask for in the first sound risk management of leveraged finance activities,place?” It seems that Congress created a program to spur including the importance of institutions developing andoverall regional economic growth and job creation in maintaining:order to aid their districts and States. With that in mind,they want to know how many and what kinds of jobs are  Transactions that are structured to reflect abeing created (or preserved) and what segments of the sound business premise, an appropriate capitaleconomy (industries) in their districts and States are structure, and reasonable cash flow and balancebeing helped by the efforts of these Regional Centers. sheet leverage. Combined with supportable performance projections, these considerationsThe I-924 Application asks the applicant to identify the should clearly support a borrowers capacity tovarious “kinds of commercial enterprises that will repay and de-lever to a sustainable level over areceive capital from aliens” as well as the “jobs that will reasonable period, whether underwritten to holdbe created”...“and other economic effects such capital or distribute.investment will have”. 8 USC § 1153 note or § 610 (a).  A definition of leveraged finance thatThe I-924 asks for the NAICS codes for the “industrial facilitates consistent application across allcategories” that are discussed in the comprehensive, business lines.detailed, and credible Business Plan. These might be:  Well-defined underwriting standards that,hotels, restaurant, medical clinics, office buildings, retail among other things, define acceptable leveragestores, or factories. Some of those may be described by levels and describe amortization expectations forwhat kinds of tenants that the buildings will house; senior and subordinate debt.medical vs. legal professional offices; or clothing vs.  A credit limit and concentration frameworkhardware vs. grocery retail stores. The NAICS codes that is consistent with the institutions riskthat support the plan and the job projections are what I appetite.believe Congress; the American people; academics;  Sound MIS that enable management tothink-tanks; the various local, state and federal agencies; identify, aggregate, and monitor leveragedand the media want reported. That is what I would want exposures and comply with policy across allto know about. business lines.  Strong pipeline management policies andHowever, contrary to what everyone would want to procedures that, among other things, provide forknow about, the I-924A Supplement asks for NAICS real-time information on exposures and limits,codes that describe the actual legal entities that can be and exceptions to the timing of expectednamed and supported with specific documentation. distributions and approved hold levels. Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 6. Joe Whalen’s EB-5 Roundup April 1, 2012 These plaintiffs say that their money has beenDon’t Let EB-5 RC History Repeat Itself! grossly mismanaged, diverted via fraud, and that the defendants have been unjustly enriched at plaintiffs’When the EB-5 Visa was new and then theRegional Center was created, many things went expense through duplicitous means.wrong very fast and the program collapsed. It has An Order Dismissing an ex parte Motion foronly recently made a comeback and I see some Preliminary Injunction was already issued, w/ounsavory things happening. Unless serious effortsare made, EB-5 may collapse again. prejudice. The plaintiffs seek receivership to protect what little assets may be left but as theThat said, it is not hopeless. Good projects still expedited discovery Motion was referred to aexist. Workable methodologies are out there. There Magistrate Judge, receivership was deemedare viable Regional Centers in-place and more will premature.come on board. Don’t give up hope but at the sametime, don’t turn a blind eye. Joe Whalen has years of Lawsuits: As American as Apple Pie of experience in immigrationcourse, apple pie was imported from England. adjudication. He is most responsible for growingAnd so it begins ..... the EB-5 Regional Center Program from obscurityZhen et al. v. SDRC, Inc. et al., CIV. 11-4148-KES into a thriving growth(So. Dist. So. Dakota), Filed: October 18, 2011 industry.http://eb5info.com/system/documents/209/original/ Joseph P. WhalenZhen_v_SDRC.pdf?1331404066 e-mail: Silver.SurferEB5@gmail.com or joseph.whalen774@gmail.comThese plaintiffs say that information was withheld Upcoming In-Person Eventsfrom the Private Placement Memorandum (PPM). I will be discussing the latest developments in EB-5While the investor has a duty to perform Due especially to do with Regional Centers at two presentationsDiligence, the PPM is supposed to contain a full and in April. I will serve as a faculty member at the Americanhonest disclosure. It is not a case of “he said he Immigration Lawyers Association (AILA) 2012 EB-5said” when it is in writing or conspicuously absent. Investor & Regional Centers Conference: A Practice Skills Workshop to be held Friday - Saturday, April 20-An Order Dismissing a Motion to Dismiss was 21, 2012 at the Atlantis Resort Hotel in Nassau, Bahamas. Please check the AILA EB-5 Conference webpage for thealready issued. More plaintiffs were added later and Event Agenda. AILA has filed for CLE and specializedwithin the time allowed for amending the credit in all jurisdictions with mandatory CLE andComplaint and there had been no responsive specialized requirements. Registrations Information ispleading. found here. The following week I will present at the Friday April 27,Sumpter et al. v. Hungerford et al., No. 12-717 2012, Event in NYC. See more at:(E.D. Louisiana) Filed: March 15, 2012 http://www.eb5newyorksummit.org/ andhttp://dockets.justia.com/docket/louisiana/laedce/2: Register here: http://newyorksummit.eventbrite.com/ &2012cv00717/149902/ See me at: http://eb5news.blogspot.com/ Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 7. Joe Whalen’s EB-5 Roundup May 2012“Sufficient Nexus” Is The Critical Key To Your Business Plan Is Your Blueprint ForEach & Every Regional Center-Affiliated Your Economic Analysis EB-5 Investors’ Success Don’t leave your economist in a lurch! If you fail to be specific about what your economist needs to address,I suggest that the RC’s business plan writer try to thinklike a journalist and emulate Jack Webb’s character (s)he might not provide you with a useful economicfrom Dragnet. Specifically, strive to clearly state “just analysis. You would not allow your home-builder tothe facts, ma’am” in the classic journalistic style of: work without blueprints. In that same vein, tell your“Who, What, Where, When, Why, and How”. Remember economist what his/her “work product” must addressthe following questions are only a starting point and and accomplish. There are specific items listed in theexpansion is welcome. Lastly, while enough specificity is EB-5 laws that must be included and addressed. Yourrequired, overly restricting & constricting yourself is not. business plan writer is the architect in this effort, andHere are some factors to address when your economist is the contractor. When you order abuilding & presenting the case for nexus: pizza, you decide which toppings you want on it, right? 1) Who created, is in the process of creating, or will be creating the new jobs? [Alternatively, Joe Whalen has years of preserving jobs is OK and preservation can be experience in immigration combined with new job creation under certain adjudication. He is most defined and qualifying circumstances.] responsible for growing the 2) What are the palpable and palatable connections EB-5 Regional Center between THOSE jobs and THAT EB-5 money Program from obscurity and/or the efforts of the EB-5 investors and their into a thriving growth Regional Center? What mechanisms or industry. documentation will demonstrate these facts? Joseph P. Whalen [Clearly state your assumptions and expectations up front in order to set the stage to prove it later e-mail: Silver.SurferEB5@gmail.com or on at the back end! The I-829 will need evidence joseph.whalen774@gmail.com to prove predictions & substantiate fulfillment of the previously stated & defined conditions Recent In-Person Events precedent needed to show the project’s success.] I discussed the latest developments in EB-5 especially to do 3) Where are the jobs located (in which businesses with Regional Centers at two presentations in April. I and in which geographic location)? served as a faculty member at the American Immigration 4) When will the EB-5 money be committed or when was that money committed? When were Lawyers Association (AILA) 2012 EB-5 Investor & the jobs created, or when are the jobs going to Regional Centers Conference: A Practice Skills be created? When were all funds committed Workshop held Friday - Saturday, April 20-21, 2012 at and/or obligated to the overall project? In other the Atlantis Resort Hotel in Nassau, Bahamas. Please words, when did the Regional Center commit check the AILA EB-5 Conference webpage for the Event itself and its investors to the overall project? Agenda. AILA filed for CLE and specialized credit in all 5) Why should THOSE jobs count for THESE jurisdictions with mandatory CLE and specialized EB-5 investors? requirements. AILA has posted some items. 6) How are the various participants interdependent on each other in the ultimate success or failure The following week I presented at the Friday April 27, of the overall project? Bridge financing anyone? 2012, Event in NYC. See my Powerpoint Presentation at: REASONABLE RATES FOR TRAINING & CONSULTATION! http://www.slideshare.net/BigJoe5/nyc-eb5-presentation- april-27th-2012 and http://www.eb5newyorksummit.org/ Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 8. Joe Whalen’s EB-5 Roundup June 2012 “The Waiting Game” S. 3245: To Lawsuit Updates Permanently Reauthorize the EB–5 Zhen et al v. SDRC, Inc. et al Joint MOTION to Regional Center Program, etc... Dismiss Voluntarily Without Prejudice All Claims, Counterclaims, and Third-Party Claims by All Parties.Senators Leahy and Grassley introduced the latest bill to I sure hope they worked things out!make EB-5 Regional Centers permanent on May 24,2012. There is also a 3-year extension included in theDHS Appropriations bill as a backup plan. Please voice Sumpter et al v. Hungerford et al continues to progressyour support to your Congressional representative in the with a huge number of filings back and forth already inHouse and Senate. See: http://createsend.com/t/r- the docket and more on the way.BFAA92139C2F89FE or http://www.congress.org/news/to get started! Read the text of the bill at: Chicagoland Foreign Investment Group, LLC v.http://www.slideshare.net/BigJoe5/s-324-permanant- Napolitano et al, (N.D. IL, filed 4/10/12) is merely aextensions This bill would make four immigration Writ of Mandamus. I have no details but can guess thatprograms permanent and thus strong opposition to onecould defeat them all. they probably have a project that they want to get rolling on! After all, a Writ of Mandamus is a request to speed things up! Good Luck to them in that effort! Some of My EB-5 and Conceptual Articles And Postings of Interest Speak Up Now to Fix the I-924! 1) An Essay on Indebtedness as Capital for an EB-5 Investment is here. USCIS published a Federal Register Information 2) An Essay on the Original INS View of the Collection Request (ICR) Notice on May 10, 2012. You EB-5 Visa Requirements is here. may submit your comments on the I-924, Application for 3) An Essay on the EB-5 “Visa” as an Regional Center Under the Immigrant Investor Pilot Entitlement is here. Program, via email at USCISFRComment@dhs.gov. 4) An Essay on the Within the Scope Analysis Comments are encouraged and will be accepted for 60 for EB-5 I-829s is here. days until July 9, 2012. IF changes will be made at this 5) An Essay on Issue Preclusion or Collateral time, USCIS will inform us in the 30-day follow-up Estoppel in EB-5 Tenant Occupancy Notice after reviewing comments. Methodology is here. 6) Lists of My Published Articles are: here, here, and here. [52 as of this posting.] Joe Whalen has years of 7) My Treatise on the Historical Development of experience in immigration the Immigrant Investor Visa is here. adjudication. He is most 8) An essay on Initial Evidence and the Prima responsible for growing the EB-5 Regional Center Facie Case is here. Program from obscurity 9) An Essay on Threshold Issues and Case into a thriving growth Development is here and a follow-up on the industry. Back-End Burden of Proof is here. 10) My Presentation from the April 2012, NYC Joseph P. Whalen EB-5 Summit is here. 11) My Suggested Changes to 8 CFR § 204.6 (m) are found here. 12) My Thoughts on the Value of & How to e-mail: Silver.SurferEB5@gmail.com or Utilize an I-526 Exemplar are here. joseph.whalen774@gmail.com REASONABLE RATES FOR TRAINING & CONSULTATION! Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 9. Joe Whalen’s EB-5 Roundup July 2012 “Stand-Alone” or Non-Regional Center Your Business Plan Is Your Blueprint For EB-5 Investors Need Help Too! Your Successful I-526 Petition ApprovalWhile it is true that the vast majority of EB-5 investment Your Business Plan (BP) must be in accord with thedoes happen within the context of a Regional Center, it AAO Precedent Decision in Matter of Ho, 22 I&N Dec.is not at 100%. The typical Regional Center EB-5 206, 213 (Assoc. Comm’r, Exams 1998):investor is just that, an investor rather than a true “...To be “comprehensive,” a business plan must beentrepreneur. The original EB-5 visa was an outgrowth sufficiently detailed to permit the Service to drawof an earlier “labor certification exemption” crafted reasonable inferences about the job-creation potential.through regulations by INS in 1966-67, interpreting a Mere conclusory assertions do not enable the Service totype of special immigrant under the 1966 INA determine whether the job-creation projections are anyAmendments (spearheaded by the late Senator Edward more reliable than hopeful speculation.“Ted” Kennedy). A comprehensive business plan as contemplated by theThe 1966 Act referred to an undefined group of “other regulations should contain, at a minimum, a descriptionqualified immigrants” who did not need and therefore of the business, its products and/or services, and itsdid not require a labor certification from the Secretary of objectives. The plan should contain a market analysis,Labor. The Attorney General exercised the bulk of including the names of competing businesses and theirauthority under the INA via INS. Using the broad relative strengths and weaknesses, a comparison of thepowers to create regulations necessary to implement the competition’s products and pricing structures, and aprovisions of the law, INS promulgated 8 CFR § 212.8 description of the target market/prospective customers of(b)(4) which pertained to “an alien who will engage in a the new commercial enterprise. The plan should list thecommercial or agricultural enterprise in which he had required permits and licenses obtained. If applicable, itinvested or is actively in the process of investing a should describe the manufacturing or productionsubstantial amount of capital”. process, the materials required, and the supply sources.That single phrase in an old regulation eventually The plan should detail any contracts executed for theexpanded several times, fell out of use, and was revived supply of materials and/or the distribution of products. Itas EB-5 in the 1990 Immigration Act (IMMACT90). should discuss the marketing strategy of the business,The “basic” EB-5 Visa requirements have not changed including pricing, advertising, and servicing. The planmuch with the notable exception of dropping “exports” should set forth the business’s organizational structureas an essential component. and its personnel’s experience. It should explain the business’s staffing requirements and contain a timetableThat said, what are the basic requirements for this visa? for hiring, as well as job descriptions for all positions. It should contain sales, cost, and income projections andHere are the factors to address when detail the bases therefor. Most importantly, the businessapplying for a “stand-alone” EB-5 visa: plan must be credible.” [Bold in Original.] 1) Have enough money to invest and be able to demonstrate that it is your own lawful funds; & Joe Whalen has years of 2) Submit evidence that you already created 10 experience in immigration full-time permanent jobs for qualifying adjudication. He is most employees; or responsible for growing the 3) Submit a comprehensive, detailed, and credible EB-5 Regional Center Business Plan to create the required 10 Program from obscurity permanent full-time jobs for qualifying into a thriving growth employees within the time allowed until you industry. have to submit the petition to lift conditions. Joseph P. Whalen REASONABLE RATES FOR TRAINING & CONSULTATION! e-mail: Silver.SurferEB5@gmail.com or joseph.whalen774@gmail.com Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 10. Joe Whalen’s EB-5 Roundup August 2012 rolling on! After all, a Writ of Mandamus is a request to My Article: “Different Reviews for speed things up! Good Luck to them in that effort! Different Underlying INA Proceedings” Chicagoland filed a Notice of Voluntary Dismissal onwas the most accessed article in Immigration June 18, 2012. I again have no details but it’s over and I Daily “Top Five” list for July 2012. for one did not see any major media reports of scandals about this!Evidently, I say something that folks show interest in orthey would not bother to read what I write. In theprevious month, my article “Some EB-5 Facts That Speak Up Now to Help Shape the FutureHave Been Forgotten” was in the number 2 spot on the USCIS has advertised for a large contingent of attorneysJune 2012 list published on July 2nd. That’s pretty good and economists for various programs and especially EB-considering it was initially published on June 28th. My 5. They have also advertised for an EB-5 Program Chief.article “Discussing District Court Standards In The next iteration of the “MEMO” has yet to see theReviewing USCIS Denials Of Certain Applications & light of day despite the prior assertions that it is almostPetitions” which was originally published on May 4th, ready for posting. Wake me up when something hits thewas listed at number 3 on the list of June 4, 2012. scene. Slow Follow-Up & Stats from USCIS Joe Whalen has years ofUSCIS is attempting to continually improve its outreach experience in immigrationand public engagement efforts. EB-5 would appear to be adjudication. He is mosta shining example, or would it? They still keep us responsible for growing thewaiting until the last moment for the statistics. The stats EB-5 Regional Centerare not really explained in any practical way (or in any Program from obscurityway at all). We then see the stats twisted to support a into a thriving growthpoint of view based on wild assumptions, misperceptions industry.and misconceptions. “Antis” flout the dismal absence ofany success of EB-5 investments. “Pros” might warp thenumbers as representing the maximum possibleachievements and overstating the bottom line results. In Joseph P. Whalengeneral, the immigration practitioners misstate the true e-mail: Silver.SurferEB5@gmail.com ortimelines from one step to the next. That is usually joseph.whalen774@gmail.combecause the don’t understand the process and fail to takeinto account the realities of that process. In Other INA News REASONABLE RATES FOR TRAINING & CONSULTATION! I have noticed several recent decisions from the Circuit Courts of Appeals discussing the lack of follow up to the EB-5 Lawsuit Updates creation of DHS and the shift of statutory authoritySumpter et al v. Hungerford et al continues to progress under the INA. The failure to keep pace with change iswith a huge number of filings back and forth already in not new. It has been a problem forever and a day andthe docket and more on the way. I checked on August 1, likely always will be. I previously noted some of this in2012 and the PACER Docket is up to 103 items filed. past articles as well. Here are but a very few samples:Chicagoland Foreign Investment Group, LLC v. • Nijjar v. Holder (9th Cir. Aug. 1, 2012)Napolitano et al, (N.D. IL, filed 4/10/12) is merely a • BIA Dismissal of DHS Appeal ActuallyWrit of Mandamus. I have no details but can guess that Supports DHS Leadershipthey probably have a project that they want to get • Different Reviews for Different Underlying INA Proceedings and more..... Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 11. Joe Whalen’s EB-5 Roundup September 2012 Collection it began back on May 10, 2012. An REASONABLE RATES FOR TRAINING & CONSULTATION! “Information Collection” can encompass mundane activities. This is a Notice that announced a desire to Latest Big EB-5 News extend these two forms “as is” without change. I for one say they NEED CHANGES! I previously spoke outEB-5 Investor Sues USCIS for Denying His I-829 asking others to make suggestions on how to improve the form during the first round of this InformationChung et al v. USCIS et al was filed in the Central Collection. Only AILA submitted a comment on July 9,District of California on August 21, 2012. The EB-5 2012 (the last day to comment on prior 60-day Notice).investor in the failed South Dakota Dairy Farm is suing USCIS asked again and extended the deadline to submitUSCIS over their refusal to lift conditions and comments here until September 20, 2012. In thetermination of his and his family’s status. I find it alternative you can submit comments by regular (snail-disingenuous to claim that USCIS is heightening the mail) or e-mail to: uscisfrcomment@dhs.gov and/or toevidence standard by verifying the documentary oira_submission@omb.eop.gov. I have submitted someevidence that was submitted to it. Thats like comments here and here. Where are YOURS?saying USCIS should not be allowed to discover fraudbeing perpetrated on it! A bunch of USCIS Noticesand Decisions have been plucked from the court records Joe Whalen has years ofand posted here. Look here for a new essay soon! experience in immigration adjudication. He is mostEB-5 Investor Arrested Over Dirty Money Issues responsible for growing the EB-5 Regional CenterIsraeli national Ofer Biton was busted by the FBI due Program from obscurityto financial shenanigans connected to his EB-5 into a thriving growthinvestment. The complaint does not identify any industry.Regional Center or any particular EB-5 funded project.This case has grabbed headlines NOT because of theEB-5 aspect but rather because he was associated with aMember of Congress and acted as a fundraiser. I have to Joseph P. Whalenwonder if there is any criminality associated with that e-mail: Silver.SurferEB5@gmail.com oractivity as well as the EB-5 Visa Fraud Charge that was joseph.whalen774@gmail.comactually lodged against him? I also have to wonder if theEB-5 Visa Fraud charge was merely the expedient In Other Newsmeans to locking him up while they look at “other” andperhaps “more serious” crimes? It’s just a guess! I have continued to watch the Courts, FR, BIA, & AAO for anything new of interest. Many of the items inspire EB-5 Lawsuit Update an essay or article. I post at the websites linked in the footer and submit many for publication in ImmigrationSumpter et al v. Hungerford et al continues to progress Daily from ILW.com. Incidentally, many of my articleswith a huge number of filings back and forth already in are now found on ILW’s EB-5 page. Here are a few ofthe docket and more on the way. I checked on my most recent essays posted on my Slideshare pages:September 2, 2012, and the PACER Docket is up to over • Current State of EB-5115 items filed. One of them is the Defendants’ Motion • Dirty Money & Tainted Investors Ruin EB-5...to Dismiss. Read it if you care, ignore it you don’t. • Deference in Immigration Matters: ...... • Double Speak In Action.... Speak Up Now to Help Shape the Future • Further Discussion....RC...LicensureUSCIS has published in the Federal Register, an • ...Business PlanWriter...extension of the I-924 and I-924A Information • ...EB-5...Confusion About Exemplars • ...Wave of the Future... Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 12. Joe Whalen’s EB-5 Roundup September EXTRA 2012 the form during the first round of this Information REASONABLE RATES FOR TRAINING & CONSULTATION! Collection. Only AILA submitted a comment on July 9, 2012 (the last day to comment on prior 60-day Notice). Latest Big EB-5 News USCIS asked again and extended the deadline to submit comments here until September 20, 2012. In theAAO Posts 3 Regional Center Appeal Dismissals alternative you can submit comments by regular (snail- mail) or e-mail to: uscisfrcomment@dhs.gov and/or toWhile the dates of these AAO non-precedential oira_submission@omb.eop.gov. I have submittedAdministrative Decisions are rather old, I first saw them several comments. Where are YOURS?on the USCIS website on September 12, 2012. For thosewho do not know about such things as FOIA/PA, just Joe Whalen has years ofknow that there are steps that must be followed before experience in immigrationdecisions may be posted. Additionally, cases can drag on adjudication. He is mostand on while details get sorted out. I say, just be glad we responsible for growing thehave more decisions posted at all, things will get better EB-5 Regional Centeras long as we have something to learn from. I have re- Program from obscurityposted these AAO Decisions w/comments added and into a thriving growthwrote essays inspired by them. Here are links: industry. Joseph P. WhalenJanuary 18, 2011 Dismissal Posted EssayNovember 23, 2010 Dismissal Posted EssayNovember 10, 2010 Dismissal Posted EssayBonus: Regional Center Application Balancing Acts e-mail: Silver.SurferEB5@gmail.com or joseph.whalen774@gmail.com Upcoming EB-5 Engagement In Other NewsToday (9/17/12) is USCIS’ “Deadline” for submitting The House followed the Senate and extended the Pilot“Agenda Items & Questions” for the October 16, 2012, Program through Sept. 30, 2015. I have continued toStakeholder Engagement, speak up and submit watch the Courts, FR, BIA, & AAO for anything new ofsomething, please. I don’t put much stock in these interest. Many of the items inspire an essay or article. Ideadlines because it makes little to no difference if it is post at the websites linked in the footer and submit manymet or not. If USCIS wants to answer a question they for publication in Immigration Daily from ILW.com.will even if it is late. USCIS will also gladly ignore a Incidentally, many of my articles are now found onconcern even if it meets their “Deadline”. That said, I ILW’s EB-5 page. Here are a few of my most recentsubmitted items: Part I and Part II. The second item was essays posted on my Slideshare pages:also specifically submitted to the CIS Ombudsman, • PROHIBITED Divide and Conquer Analysisplease send any of your EB-5 concerns as well. • Multiple Prongs & Multiple Steps • EB-5 Fraud Exposed and DefeatedSpeak Up Now to Help Shape the Future: • RC as Last Addition to Economic Infrastructure Time Is RUNNING OUT! • Regional Center’s RESPONSIBILITIESUSCIS has published in the Federal Register, an • Dirty Money & Tainted Investors Ruin EB-5...extension of the I-924 and I-924A Information • Deference in Immigration Matters: ......Collection it began back on May 10, 2012. An • Double Speak In Action....“Information Collection” can encompass mundane • Further Discussion....RC...Licensureactivities. This is a Notice that announced a desire to • ...Business PlanWriter...extend these two forms “as is” without change. I for one • ...EB-5...Confusion About Exemplarssay they NEED CHANGES! I previously spoke out • ...Wave of the Future...asking others to make suggestions on how to improve • On I-485 “Appeals” Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 13. Joe Whalen’s EB-5 Roundup October 2012 submitted to the CIS Ombudsman, please send any of REASONABLE RATES FOR TRAINING & CONSULTATION! your EB-5 concerns as well. Latest Big EB-5 News Disappointing Response from EB-5 Stakeholders on Form Revisions!EB-5 Regional Center Program, No Longer Pilot USCIS published in the Federal Register, an extensionThe House followed the Senate and extended the Pilot of the I-924 and I-924A Information Collection it beganProgram through Sept. 30, 2015. The President signed it back on May 10, 2012. USCIS extended the commenton September 28, 2012. The word “pilot” has been period through September 20, 2012. Aside from mystruck from the law and the program was reauthorized comments, AILA submitted a second comment and oneunder the section heading “EB-5 Regional Center other Law Firm/Group submitted a comment. All theProgram”. I wrote about it here. points made are worthy of study and discussion. Please see the Federal Register online Docket here.Defining “Tenant-Occupancy” Methodology?The complaint in Carlsson et al. v. USCIS et al., Joe Whalen has years ofopened my eyes about what USCIS might have experience in immigrationbeen talking about when it denounced this adjudication. He is most responsible for growing themethodology. I wrote about it here. I have added EB-5 Regional Centercomments to the complaint but I am not posting it. Program from obscurity intoIf you want a copy, e-mail me and ask for it. a thriving growth industry.AAO Posted More I-526 Appeal DismissalsWhile the dates of these AAO non-precedential Joseph P. WhalenAdministrative Decisions are rather old (January 2011),I first saw them on the USCIS website on September 29, e-mail: Silver.SurferEB5@gmail.com or2012. For those who do not know about such things as joseph.whalen774@gmail.comFOIA/PA, just know that there are steps that must befollowed before decisions may be posted. Additionally, In Other Newscases can drag on and on while details get sorted out. I In 2009, President Obama issued an Executive Ordersay, just be glad we have more decisions posted at all, directing agencies to review regulations. They have beenthings will get better as long as we have something to doing so methodically (slowly). On September 28, 2012,learn from. I made a short compilation with links to the EOIR published a Federal Register Notice in which onedecisions, cut and pasted some excerpts and, as usual, I of my suggestions for joint DOJ-DHS Rulemaking isadded some pithy commentary. See here. being seriously considered. Please see here. Upcoming EB-5 Engagement I have continued to watch the Courts, FR, BIA, & AAO for anything new of interest. Many of the items inspireOn October 16, 2012, USCIS will hold its next EB-5 an essay or article. I post at the websites linked in theStakeholder Engagement. Although their announced footer and submit many for publication in Immigration“deadline” for submitting questions or agenda items has Daily from ILW.com. Incidentally, many of my articlespassed, speak up and submit something anyway. I don’t are now found on ILW’s EB-5 page. Some of my recentput much stock in these deadlines because it makes little essays are posted online at:to no difference if it is met or not. If USCIS wants to A Trade Off Between Quality and Quantity in EB-5answer a question they will even if it is late. USCIS will OCAHO Procedure & APA Applied to Regional Centersalso gladly ignore a concern even if it meets their Judging Quality of Evidence“Deadline”. That said, I timely submitted items: Part I How Will RC Decision Board Hearing Work?and Part II. The second item was also specifically Legal Framework for RC Adjudications Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 14. Joe Whalen’s EB-5 Roundup November 2012 REASONABLE RATES FOR TRAINING & CONSULTATION! Most Recent EB-5 Engagement Latest Big EB-5 News On October 16, 2012, USCIS held its latest EB-5 Stakeholder Engagement. As usual, the highly helpful Be Careful What You Complain About Suzanne Lazicki has posted information and aThe Chung case was dismissed for lack of jurisdiction recording at: http://blog.lucidtext.com/ and the EB-5after NTAs were issued. That was the impetus for filing community is once again grateful for it (just check theor so the complaint contended. One of the issues raised comments posted there). Also as usual, questions andwas that USCIS had not placed them in Removal concerns remain to be answered. USCIS did state thatProceedings and therefore they could not press their case they would post something soon. Of course, as we allbefore an IJ and then the BIA. Well, they got what they know by now “soon” is loosely defined (or undefined—asked for. I doubt it will do them any good. Even if you you decide). I am just going to hang back and wait.have not been paying attention to this case you may besomewhat familiar with it. The lead petitioner before the My Latest EB-5 Advocacy EffortsDistrict Court was the EB-5 investor whose I-829 wasdenied and certified to AAO in connection with the Recently, I have shifted gears in my training efforts. Asfailed South Dakota Dairy Farm. It was denied because more Regional Center hopefuls come forward, they neednearly all of the “EB-5 direct” employees were aliens to seek a competitive edge in their I-924s. In addition tounauthorized for employment in the United States. Will defining their roles as EB-5 service providers and athe IJ and BIA “rubber-stamp” AAO’s Decision to lasting part of the regional economic infrastructure, I amAffirm CSC’ Denial? Will Chung push the issue to the now pushing folks to concentrate on demonstrating theirNinth Circuit? Will we get a Precedent that confirms that Knowledge, Skills, and Abilities (KSAs) as a part ofillegal aliens do not count for EB-5 purposes? Does their initial Regional Center Proposals. I have writtenANYONE in their right mind actually need one? more about it here . I have also further explored the qualitative differences between the results demanded ofRedefining “Tenant-Occupancy” Methodology? the stand-alone true entrepreneurs vs. Regional Center Affiliated Investors, see here.The lawsuit Carlsson et al. v. USCIS et al., hasprogressed faster than expected. After the DistrictCourt Judge denied the plaintiffs’ request for an Joe Whalen has years ofinjunction and temporary restraining order against experience in immigrationUSCIS in a scathing 15-page order, I for one saw adjudication. He is most responsible for growing thethe writing on the wall and discussed it here. The EB-5 Regional CenterJudge set a conference shortly thereafter. That Program from obscurity intoresulted in a continuance until January 14, 2013, for a thriving growth industry.another conference BUT rapidly that date wasmoved forward to November 5, 2012. I sure hopesomeone out in Los Angeles can track anydevelopments or progress and share it! (Hint-Hint) Joseph P. Whalen e-mail: Silver.SurferEB5@gmail.com or I-924A Filing Period Has Opened joseph.whalen774@gmail.comRegional Centers are reminded that they may be requiredto make their annual progress and status report to In Other NewsUSCIS. 8 CFR § 204.6(m) requires USCIS to make sure EB-5 Investment Report Magazine is a relatively newthat Regional Centers are “continuing to promote online source of news and information. See here. Lookeconomic growth, improved regional productivity, job there for folks you might know. They have posted videoscreation, or increased domestic capital investment in the of interviews and reports. Let’s take a look and and giveapproved geographic area.” I wrote about it here. them a chance to make a difference. Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer
  • 15. Joe Whalen’s EB-5 Roundup December 2012 All of the above pales by comparison to what did happen: REASONABLE RATES FOR TRAINING & CONSULTATION! The regional center, the Capital Area Regional Center Job Fund (CARc), was designated as a regional center by U.S. Latest Big EB-5 News Citizenship and Immigration Services (USCIS) on November 25, 2005. On May 20, 2008, USCIS issued an e-mail I Figure that the Word Must Be Out acknowledging that CARc had obtained a new escrow agentBrian Su has invited me, among others to the Shanghai and had a new address. Subsequently, aliens began filingEvent in March 2013. That’s enough for now as I am Form 1-526 petitions based on an investment in CARc. These petitions were supported by substantially amended agreementssure more surprises will emerge. fi-om those submitted with the original regional centerStill defining “Tenant-Occupancy” Methodology? proposal in 2005. The Form 1-526s petitions did not disclose that these agreements had been amended fiom the 2005The lawsuit Carlsson et al. v. USCIS et al., brought agreements. In response to concerns raised by the Director,progress faster than expected as somewhat of a Texas Service Center (TSC), confirmed by the AAO onland-mark case in this issue. BUT WAIT....There certification, CARc sought an amendment of the proposal in March 2009, which was approved. The CSC directorseems to be even more to the story. After the approved a June 2009 amendment request on December 23,District Court Judge denied the plaintiffs’ request 2009.for an injunction and temporary restraining order ________________________________________________________against USCIS in a scathing 15-page order, I for one Be Sure to Give to a Friend in Need—EB-5saw the writing on the wall and discussed it here. Stakeholders: There is a CIS Ombudsman TeleconHowever, this Dec 08 2010,is as AAO posted it; specifically directed at improving AAO and lest not forget that there are current EB-5 Revisions out frothis version is my usual, but then comes the article. comment and if you have not figured it out USCIS is I-924A Filing Period Has Opened always OPEN FOR COMMENT!Regional Centers are reminded that they may be requiredto make their annual progress and status report to Joe Whalen has years ofUSCIS. 8 CFR § 204.6(m) requires USCIS to make sure experience in immigrationthat Regional Centers are “continuing to promote adjudication. He is mosteconomic growth, improved regional productivity, job responsible for growing thecreation, or increased domestic capital investment in the EB-5 Regional Centerapproved geographic area.” A handful read about in Program from obscurity intohere, 14 read more about it here, and this classic tale! a thriving growth industry. New EB-5 Programme Office Everything old is new again!USCIS/HQ circa Nov182008_01K1610.pdfFurther, if the appellant is suggesting that CIS staffshould have informally discussed the merits off the Joseph P. Whalenrecord, the AAO notes that ex parte communications are e-mail: Silver.SurferEB5@gmail.com orprohibited by the Administrative Procedure Act (APA), joseph.whalen774@gmail.com5 U.S.C. §706. P.2 CARc I-526 AAO Dismissal In Other NewsThis Decision covers multiple issues including among others: EB-5 Investment Report Magazine is a relatively new1) Provisions in Operating Agreements and various other documents; online source of news and information. See here. Look2) OFAC Licenses;3) NEXUS (but does not use that word); there for folks you might know. They have posted videos4) Path and source of lawful funds; of interviews and reports. Let’s take a look and and give5) Employment creation; them a chance to make a difference.6) TEA Gerrymandering;7) Business plans; and 8) Material Changes Visit me at: http://www.slideshare.net/BigJoe5 and http://eb5info.com/eb5-advisors/34-silver-surfer