Legal Framework for Regional Center Proposals and Associated EB-5 Petition Adjudication processes
 

Legal Framework for Regional Center Proposals and Associated EB-5 Petition Adjudication processes

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    Legal Framework for Regional Center Proposals and Associated EB-5 Petition Adjudication processes Legal Framework for Regional Center Proposals and Associated EB-5 Petition Adjudication processes Document Transcript

    • Legal Framework for Regional Center Proposals’and Associated Petitions’ Adjudication Processes By Joseph P. Whalen (September 22, 2012)IntroductionThe EB-5 Regional Center Program was just reauthorized via passage by bothHouses of Congress of S.3245. That bill was sent to the President for signature onSeptember 20, 2012 1. Section one (1) is entitled “REAUTHORIZATION OFEB-5 REGIONAL CENTER PROGRAM”. That section strikes the word“Pilot” wherever it appears and extends the Program through September 30, 2015(an additional three (3) years beyond the most recent “sunset” date). On the onehand, this is a remarkable move forward in that the program is officially no longerlabeled as a mere “Pilot Program”. I believe that if USCIS can succeed in refining,enhancing, and solidifying EB-5 procedures as it is currently trying to do, that thenext reauthorization may stand a much better chance at being a permanentenactment through simple elimination of any sunset date at all. We shall have towait and see about that. This essay shall endeavor to explain this author’sunderstanding of major underlying issues involved in this Program, regardless ofits new name.Basic EB-5 LawThe EB-5 immigrant visa is a permanent visa category and has been since themajor structural changes made via Pub. L. 101-649, the Immigration Act of 1990(IMMACT90). The basic immigrant visa category is part of the Immigration andNationality Act (INA) at Section (§) 203(b)(5) [8 USC § 1153(b)(5)]. As such, theimmigrant visa category does not now nor has it ever had an expiration date orneeded any reauthorization. This immigrant visa category has undergone someamendments over the years but most have been to the required follow up request toremove conditions from status required by INA § 216A [8 USC § 1186b].The Regional Center had existed as a “Pilot Program” since it was first created via§ 610 of Pub. L 102-395 (Judiciary Appropriations Act of 1993). The most recentlegislative reauthorization struck the word “Pilot” and appears to have renamed it1 President Obama is expected to sign the bill into law forthwith and it might even be signedbefore I finish composing this essay or before anyone reads it. Signed 9/28/2012 Page 1 of 12
    • as the “EB-5 Regional Center Program 2” as implied by the title of the sectionreauthorizing it. This Program still is not part of the INA but rather is codifiedalongside it as 8 USC § 1153 Note which had been entitled “Pilot ImmigrationProgram” but now may need to be relabeled something like “EB-5 Regional CenterProgram”, or “EB-5 Regional Center Immigration Program”. This point is not100% clear as of this writing.Whatever the name turns out to be is beside the point and nothing more thansemantics. The basics of this Program were originally extremely vague in thestatute. The Program was to be largely constructed via regulations. Originally, theAttorney General through the now defunct Immigration and NaturalizationService, herein Legacy INS, was instructed to, along with the Secretary of State,set aside visas for a Program to implement the provisions of INA § 203(b)(5). Thatsection (INA § 203) is entitled “Allocation of Immigrant Visas”, paragraph (b) isentitled “Preference Allocation for Employment-Based Immigrants” and sub-paragraph (5) is entitled “Employment Creation”. This means we are dealing withthe Employment-Based (EB), fifth preference immigrant visa category for thosewho pledge to create employment. The favored short hand is simply EB-5.The statutory instruction to “implement” that “Program” was a command to createthe Program via regulations. The required regulations were promulgatedprincipally and primarily within 8 CFR § 204.6(m) in 1994, with additional cross-references within § 204.6 and the associated 8 CFR § 216.6 which governs theprocess for the lifting of conditions. Lastly, there are some generally applicableregulations in 8 CFR Part 103, that are applicable across most application andpetition adjudications, including: general filing requirements, filing fees, requestsfor evidence, notices of intent to deny or revoke, issuance of final decisions,withdrawals, motions, and appeals. Very little has changed about any of thoseregulations, especially the ones specifically addressing EB-5, as of this writing, butchanges are sorely needed for this Program’s regulations as well as the generalregulations.The Secretary of Homeland Security and U.S. Citizenship and ImmigrationServices (USCIS) inherited and assumed the responsibility for the Program whenthe Homeland Security Act (HSA 2002) made sweeping structural changes to the2 Please see essay posted at: http://www.slideshare.net/BigJoe5/regional-center-as-a-lasting-addition-to-the-regional-economic-infrastructure on the Congressional Intent of the “Program”beyond RCs as EB-5 Visa facilitators and Service Providers to the Immigrant Investors. Page 2 of 12
    • organization of the Executive Branch relating to Immigration, Naturalization,Nationality/Citizenship, and related laws; their administration and enforcement.USCIS is one of the successors to Legacy INS as the DHS component thatinherited INS’ Benefits Adjudication functions. That true separation of BenefitsDeterminations from Law Enforcement Function means that the “EB-5 RegionalCenter Program” is now administered by a Benefits Granting 3 Agency. ThatAgency (USCIS) has, as one of its core missions, the improvement of CustomerService in the delivery of unbiased, fair, and impartial benefits determinations viaproperly conducted administrative adjudication processes and procedures.Basic Practical ConsiderationsAs indicated previously, and now stated bluntly: we are talking about an“Administrative Adjudication” when we are talking about requesting anythingunder the law that is overseen by any Executive Branch Agency. In specificreference to EB-5, anyone involved in or wishing to become involved with it needsto know that there are multiple steps and facets with nuanced contexts involved.Some of those multiple step processes and considerations are universallyapplicable across-the-board. However, many are not equally applicable and thisleads to much confusion among EB-5 applicants and petitioners as well as USCISadjudicators. In short, it’s just not that simple! In fact, it’s exceedingly complex!As the component entrusted to affect the Intent as well as the actual statutes passedby Congress, and as those statutes and their associated implementing regulationshave been interpreted by the Federal Courts, USCIS must do so while contendingwith the fact that it is an almost completely fee-funded agency. USCIS mustpractically consider budgetary line items not demanded of many other governmentagencies. With all that in mind, USCIS generally seeks practical solutions whendeveloping regulations, policies, processes, and procedures in order to implementits mandates. USCIS must, out of necessity, reform itself in a workable manner orface the unpleasant prospect of having impractical solutions in the guise of judicialinterpretations and cumbersome legislation foisted upon it in the name of solvingperceived problems that the agency has not addressed and/or tackled on its own.One example of this is AAO Reform in general and as specifically related to thesubject matter of this essay, namely all aspects of EB-5. AAO has compared itself3 USCIS also denies benefits and houses the principal Immigration–Related AdministrativeAppellate Body (the Administrative Appeals Office (AAO)) within the Department of HomelandSecurity (DHS). Page 3 of 12
    • and its appellate role concerning the decisions of the various Directors, which itreviews, as similar to the relationship between the Circuit Courts of Appeals andU.S. District Courts. I partially agree except that, AAO has almost unfetteredplenary power and may review just about anything de novo. I am not the first tofind an inherent danger in that situation. AAO would be doing itself a favor if it setsome limits voluntarily rather than have impractical and unworkable “solutions”imposed upon it from the Courts and/or Congress. I think that that is enough saidon that subject and so I will let it go, for now. Hopefully AAO’s overdue NPRMwill come along sooner rather than later. However, if it doesn’t and the agency isbombarded with cumbersome and totally impractical unfunded mandates, fees willlikely spike, you heard it here, first!Broad Legal Considerations for EB-5 Regional Center Program ImplementationI urge everyone to review (or become aware of) certain broad underlying concepts.I will address the high points but do not be fooled into thinking that this simpleessay is in anyway intended to be 100% comprehensive, it is not. It is merelyillustrative of some of the major themes that are most likely to be encountered. Asindicated, there are multiple steps, multiple considerations, multiple contexts 4, andmore issues than anyone can track with much success. I will cite several cases thatyou may or may not be familiar with and say why I think they are worthy of study.Matter of Polidoro, 12 I&N Dec. 353 (BIA 1967), concluded thus and is oftencited for this quote: “The argument of counsel has been noted. The issue in visa petition proceedings is not one of discretion but of eligibility. The appeal will be dismissed.” At 354. [Emphasis added.]That simple and eloquent single sentence, which is emphasized above, cuts straightto the point. You must figure out certain simple truths and approach matters on thecorrect trajectory or you will miss the target completely as did petitioner’s“counsel” in Polidoro. A visa petition is a request to get an official but often quitesimple acknowledgement of and declaration as to a fact, or facts. Any type of visaclassification is a label, nothing more. Most visa classifications are defined in thestatute in a straight-forward, matter-of-fact manner. There are simple family-basedcategories: spousal, parent-child, sibling; and the more complex such as fiancé,widow, adopted child, adoptive parent, or adoptive sibling. Some are much morecomplicated than others such as a “legitimated” child, or the illegitimate child in a4 See essay posted at: http://www.slideshare.net/BigJoe5/multiple-prongs-and-multiple-steps-have-similarities-and-differences Page 4 of 12
    • “bona fide” parent-child relationship, and the list goes on. In the family categories,we are concerned with establishing a “relationship” as defined in the statute.Next, we have the employment-based categories. A few are at least partiallyconcerned with the employer-employee or parent company-affiliate-subsidiary –satellite or branch office, etc... “relationship” but the vast majority of thesecategories rely on “qualifications” of the beneficiary rather than any particular“relationship”. The point of most employment-based petitions, for either immigrantor non-immigrant workers, is getting permission to start a working relationship.The hopeful prospective employer files a petition on behalf of an alien beneficiarywhom that employer seeks to import to become an employee. In order to file anypetition, the petitioner must also be “qualified” to file one. The vast majority of“petitions” are filed by someone on behalf of someone else. There are a fewsituations in both the family-based and employment-based visa categories whereone might be eligible to file a “self-petition”.The USCIS Form I-526, Immigrant Petition by Alien Entrepreneur is a “self-petition” that may not be filed by anyone on behalf of the alien entrepreneur(usually they are really just an investor) but even that is not 100% correct. This isbecause the entrepreneur/investor who files is the “principal” and is allowed toinclude “dependants” consisting of his or her own immediate family members, inthis case meaning only their spouse and unmarried minor (under 21 year old 5)children as per INA § 203(d). (d) Treatment of Family Members. - A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent. [Emphasis added.]Matter of Katigbak, 14 I&N Dec. 45 (R.C. 1972), held (excerpt below) and is oftencited for the concept of having to be “eligible at time of filing” and, in part, for theprohibition of favorably considering any post-filing material changes regardingeligibility when finally making an adjudication decision, even if long delayed: To be eligible for preference classification under section 203(a)(3) of the Immigration and Nationality Act, as amended, the beneficiary must be a qualified member of the professions at the time of the filing of the visa petition. Education or experience5 The Child Status Protection Act (CSPA) applies to this category but is just as complicated ifnot more so for these dependants as any other category. Page 5 of 12
    • acquired subsequent to the filing date of such visa petition may not be considered in support thereof since to do so would result in according the beneficiary a priority date for visa issuance at a time when not qualified for the preference status sought.The “material change prohibition” was affirmatively adopted in EB-5 in the nextPrecedent Decision listed below.It should be kept in mind that much has happened since 1972, and 1998,respectively. Congress has amended the INA numerous times, the Courts haveweighed in on a wide variety of issues as have the administrative appellate bodies(AAO and BIA 6), and regulations have come and gone or been altered. We nowhave substitute sponsors, survivor benefits, and portability for “same of similar”positions. Remember that the EB-5 Visa as a statutory Visa Classification and theRegional Center concept had not yet been created when Katigbak was decided.We Live, We Learn, We Evolve, We Grow. Time Marches On As The Saying Goes!Matter of Izummi, 22 I&N Dec. 169 (AAO 7 1998), specifically relates to EB-5. Itinvolved the I-526, filed by an alien entrepreneur (investor) in one of the fledglingRegional Centers formed and approved when the Pilot Program was very new,poorly understood, and even more poorly administered.It had a thirteen (13) prong holding when issued. Only the final prong has beenaffirmatively quashed by subsequent legislative amendment. An EB-5 alien nolonger has to “establish” the new commercial enterprise and may simply “invest”in one. (13) In order for a petitioner to be considered to have established an original business, he must have had a hand in its actual creation.Additionally, Congress also reduced the importance of the export component byshifting it from mandatory to optional so in retrospect much of the discussion isirrelevant or moot and should be re-examined or studied with that in mind.6 The Board of Immigration Appeals (BIA or Board) is within the Department of Justice’s (DOJ)Executive Office of Immigration Review (EOIR) but was once a part of INS. The BIA spun offinto EOIR at the same time that AAO’s predecessor “AAU” was created in 1983. The AAO hasgrown incrementally since inception, it has been suffering severe growing pains since DHS wascreated and through the date of this writing. See next footnote.7 I admit to blatant revisionist history in regard to the deciding party in this citation. The actualbound decision says it was decided by the Associate Commissioner, Examinations. However, itvery often gets attributed to the BIA or AAU (former name of AAO was Administrative AppealsUnit (AAU)). AAU was wielding the authority of the Assoc Comm’r, Exams. AAU wasrenamed AAO in January 1994, and the regulations still refer to AAU in 2012! 18 years later! Page 6 of 12
    • The third prong, in my opinion was an overstatement and needs to be affirmativelyoverruled or significantly modified with “qualifiers”. It states: (3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements.That third prong which builds upon the concept extracted from Katigbak isexplained in the following often-quoted blurb from page 175 of the decision. “A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971), Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements.”Everyone needs to remember that the I-526 is a Visa Petition and as such, it ispotentially subject to becoming backlogged to the point where it is oversubscribedand the “priority date” will have a real meaning. While the I-526 has always beensusceptible to the vagaries of statutory limits placed on Preference Category VisaAvailability according to the “Priority Date” as listed on the monthly Visa Bulletin,it has never been oversubscribed since day-one. That situation is seeing a truepotential for change for the first time since the visa was created.The I-924, Application For Regional Center Under the Immigrant Investor PilotProgram is not a Visa Petition and has different considerations involved. The“material change prohibition” only comes into play much later in the RegionalCenter Process. In the early stages of the application for what I see as “Licensure”by USCIS for an entity to be designated as authorized EB-5 Service Provider, it isimportant to settle many hypertechnical matters. In the course of thoseproceedings, material change is not prohibited. Instead, material changes are morethan welcome, often invited or suggested, and sometimes demanded in order toattain the desired Designation (License) from USCIS.The “prohibition” has to do with a subsequent material change that causes one tolose eligibility outright through plain old business failure; or material changesmight demand a hindsight report and analysis covering the reality of whattranspired. USCIS can compare this against what was intended and/or predictedup-front. In essence, this entails preparation of a substitute report that replaces ormodifies the previously submitted Business Plan. Such substitute BP would mostlikely be accompanied by an updated Economic Analysis which will be much moreaccurate than a mere prediction because it will be reporting the reality of whatactually happened based on real-world events and verifiable facts instead of Page 7 of 12
    • estimates and predictions alone; no matter how superb they were at the time. Theforgoing is what I have described as a “Within The Scope” Analysis.I have written about these issues profusely and will not go into too much depth inthis essay. Instead, I will provide some references and links to published articles: "Within the Scope" Analysis Of the EB-5 Regional Center Is Analogous To AC21s "Same Or Similar Occupation Classification" Determination “Eligibility at the time of filing” Misapplication of Very Specific I&N Decision Holdings and Principles to Too Many Circumstance Revisiting Katigbak and Izummi Again The Application For A Regional Center Invites Material Change To Perfect That I-924: The Role Of Transparent Complexity In Preserving Investment Flexibility Material Change vs. Authorized Modification-When Is Something Administratively Final? Is Time of Filing or Time of Adjudication More Crucial?Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), (later overruled) held: Immigration Judges have no authority to determine whether the validity of an alien’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2000), after the alien’s change in jobs or employers.INA § 204(j) embodies the portability provision of AC21 8. AC21 portability isvastly different from the EB-5 Regional Center Program but some of theunderlying fundamental concepts embodied in this excerpt from the discussionportion in Perez Vargas, remains, in my opinion, and specifically as it relates toany “within the scope” analysis as to whether an altered EB-5project remainswithin the operational parameters of a previously approved Regional Center or anExemplar (Dummy or Mock-Up) I-526 filed as an I-924 amendment is this: “Moreover, we agree with the DHS that a determination under section 204(j) of the Act whether a change in employment affects the viability of an employment-based visa petition is one which requires some expertise in assessing the similarity in certain types of employment. The respondent argues that the employment description on which his visa petition was approved, i.e., inspecting wood cabinets under the occupational title of carpentry, is substantially similar to the new employment that he obtained in 2002, i.e., installing marble counters. As is clear from the transcript of proceedings, however, the Immigration Judge was not confident that these jobs, which involve two different8 Section 204(j) was created by section 106(c)(1) of the American Competitiveness in theTwenty-First Century Act of 2000 , Pub. L. No. 106-313, 114 Stat. 1251, 1254 (“AC21”). Page 8 of 12
    • materials, were the same or similar. Furthermore, even assuming the techniques used in the different jobs involved similar principles and methods, it would be difficult for the Immigration Judge to assess whether the new job description included the same level of responsibility and skill, and whether the job would have an adverse impact on the United States labor market. Original jurisdiction over employment-based visa petitions lies with the DHS following issuance of a labor certification by the Department of Labor (“DOL”). See 8 C.F.R. §§ 204.5(b), (d). It therefore follows that any redetermination of the visa petition’s validity would also lie with these government entities, and not with the Immigration Judge. See Matter of Arthur, 20 I&N Dec. 475, 479 (BIA 1992) (noting that an inquiry into the merits of a visa petition would “constitute a substantial and unwarranted intrusion into the district director’s authority over the adjudication of visa petitions”); see also Matter of H-A-, 22 I&N Dec. 728, 736 (BIA 1999); Matter of Aurelio, supra, at 460-61; Memorandum from James A. Puleo, Acting Executive Associate Commissioner, Office of Operations, to INS officials (Dec. 10, 1993), reprinted in 70 Interpreter Releases, No. 48, Dec. 20, 1993, at 1676 & app. III at 1692-93 (discussing the agreement between the INS and the DOL regarding guidelines for handling changes to labor certifications and employment-based visa petitions where there is a successor in interest to the original employer).” Perez-Vargas at pp. 831-832 (overruled) [Bold emphasis added.]Even-though Perez-Vargas is no longer valid precedent as to the “same or similaroccupation” redetermination allowed under AC21, it does have some usefuldiscussion, which can serve as guidance when applied to the EB-5 context. Eventhe concurring separate opinion to Neto which overruled it recognizes that the re-determination would be better handled by USCIS than an IJ or the BIA. Anyaltered or replacement EB-5 business plan and economic analysis re-evaluationwill be exponentially more complicated and complex than re-evaluating a singlejob description which an IJ or BIA Board Member already feels uncomfortableperforming.Additionally, because the overarching EB-5 statute vests sole authority in theSecretary of Homeland Security and thus USCIS, no IJ or BIA Board Membershould ever have to try to tackle such a complex and convoluted adjudication or itsre-adjudication, not that they’d ever want to try. The EB-5 context is clearly andeasily distinguishable from the AC21 governing statutory authority and anyassociated redetermination implications. Furthermore, the AC21 redeterminationcomes at the commencement of LPR’s status but the EB-5 redetermination wouldcome on the back end of the process, which, if successful will validate any timethat has been spent in the U.S. during the redetermination process. Page 9 of 12
    • Matter of Neto, 25 I&N Dec. 169 (BIA 2010), overruled Perez-Vargas but as wasstated above, the BIA acknowledged its discomfort with that result and that IJswould be faced with many issues “in the first instance” concerning matters welloutside their areas of expertise and even further outside their comfort zones.USCIS is devoting vast resources to EB-5 with significantly increased numbers ofadjudicators plus newly hired economists and attorneys with transactionalexperience (familiar with SEC, OFAC, Banking and various other regulations pluscontract law). IJs would be toast if ever called upon to render substantivedecisions in this arena. Their calendars are already bursting at the seams!Matter of Church Scientology International, 19 I&N Dec. 593 (Comm’r 1988), ishighly useful at the present time as it acknowledges that the agency sometimesmakes mistakes as it learns to administer a new law or amendment. It furtherdeclares that it is not bound by past mistakes. These concepts have been challengedbut the courts have repeatedly sided with the government that it it is not bound bypast mistakes. I find the following excerpt to be most helpful in understanding this. “The Service, in the absence of any legislative history, regulations, or precedent decisions on the applicability to religious personnel of the "L-1" and Schedule A, Group IV, provisions, has been attempting to set standards and may have inadvertently rendered some inconsistent decisions. In spite of this, this Service is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals which may have been erroneous. Matter of Khan, 14 I&N Dec. 397 (BIA 1973), by extension; Matter of M-, 4 I&N Dec. 532 (BIA 1951; BIA, A.G. 1952); see also Pearson v. Williams, 202 U.S. 281(1906); Lazarescu v. United States, 199 F.2d 898 (4th Cir. 1952); United States ex rel. Vajta v. Watkins, 179 F.2d 137 (2d Cir. 1950); Mannerfrid v. Brownell, 145 F. Supp. 55 (D.D.C.), affd, 288 F.2d 32 (D.C. Cir. 1956). At 597.Matter of Caron International, Inc.,19 I&N Dec. 791 (Comm’r 1988), is widelycited for the final prong of its six (6) prong holding as follows: (6) The Immigration and Naturalization Service may, in its discretion, use as advisory opinions statements from universities, professional organizations, or other sources submitted in evidence as expert testimony. However, where an opinion is not in accord with other information or is in any way questionable, the Service is not required to accept or may give less weight to that evidence.Matter of Ho, 22 I&N Dec. 206 (AAO 1998), is another EB-5 specific case whichI include at this juncture because of the interconnection to the concept expressedimmediately above from Caron Int’l. (5) In order to demonstrate that the new commercial enterprise will create not fewer than 10 full-time positions, the petitioner must either provide evidence that the new Page 10 of 12
    • commercial enterprise has created such positions or furnish a comprehensive, detailed, and credible business plan demonstrating the need for the positions and the schedule for hiring the employees.Expert testimony is utilized within the various EB-5 processes. The mostprominent examples of expert testimony are the Business Plan and the EconomicAnalysis based upon it. If these cannot make the grade with the USCISAdjudicator or AAO, it is highly unlikely that an IJ, the BIA or any Federal Judgewill reverse such a finding of fact. It is noted that if an EB-5 investor’s conditionalstatus is Terminated and (s)he has been served with an NTA (Notice To Appear),the request to remove conditions may be “renewed” before an IJ. A negativeoutcome is then subject to appeal to the BIA and finally challenged in a Petitionfor Review of an Order of Removal if such review is sought in the Circuit Court ofAppeals, of jurisdiction.I have written previously on this subject matter relating to expert testimony in theEB-5 context. Please see: “From Theory to Practical Application in EB-5” byJoseph Whalen, in Immigration Daily, (August 7, 2012), article posted at:http://www.ilw.com/articles/2012,0807-whalen.shtm or http://www.ilw.com/eb5/.Matter of Ho, 19 I&N Dec. 582 (BIA 1988), dealt with several key concepts whichhas resulted in this particular Precedent Decision being widely cited and quotedacross multiple contexts. EB-5 is definitely no exception to that trend; in fact, Ifind it eminently suitable for application to all of the EB-5-related applications andpetitions. I will offer this caveat to USCIS: It will be much harder to assert an error in theagency’s judgment if revisiting “provisionally approved” business plans andaffirmatively acknowledged projections based on the submitted economic analysiswhich was itself based on accepted “reasonable methodologies”; if such claims toadjudicative error are made in an I-829 denial as opposed to an I-526 denial orrevocation. I say this because at that point, USCIS will have crossed the line intoaffording a stronger sense of reasonable reliance as to the suitability of thatspecific project. That late in the process, millions of dollars will likely have beenexpended based on that reasonable reliance such that collateral estoppel becomesoperative against denial based on asserted agency error in judgment alone. In the I-829 context, if the alien challenges the termination of status, the burden of proof ison the agency to establish by a preponderance of the evidence that the alien failedto do what they pledged to do. In the Regional Center investment with its relaxedapproach to the manner of meeting the statutory requirements and the affirmativeacceptance by USCIS that the approach put forth and accepted was not carried out Page 11 of 12
    • is a different matter than simply saying “Oops” we shouldn’t have accepted thatapproach. USCIS must catch an error as early as humanly possible if it OK’danything and money is spent because of the agency’s tacit assurance in the viabilityof that specific project for EB-5 purposes. INA § 205 revocation authority issimpler and based on much more solid legal ground than allowing a mistake on theagency’s part to continue to cause huge amounts of money to be expended and tryto beat the odds as to collateral estoppel.USCIS has consolidated everything EB-5-related at CSC which is in the NinthCircuit and the Precedential immigration cases that support the ideas of: (1) reasonable reliance applying specifically to alien investors in the EB-5 Regional Center Program 9, and (2) collateral estoppel 10 applying in the immigration context; both come from the Ninth Circuit.USCIS should expect (and accept) that EB-5 court challenges are most likely to befiled in the Ninth Circuit, and plan accordingly. Such is the case now with at leasttwo cases currently in process in U.S. District Courts in California11 and thuswithin the Ninth Circuit. I have already written separate commentary (Op-Edarticles) on the currently pending cases as have others so there is no need to go intodetail here.That’s my two-cents, for now.9 Chang v. United States of America, 327 F. 3d 911 (9th Cir. 2003).10 Oyeniran v. Holder, 672 F.3d 800 (9th Cir 2012), [No. 09-73683, (9th Cir. March 6, 2012)].11 Carlsson et al. v. USCIS et al., PACER Docket# 2:12-cv-07893-CAS-AGR, filed 9-13-2012. Chung et al. v. USCIS et al., PACER Docket# 8:12-cv-01351-AG-MLG, filed 8-21-2012. Page 12 of 12