Reliance vs deference in eb 5 03-17-2011
 

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What should a Regiona Center expect from its designation by USCIS?

What should a Regiona Center expect from its designation by USCIS?

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Reliance vs deference in eb 5 03-17-2011 Document Transcript

  • 1. The Concepts of “Reasonable Reliance” vs. “Deference to Prior Decisions1” in EB-5 (03/17/2011)Reasonable RelianceWords of wisdom from the Chang2 case strongly support the USCIS position that thecomprehensive business plan and the economic benefits model, especially the job creationpredictions, which are based on that comprehensive plan and underlie the I-526, ImmigrantPetition by Alien Entrepreneur approval are the foundation for the later I-829, Petition byEntrepreneur to Remove Conditions adjudication. The 9th Circuit Court opined that “.…if I-526approval is decoupled from I-829 approval, then petitioners whose I-526 petitions had beenapproved would have no reasonable reliance that the rules set out in 8 C.F.R. § 216.6 would notchange in midstream. If, on the other hand, approval of the I-526 petition was an officialprovisional approval of the petitioners plan, contingent on its effectuation, then a retroactivityanalysis is required.” (Chang at 51)The Chang Court determined that application of the 1998 EB-5 Precedent Decisions3 was anunacceptable retroactive application as to these particular investors which did change the rulesmidstream for them. This was an “as applied” challenge and ruling. However, the prospectiveapplication of the modified interpretations of EB-5 statutes and regulations contained in thePrecedents on new investors’ petitions was perfectly acceptable as had already been settled in adifferent case. That prior case was: R.L. Investment Limited Partners v. INS, 273 F.3d 874 (9thCir.2001) ("RLILP") (adopting in full the district courts decision in R.L. Investment LimitedPartners v. INS, 86 F.Supp.2d 1014 (D.Haw., 2000). “….The RLILP plaintiffs were not situated similarly to Appellants in the instant [Chang] case: as their I-526 petitions had not been approved, they had no reliance interest comparable to that of Appellants. They challenged the prospective application of the precedent decisions to their new unapproved I-526 applications,…..” Chang at 50.So, if EB-5 investors wish to rely on the approval of their I-526 to be relatively assured of liftingthe conditions on their LPR status, then they need to follow through with and succeed in thecomprehensive plan that they have already put forth. The investors are no more eligible tochange midstream4 than USCIS. Reasonable reliance on the comprehensive plan goes both1 April 23, 2004 USCIS Memo Re: The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a SubsequentDetermination Regarding Eligibility for Extension of Petition Validity.http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2004/readjud_042304.pdf2 Chang v. United States, 327 F.3d 911 (9th Cir. 2003)3 In 1998, the AAO (attributed to The Associate Commissioner, Examinations) through the BIA, issued four EB-5 Precedent Decisions, but theyare for the Immigrant Investors, Not Regional Centers.Matter of Ho http://www.justice.gov/eoir/vll/intdec/vol22/3362.pdfMatter of Hsuing http://www.justice.gov/eoir/vll/intdec/vol22/3361.pdfMatter of Izummi http://www.justice.gov/eoir/vll/intdec/vol22/3360.pdf For the I-924, the most pertinent part of the 13 part holding is number“(9) The Service does not pre-adjudicate immigrant-investor petitions; each petition must be adjudicated on its own merits.” However, the AAOinappropriately applies number “(3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conformto Service requirements.”Matter of Soffici http://www.justice.gov/eoir/vll/intdec/vol22/3359.pdf4 An argument could be made that IF the investor did materially change their plan BUT could still show the required results of a full “at risk”investment of the “required amount” and did “create the required number of jobs”, THEN an ab initio investigation into a totally or substantiallyaltered comprehensive business plan and the accompanying economic model and job prediction forecast should be performed. That propositionwill need to be tested in a lawsuit to see if it succeeds or fails. This would be more appropriate for a “stand-alone” investor rather than a RegionalCenter affiliated investor. 1
  • 2. ways. If at the I-829 stage, USCIS is only expected to do a straight forward fact-check to see thatthe comprehensive plan has come to fruition or is on the cusp of achieving the goals, then USCISis not required to perform an ab initio investigation into a totally new or substantially altered[materially changed] comprehensive business plan and the accompanying economic model andjob prediction forecast.The above premise is especially true for a Regional Center investor. In that case, the RegionalCenter will have gone to a great deal of effort and expense to compose a very comprehensivebusiness plan, investment strategy (with standardized business documentation) and associatedeconomic model/analysis complete with job creation forecasts based on sound methodology andcurrent reliable data. The individual investors will likely just take what the Regional Centerprovides as the basic evidence to support the I-526 and merely supplement that evidence withfinancial documents. Even the financial documents will likely have been vetted by the RegionalCenter up to USCIS standards before the investor is even allowed to join the Regional Centeraffiliated investment partnership. Even with incomplete statistical data, USCIS is willing to goon record as stating that around 90% of EB-5 investors5 are associated with a Regional Center. Itis likely even a higher percentage than that.The statutory evidentiary requirements for an I-829 petition provide that they “….„shall containfacts and information demonstrating that — (A) a commercial enterprise was established6 by thealien; (B) the alien invested or was actively in the process of investing the requisite capital; and(C) the alien sustained [these actions] throughout the period of the aliens residence in the UnitedStates.‟ 8 U.S.C. § 1186b(d)(1).” [The I-829 requirements are] “…in marked contrast to thedocumentation requirements of 8 C.F.R. § 204.6(j), governing approval of the I-526 petition…the several pages of requirements listed in this subsection [for the I-526] .... require a much morecomprehensive documentation of the petitioners plans and resources.” (Chang at 52)INA § 216A (d)(1) [8 U.S.C. § 1186b(d)(1)] now says that the petition must include evidence of: (A)(i) invested, or is actively in the process of investing, the requisite capital; and (ii) sustained the actions described in clause (i) throughout the period of the aliens residence in the United States; and (B) is otherwise conforming to the requirements of section *203(b)(5).INA § *203(b)(5) calls for “investing” the “required amount” of “capital” in a “commercialenterprise” that “creates” or “preserves” at least “ten (10) full time jobs” for “qualifyingemployees”. If the jobs have not been created at the time of the I-526 filing then a“comprehensive business plan” must be submitted. If investing through a “Regional Center” thejobs may be either “direct” or “indirect”. One must use “reasonable methodologies fordetermining the number of jobs estimated” to be “created indirectly.” All this boils down tosubmitting a very comprehensive business plan and then sticking to it.5 See:http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4c68d1f2465ae210VgnVCM100000082ca60aRCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD6 The “establishment” requirement was amended by later legislation. Now, they can just join after the fact and “engage” in an investment,including in a limited partnership. 2
  • 3. The Chang Court pointed out that “….successful execution of the approved plan, and absence ofmaterial misrepresentation in the I-526 petition …[is]… an excellent predictor of I-829approval…” Chang at 53. This supposition is contingent upon the actions that the investors takeafter that point and depends on “….if they held up their end of the bargain by fulfilling the termsof their approved I-526 petitions….” (Chang at 61)From Chang v. United States, 327 F.3d 911 (9th Cir. 2003): [Emphases added throughout.] “The EB-5 statute requires that each I-829 petition "shall contain facts and information demonstrating that — (A) a commercial enterprise was established by the alien; (B) the alien invested or was actively in the process of investing the requisite capital; and (C) the alien sustained [these actions] throughout the period of the aliens residence in the United States." 8 U.S.C. § 1186b(d)(1). In 8 C.F.R. § 216.6(d), examples of the appropriate documentation include tax returns, to show that the enterprise was in fact established; an audited financial statement, to show that the alien had actually invested; and bank statements, invoices, receipts, contracts, business licenses, and payroll records to show that the petitioner had sustained the actions throughout the two year conditional residence period. This is in marked contrast to the documentation requirements of 8 C.F.R. § 204.6(j), governing approval of the I-526 petition. We will not review the several pages of requirements listed in this subsection; suffice it to say that they require a much more comprehensive documentation of the petitioners plans and resources. At 52. The language of 8 U.S.C. § 1186b(d)(1) and the contrast between the documentation requirements of the regulations at each stage of the approval process strongly support the view that I-829 approval is a procedure intended to confirm that the petitioner fulfilled the plan set out in the I-526 petition. The governments contention that I-829 approval proceeds ab initio — and that I-526 approval therefore may not be relied upon as setting forth a plan that, if followed, will lead to I-829 approval — is not sustainable. The government argues that I-526 approval neither guarantees nor predicts I-829 approval, but the latter is clearly untrue. I-526 approval does not guarantee I-829 approval — the petitioner might not successfully "sustain the actions ... throughout the period of ... residence" — but it certainly predicts it. No one obtains I-829 approval without prior I- 526 approval. The government provides no reason to believe that the combination of I- 526 approval, successful execution of the approved plan, and absence of material misrepresentation in the I-526 petition — all characteristics that Appellants claim apply to them — was not an excellent predictor of I-829 approval up until the precedent decisions appeared.” At 53. …… “We conclude that Appellants reasonably relied on the application of 8 C.F.R. § 216.6 extant when their I-526 petitions were approved. We conclude that the INSs refashioning of 8 C.F.R. § 216.6 into an independent ab initio assessment of Appellants satisfaction of the EB-5 program standards raises serious retroactivity concerns”. At 54. …… “…..The government also argues that to the extent that Appellants severed ties to their home countries, they did so at their own risk and not on the basis of any assurances from 3
  • 4. the INS. This argument misses the point in an instructive way. Appellants sought no guarantee of success, but a contingent promise that, if they held up their end of the bargain by fulfilling the terms of their approved I-526 petitions, they would obtain the LPR status promised by the EB-5 program. This was not unreasonable.” At 61.Deference to Prior DecisionsWhile this USCIS Policy of limited deference is set forth in a memo that specifically addressesnonimmigrant petitions it is also applicable in the EB-5 context. “CIS has the authority to question prior determinations. Adjudicators are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated, merely because of a prior approval which may have been erroneous. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Each matter must be decided according to the evidence of record on a case-by-case basis. See 8 CFR § 103.8(d). However, because a recent review of CIS practices has shown that in certain instances, adjudicators have been questioning prior determinations where there is no material change in the underlying facts as a matter of routine, the below policy is being set forth.” [Emphases added.]The referenced memo is dated April 23, 2004, and the problem has been addressed throughadditional training since then to cover multiple contexts.Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988) is cited forthe following words of wisdom and the plethora of citations to back it up. “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 , 238 F.2d 32 (D.C. Cir. 1956).” [Emphases added.]The above premise of not being bound by past mistakes or earlier incorrect interpretations,finds additional support long before and after that particular case. RLILP and Chang fullysupport the notion of not being bound by past interpretations. There is however, the provisoespecially noted in Chang of not imposing unanticipated retroactive effects on a prior decisionthat had a solid basis for reasonable reliance. In other words, it is impermissible to change therules midstream or after-the- fact. 4
  • 5. The Board of Immigration Appeals (BIA) and various federal courts have set precedents andlater discarded, revised, narrowed or otherwise distinguished the holdings in certain lines ofcases along a similar and often evolving topic. This is nothing new, it has happened since thecommon law began. It is how the common law came to be. Although we in the United States relyprimarily on statutory law, certain common law principles remain in our legal system, at least thefew that have survived since 1789. The judicial branch adheres quite rigidly to the principle of“stare decisis” which is Latin for "to stand by that which is decided." It is the principal that ourprecedent decisions7 are to be followed until such time that they are overturned either by theauthority that set it or a higher authority. The authorities involved with changes to immigrationlaw include all three branches of government.In December 2009, USCIS issued another Policy Memo8 specifically addressing EB-5processing. This memo recognizes the interplay between the various stages of EB-5 applicationsand petitions.The December 2009, EB-5 memo addresses, in part:  The timing of the adjudication of EB-5 eligibility issues;  The procedures to be used when there appears to be a material change in circumstances relating to an eligibility issue following the issue‟s prior adjudicative resolution;  How an alien may seek approval of a new Form I-526 petition in order to change the focus of his or her investment to a new capital investment project or commercial enterpriseEB-5 Issues and ProcessingNow that the vast majority of immigrant investors are Regional Center affiliated, anyoneinvolved in EB-5 needs to consider the interplay between three different USCIS forms and avariety of overlapping concepts and issues.I-9249The purpose of this form is to apply for designation as a Regional Center. The applicant isusually an individual acting on behalf of a private business whether a partnership, company,corporation, etc. Some applicants may be state or local government agencies acting under somelegal authorization and mandate to try to improve their economy and yet others may be a jointpublic-private entity. What then is a Regional Center? One can look up the statutory10 andregulatory11 definitions…good luck with that. In short, the Regional Center is supposed to be awelcoming benevolent agent of the U.S. that draws foreign investors into the U.S. economy.7 8 CFR § 103.3(c).8 Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and Form I-829 Petitions; Adjudicators Field Manual (AFM)Update to Chapters 22.4 and 25.2 (AD09-38)http://www.uscis.gov/USCIS/Laws/Memoranda/Static%20Files%20Memoranda/Adjudicating%20of%20EB-5_121109.pdf9 Application For Regional Center Under the Immigrant Investor Pilot Program10 8 USC § 1153 Note: Pilot Immigration Program.11 8 CFR § 204.6(e) and (m)(3). 5
  • 6. Regional Centers are supposed to be partners to USCIS. They are unofficial ambassadors of theU.S. and their purpose is to make the attainment of immigration benefits (immigrant visas for theinvestor and family) easier by doing the hard work of project planning and coordinating multipleinvestors (foreign and domestic), providing sound investment strategies designed to createsufficient jobs which are supported by reasonable and valid economic predictions.The approval of an I-924 does not in itself provide an actual immigration benefit. It onlyprovides a label, i.e. “USCIS Designated Regional Center under the Immigrant Investor PilotProgram”. That designation allows for the marketing of a business venture to a wider audiencewith the inducement of an easier immigration visa process and perhaps the only avenue for U.S.immigration available to the immigrant investor. The Regional Center affiliated immigrantinvestor may rely on “indirect jobs” forecast through an “economic model” which has beenprovided by the Regional Center and at least reviewed by USCIS as to its methodology either foran actual project or an exemplar project similar enough to the subsequent actual investmentvehicle to instill confidence in successful attainment of an EB-5 immigrant visa.The premise of an investment as asserted in a Regional Center application, i.e. the business plan,and the vetted written documentation, are only “recommended for a favorable determination” assupporting prima facie evidence of eligibility for a future I-526 and even further I-829. A primafacie showing of eligibility, through use of previously vetted plans and documentation, is a goodstarting point but is not the final word. An individual applicant must still prove completeeligibility for a favorable determination on the individual petition. A material change to any partof that prima facie evidence which had been previously examined may derail an entire projectand have negative ramifications upon all EB-5 investors. An I-924 can be used to seek anamendment to the plans, predictions and documentation in advance of individual I-526 petitionsbeing filed en masse in order to make sure that the new prima facie evidence is still EB-5compliant.I-526The form I-526 is supposed to be supported by a viable comprehensive business plan that makesa credible projection as to job creation which is supported by the reasonable assumptions in astatistically valid economic model based on an accepted methodology. Through the I-526, theimmigrant investor says: “This is what I am going to do with regard to my investment and here ishow I am going to create the required jobs.” The plan asserted at this stage is the one againstwhich the later I-829 will be assessed for follow through. If the plan has been materially changedfrom what the investor originally put forth, then what follows at the I-829 stage becomes anunknown quantity. That is not the appropriate stage of the process to assert a new business planand a new economic model.I-829The form I-829 stage should be a straight forward fact-checking process the purpose of which isto determine if the assumptions put forth at the I-526 stage have come to fruition or are on thecusp of achieving predicted goals. 6
  • 7. Example #1: The comprehensive business plan and model predict at the I-526 stage that theinfusion of X amount of money invested in project/company Y will result in Z number of jobs.At the I-829 stage one must show that X actually was invested in Y and USCIS should acceptthat Z number of jobs, have been created.Example #2: The comprehensive business plan and model predict at the I-526 that one willinvest in a mall and X number of mall tenants jobs will be created and because of that, Ynumber of indirect jobs will be created based on investment of Z amount of money. Here, theinvestor would need to show that Z was invested in the mall and tenants have taken leases on thestores in the mall. Because of this, one can assert that X number of tenant jobs have been created,therefore, Y number of indirect jobs have also been created and one has met the requirements tolift conditions on residence status.Other Interconnected ConsiderationsThe requirements for an I-526 petition are best considered by the Regional Center applicant eventhough they are not specific to that application. Are the investment opportunities going to createenough jobs to satisfy the requirements for ALL the EB-5 investors the Regional Center can findor will the project have a finite number of EB-5 investor slots? How many domestic investorswill the project require? Do the documents that the Regional Center wants to use for theinvestment satisfy the EB-5 laws? How about the SEC laws? How about the OFAC or IRS? Willthe same documents be sufficient for both the foreign and domestic investors or does theRegional Center need two sets? Does the Regional Center want to use an escrow arrangement asa marketing tool to entice and pacify immigrant investors or will such arrangements just hinderthe overall project and lead it to fail for both foreign and domestic investors? How muchflexibility can the Regional Center build into its arrangements with EB-5 investors beforecrossing the line into the danger zone of having such arrangements be branded a material changeor an impermissible redemption agreement or of not being closely enough associated with the jobcreation or not a real “at risk” investment?The Evolving Role of USCIS in EB-5The whole of EB-5 is intertwined in a highly complex manner that dictates that the separatepetitions and applications overlap one another. None can be considered in a void unto itself. Incontrast to an I-526 or I-829, an I-924 invites material changes and it is a major function ofUSCIS to do all it can to help the Regional Centers get the preliminary matters in good order forlater compliance and a favorable deference to prior determinations on the various well vettedtechnical matters. The AAO clearly points out that USCIS is strongly encouraged to acceptassertions made during the Regional Center preliminaries later on at the I-526 stage of theprocess. This is a desirable outcome for USCIS because to be able to do so makes the subsequentI-526 adjudication easier. In order to fulfill such a request, the initial Regional Center evidencemust be worthy of consideration and deference later on by refraining from making materialchanges to what was previously approved. It is not in the best interest of USCIS to acceptdocumentation at the I-924 stage that will not be acceptable at the I-526 stage of the process. It isin the best interest of USCIS, the Regional Centers, the immigrant investors and most especially 7
  • 8. the U.S. economy and the U.S. workers, to help perfect I-924 applications and do it mostexpeditiously.USCIS has a Congressionally mandated duty to help the Regional Center applicant to furtherhelp the EB-5 immigrant investor and in doing so USCIS will help itself. The Regional Centermust prove itself worthy in order to get the desired chance and then it must fulfill its promisethrough its actions. Just as a naturalization applicant can perfect his/her N-400 application duringthe process, so too, can a Regional Center applicant perfect its I-924 application.An I-924 is similar to an N-400 in terms of reciprocity also. In the case of: Luria v. UnitedStates, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101 (1913), excerpt below, it was recognized by theU.S. Supreme Court that a grant of naturalization is a mutual agreement between thenaturalization applicant and the United States of America. The designation as Regional Centercan be viewed in a similar light. A Regional Center should be afforded ample opportunities toperfect its application for designation due to the benefits that it is expected to provide in returnfor that honor. Many high standards and promises are extracted from the applicant in order toattain status and gain rights and privileges in an air of mutual agreement to assume and bearobligations and duties on both sides in a formal exchange between them. “Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other……. ……These requirements plainly contemplated that the applicant, if admitted, should be a citizen in fact as well as in name,—that he should assume and bear the obligations and duties of that status as well as enjoy its rights and privileges. In other words, it was contemplated that his admission should be mutually beneficial to the government and himself, the proof in respect of his established residence, moral character, and attachment to the principles of the Constitution being exacted because of what they promised for the future, rather than for what they told of the past.”8 USC 1153 Note: Pilot Immigration ProgramPub. L. 102-395, title VI, Sec. 610, Oct. 6, 1992, 106 Stat. 1874, as amended provides that: (a)…. under section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)), the Secretary of State, together with the Secretary of Homeland Security, shall set aside visas for a pilot program to implement the provisions of such section. Such pilot program shall involve a regional center in the United States, designated by the Secretary of Homeland Security on the basis of a general proposal, for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial 8
  • 9. enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments and the other positive economic effects such capital investments will have. ***** (c) In determining compliance with section 203(b)(5)(A)(iii)[(ii)] of the Immigration and Nationality Act [8 U.S.C. 1153(b)(5)(A)(iii)[(ii)]], and notwithstanding the requirements of 8 CFR 204.6, the Secretary of Homeland Security shall permit aliens admitted under the pilot program described in this section to establish reasonable methodologies for determining the number of jobs created by the pilot program, including such jobs which are estimated to have been created indirectly through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.Paragraph (a) above is the statutory source of the loosely and broadly defined “pilot program”and “regional center” while (c) is the source of the inclusion of “indirect jobs” as determined by“reasonable methodologies”. The statute directs the Secretary of Homeland Security to“implement the provisions” [which translates to: write implementing regulations] which wasinitially delegated to INS [subsequently replaced by USCIS]. Congress did not provide much rawmaterial to work with so the “immigrant investor pilot program” and the requirements fordesignation as a “regional center” under that program are largely regulatory in nature as theregulations were pretty much a blank canvass to be creative with. Unfortunately, theimplementing regulations were written by Legacy INS, which was much more Law Enforcementoriented than today„s USCIS charged with being Customer Service oriented in deliveringbenefits. In 1998, the EB-5 Precedent Decisions were issued that provided some further guidanceon particular issue in the context of the individual immigrant petitions. Litigation has added tothe body of law on EB-5 but the Regional Center still does not have much case-law to drawfrom. Regulatory revisions are desperately needed as to the adjudication and AdministrativeAppellate Review process. The I-924 needs to be treated differently than the I-526 or I-829. Itdoes not have to be fully eligible and approvable at time of filing. Greater flexibility is needed inthe adjudication and review of the I-924 in order to make the Immigrant Investor Programfunction better overall.The AAO has not had a long history, if any, with reviewing I-290B Appeals of I-924 Denials,none have been published nor have any non-precedent decisions been posted yet. One non-precedent Regional Center Proposal Denial Appeal has been posted, dated in 2008, and twocertification reviews has also been posted, dated in 2009. It was recently reported in astakeholder meeting summary that somewhere in the neighborhood of thirty (30) I-924‟s and/orProposals have been denied in recent months but it is unknown if any have been appealed, timewill tell. Hopefully, it will not take USCIS as long to re-write the pertinent implementingregulations as it is taking to publish the implementing regulations for the EB-5 Amendment of2002, which still languish in endless internal review or “on the shelf” untouched, gathering dust. 9