Lets play twister or maybe that should be twisted?
 

Lets play twister or maybe that should be twisted?

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The I-924 is a "continuing application" which can be perfected after filing, unlike an I-526 employment-based fifth preference visa petition.

The I-924 is a "continuing application" which can be perfected after filing, unlike an I-526 employment-based fifth preference visa petition.

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Lets play twister or maybe that should be twisted? Lets play twister or maybe that should be twisted? Document Transcript

  • Contact: joseph.whalen774@gmail.com or (716) 604-4233 or (716) 768-6506 Page 1 Let’s Play “Twister” or Maybe, That Should be “Twisted”? By Joseph P. Whalen (June 24, 2014) INTRODUCTION I have played the game of “Immigration Law Twister” previously. It involves the lifting of an underlying concept and repurposing it in another context. The following case discussed an “application for admission” which can be a request to physically cross the U.S. border into the interior, or it may also consist of an artificial construct that we call “adjustment of status” (AOS) to that of immigrant. Such application, in one form or another, may be brought before DHS (CBP or USCIS) and either made fresh or “renewed” in Immigration Court before an IJ. I will try to illustrate how I play the Twister game by example. I will attempt to quickly introduce the concept of the “continuing application” for admission and then apply it to other applications in very different contexts. THE “CONTINUING APPLICATION” While glancing through a case that showed up in my e-mail on June 19th, I read something that caught my attention and got me thinking. If you’ve ever read my writings before, maybe you know what that can lead to. If not, just come along for the ride. The Fifth Circuit Court of Appeals published Maria Munoz v. Eric Holder, Jr., ____ F.3d ____ (5th Cir. 2014) [No. 13-60037, June 19, 2014], which contained the following: “……………………………………………………………… As the BIA explained in Matter of Valenzuela-Felix, “[s]ubsequent Board decisions have cited Matter of K- 1 for the proposition that an application for admission is a continuing one and that admissibility is determined on the basis of the law and facts existing at the time the application is finally considered.” 26 I. & N. Dec. at 59–60 (citing Matter of Kazemi, 19 I. & N. Dec. 49, 51 (BIA 1984)). As the Valenzuela majority explained, the Attorney General and [the] Board have consistently treated an application for admission as a continuing one and have held that, ultimately, admissibility is authoritatively determined on the basis of the law and facts existing, not at the time the alien first presents himself at the port of entry, but at the time the application for admission is finally considered during the proceedings before the Immigration Judge. Id. at 56.” At pp. 9-10 [Highlighing Added for Emphasis] 1 Matter of K-, 9 I&N Dec. 143 [(Special Inquiry Officer 1959; BIA1959)] (A.G. 1961).
  • Contact: joseph.whalen774@gmail.com or (716) 604-4233 or (716) 768-6506 Page 2 Whenever I find an intriguing statement or point of interest containing references, I like to trace the concept by looking at those cited cases. Since there is already a quote from Valenzuela-Felix, I’ll have a look at Matters of K- and Kazemi. Matter of Kazemi held: (1) An application for admission to the United States is a continuing application and an alien's admissibility is determined on the basis of the law and facts existing at the time the application is finally considered; therefore, the instant applicant is now inadmissible as a nonimmigrant student because he lacks a passport valid for at least the next 6 months, as required by 8 C.F.R. Sec. 214.2 (f)(5)(i)(1984). (2) The Board and immigration judges have jurisdiction to entertain an application for waiver of inadmissibility under section 212(d)(4) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(d)(4)(1982), where an alien renews such application before an immigration judge in exclusion proceedings following its initial denial by the district director. Matter of Ketema, 18 I&N Dec. 266 (BIA 1982), overruled. Matter of Le Floch, 13 I&N Dec. 251 (BIA 1969), reaffirmed. Matter of K- held: Excludability—Determination based on conviction during parole. Conviction occurring subsequent to arrival in United States while alien was in parole status and application for admission was pending will support exclusion order notwithstanding that ground of inadmissibility may not have been in existence at the time of alien's arrival. EXCLUDABLE: Act of 1952—Section 212(a) (9) [8 U.S.C. 1182(a) (9)]— Convicted of crime involving moral turpitude prior to entry— Procured smuggling of diamonds. TWISTER ROUND 1: GENERALIZING FROM THE SPECIFIC If I find a well reasoned concept buried in a very specific holding or even if within the dicta in a precedent, I like to try to steal as much of it as possible by swapping “specifics” for “generalities” and see how that looks. In the first set of excerpts, what you have read was in connection with various applications for admission and sometimes a concurrent waiver application. This particular scenario was traced backward from 2014, through the 1980s skipping the 1970s, and finally to 1961, a span of roughly 53 years. There seems to be enough raw materials to work with in order to derive a broad, general, “generic” statement of the underlying concept that jumped out at me last week. Perhaps I can even get two related workable statements, we’ll see. I will start with the oldest case holding presented above and work my way forward to the present. So, if I at first just keep the highlighted words from the holding in Matter if K- and leave the gaps as blank spaces to be filled in later, I get the following.
  • Contact: joseph.whalen774@gmail.com or (716) 604-4233 or (716) 768-6506 Page 3 […..….] occurring subsequent to [.……..] while […...…] and [an] application for […………..] was pending will support […………] notwithstanding that [………….] may not have been in existence at the time of ……………]. Now, if I fill in those blanks with broad generalities I get the following resulting “generic” statement of the underlying concept. I just hope it is clear enough to get the point across. [A particular end-result or condition subsequent] occurring subsequent to [a triggering event or condition precedent] while [the applicant was in the starting condition or position] and [an] application for [some sort of benefit or relief] was pending will support [a particular outcome] notwithstanding that [the particular condition precedent] may not have been in existence at the time of [the triggering event]. TWISTER ROUND 2: REPURPOSING I want to take it a step further and customize that “generic or general statement” and squeeze it comfortably into a new context. I will use the EB-5 Regional Center Designation Request [USCIS Form I-924] as my vehicle to repurpose this underlying theme of a “continuing application”. Corrections, including material changes, to an EB-5 business plan and an accompanying economic impact analysis occurring subsequent to the filing of an I-924 for Initial USCIS Regional Center Designation or as an I-526 Exemplar visa petition while the investors’ money was in escrow and/or bridge financing had started the project and [an] application for Regional Center Designation or Provisional Project Approval was pending will support Designation and/or Project Provisional Approval notwithstanding that the final business plan and/or economic impact analysis may not have been in existence at the time of filing the I-924 for Initial Regional Center Designation or Amendment Application. TWISTER ROUND 3: VALIDATION THROUGH REPLICATION For those readers who are familiar with the scientific method, this next part may seem to be a “given fact” but some folks may not remember what they learned in high school so I will include it. Now that I have laid out a method, and broken it down to its basic components, I will check it by testing it on another holding. I will also lay it out as a series of simple steps for ease of use in future application of this process. The other related verbiage I want to bring to your attention which I will use as an example is the first clause of the first prong from the holding in Kazemi, as follows. Step I— Isolate the concept and specific language: “An application for admission to the United States is a continuing application and an alien's admissibility is determined on the basis of the law and facts existing at the time the application is finally considered;…”
  • Contact: joseph.whalen774@gmail.com or (716) 604-4233 or (716) 768-6506 Page 4 Step II— Remove overly specific language: “An application for [………………………………………] is a continuing application and [………………………………………] is determined on the basis of the law and facts existing at the time the application is finally considered;…” Step III— Fill in the “blanks” with generic “place-holder” language: “An application for [a particular, suitable type of benefit or form of relief] is a continuing application and [the result] is determined on the basis of the law and facts existing at the time the application is finally considered;…” Step IV— Replace the generic “place-holder” language with new “specific” language appropriate to the alternate context and we get: “An application for Designation as a Regional Center or an I-924 submitted as an I-526 Exemplar is a continuing application and the decision to grant or deny the Initial Regional Center Designation or Expansion Amendment or Provisional Approval for a Specific Project is determined on the basis of the law and facts existing at the time the application is finally considered.” SUMMARY & CONCLUSION The point I am ultimately trying to make in this article is that various determinations are best made at the end of the decisional process. This is true for certain benefits or relief available under the Immigration, Nationality, and related laws of the United States. Admission, certain waivers, N-400s, N-600s and I-924s, as examples, are all continuing applications. These decisions are better when well considered on a fully developed record. The record can and usually does develop during the course of the adjudication. Eligibility may be solidified or destroyed based upon the consequences or beneficial effects of events occurring after filing a particular application or petition. For example, an N-400 may not be approved and the applicant may not be administered the oath of renunciation and allegiance while still on probation or parole. That same person, based on the same N-400, Application for Naturalization, may be sworn in as a citizen if the probation or parole ends successfully during the pendency of the application. Certain applications or petitions may not be “improved” after filing. The prime example of something that cannot be fixed after filing is the preference visa petition which must ultimately demonstrate eligibility at time of filing. In other words, a particular prerequisite, usually in the form of a statutorily defined relationship or qualifications, must actually exist at time of filing the visa petition. Please remember that the filing date of an approved preference visa petition will be transformed into a “priority date” for visa issuance (or allocation) or adjustment of status filing purposes.
  • Contact: joseph.whalen774@gmail.com or (716) 604-4233 or (716) 768-6506 Page 5 In addition to the blurbs used as illustrations above which were drawn from precedent decisions, I have another source that I want to discuss. The written law itself, whether within a statute or regulation, may have a key phrase or clause that speaks volumes. However, sometimes it may be buried in clutter. I will use the concept of the “burden of proof” as stated in the certain sections of the Immigration and Nationality Act [INA] to draw out additional contextual clues that have helped me internalize important concepts necessary to producing a high quality adjudication decision. Are you ready? Let me apologize in advance for the headache that this may cause. The burden of proof is discussed in various sections of the statute. Most well known is probably INA § 291 [8 U.S.C. § 1361] which states: Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this Act, and, if an alien, that he is entitled to the nonimmigrant; immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General [Secretary of Homeland Security] that he is not inadmissible under any provision of this Act. In any removal proceeding under chapter 4 against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, but in presenting such proof he shall be entitled to the production of his visa or other entry document, if any, and of any other documents and records, not considered by the Attorney General [Secretary of Homeland Security] to be confidential, pertaining to such entry in the custody of the Service. If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law. For naturalization purposes we look to INA § 318 [8 U.S.C. § 1429] which states: Except as otherwise provided in this title, no person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this Act. The burden of proof shall be upon such person to show that he entered the United States lawfully, and the time, place, and manner of such entry into the United States, but in presenting such proof he shall be entitled to the production of his immigrant visa, if any, or of other entry document, if any, and of any other documents and records, not considered by the Attorney General [or the Secretary of Homeland Security] to be confidential, pertaining to such entry, in the custody of the Service [DHS]. Notwithstanding the provisions of section 405(b) , and except as provided in sections 328 and 329 no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of
  • Contact: joseph.whalen774@gmail.com or (716) 604-4233 or (716) 768-6506 Page 6 arrest issued under the provisions of this or any other Act; and no application for naturalization shall be considered by the Attorney General [Secretary of Homeland Security] if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this or any other Act: Provided, That the findings of the Attorney General in terminating removal proceedings or in canceling the removal of an alien pursuant to the provisions of this Act, shall not be deemed binding in any way upon the Attorney General [Secretary of Homeland Security] with respect to the question of whether such person has established his eligibility for naturalization as required by this title. For citizenship claims we look to INA § 341 [8 U.S.C. § 1452] which states: (a) A person who claims to have derived United States citizenship through the naturalization of a parent or through the naturalization or citizenship of a husband, or who is a citizen of the United States by virtue of the provisions of section 1993 of the United States Revised Statutes, or of section 1993 of the United States Revised Statutes, as amended by section 1 of the Act of May 24, 1934 (48 Stat. 797), or who is a citizen of the United States by virtue of the provisions of subsection (c), (d), (e), (g), or (i) of section 201 of the Nationality Act of 1940, as amended (54 Stat. 1138; 8 U.S.C. 601), or of the Act of May 7, 1934 (48 Stat. 667), or of paragraph (c), (d), (e), or (g) of section 301 of this title, or under the provisions of the Act of August 4, 1937 (50 Stat. 558), or under the provisions of section 203 or 205 of the Nationality Act of 1940 (54 Stat. 1139; 8 U.S.C. 603, 605), or under the provisions of section 303 of this title, may apply to the Attorney General [Secretary of Homeland Security] for a certificate of citizenship. Upon proof to the satisfaction of the Attorney General [Secretary of Homeland Security] that the applicant is a citizen, and that the applicant's alleged citizenship was derived as claimed, or acquired, as the case may be, and upon taking and subscribing before a member of the Service within the United States to the oath of allegiance required by this Act of an applicant for naturalization, such individual shall be furnished by the Attorney General [Secretary of Homeland Security] with a certificate of citizenship, but only if such individual is at the time within the United States. The key phrases “establishes to the satisfaction of”… and “[u]pon proof to the satisfaction of …” are subjective in nature and in my mind easily justify a decision being made “at time of final adjudication” rather than proving “full eligibility upon the filing of the application”; or for naturalization, until time of oath administration. These burdens of proof support a conclusion that an I-924, Application For Regional Center Under the Immigrant Investor Pilot Program, is a continuing application best decided upon a complete development of the administrative record subject to supplementation and even material change after filing. Pub. L. 102–395, title VI, §610, Oct. 6, 1992, 106 Stat. 1874, as amended, [8 U.S.C. § 1153 Note: Immigration Program (2012)] vests the authority to designate the status of “Regional Center” upon an applicant, with the Secretary of Homeland Security. There is no specific mention of any “burden of proof” nor is
  • Contact: joseph.whalen774@gmail.com or (716) 604-4233 or (716) 768-6506 Page 7 there any specific mention of any filing prerequisites. The only solid filing prerequisite that I can discern is the actual and legal existence of the entity that applies for Regional Center Designation which is indicated in the form instructions can be traced to the first AAO Regional Center Appeal Dismissal, a non-precedent dated November 18, 2008. Looking to the implementing regulations at 8 CFR § 204.6(m)(3)(i-v), we again find no specific language to guide us as to the burden of proof. We then must turn to Administrative Precedent Decisions. When it is not otherwise stated, the burden of proof is upon the applicant for the benefit (or relief). Also, when that burden is not specified otherwise, it shall be measured by the “preponderance of the evidence” standard. See Matter of Chawathe, 25 I&N Dec.369 (AAO 2010), which provides: (3) In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought. * * * * * The standard of proof should not be confused with the burden of proof. The burden of proving eligibility for the benefit sought remains entirely with the applicant. Section 316(b)(2) of the Act; see also section 291 of the Act, 8 U.S.C. § 1361 (2006). Additionally, the “preponderance of the evidence” standard does not relieve the petitioner or applicant from satisfying the basic evidentiary requirements set by regulation. There are no regulations relating to a corporation’s eligibility as an “American firm or corporation” under section 316(b) of the Act. Had the regulations required specific evidence, the applicant would have been required to submit that evidence. Cf. 8 C.F.R. § 204.5(h)(3) (2006) (requiring that specific objective evidence be submitted to demonstrate eligibility as analien of extraordinary ability). Id. Dec. at 375, n.7 Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor 1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218 Phone: (716) 604-4233 or (716) 768-6506 E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: Work is performed by a non-attorney independent business consultant. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly- individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do reviewthem for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NAICS Code: 611430 Professional and Management Development Training That’s my two-cents, for now.