Uscis does not pre adjudicate cases and denials at subsequent stages are not re adjudications

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  • 1. USCIS Does Not Pre-Adjudicate Cases Even When There Is A Preliminary Step Involved and Petition Revocation or Termination of Status are NOT Re-Adjudications“The Agreement between the United States of America and the Russian FederationRegarding Cooperation in Adoption of ChildrenFact Sheet and QA [Posted on www.uscis.gov on 7/13/2011]IntroductionThe Department of Homeland Security and the Department of State announced today, July 13,2011, that Secretary of State Hilary Clinton and Russian Foreign Minister Sergey Lavrov signeda bilateral adoptions agreement that will strengthen procedural safeguards in adoptions betweenour countries.*****Q. Would pre-approval guarantee that the Form I-600 will be approved once the adoptionis finalized in Russia?A. Pre-approval cannot be taken as a guarantee of final approval, because it is always possiblethat new, additional information will come to light that ultimately prevents the approval of theForm I-600 petition. However, in other countries where pre-approval systems have been in place,experience shows that pre-approval allows for problems to be addressed earlier in the adoptionprocess creating a more streamlined process for the family.” [Emphases added.]The following is from: http://www.dhs.gov/xlibrary/assets/uscis_response_cisomb_rec_40.pdfResponse to Recommendation 40, Employment Creation Immigrant Visa (EB-5) ProgramRecommendations [June 12, 2009]The CIS Ombudsman recommends that USCIS: • Issue Standard Operating Procedures (SOPs) for Form I-526 (Immigrant Petition by Alien Entrepreneur) and Form I-829 (Petition by Entrepreneur to Remove Conditions) that specifically direct EB-5 adjudicators to not reconsider or re-adjudicate the indirect job creation methodology in Regional Center cases, absent clear error or evidence of fraud;*****USCIS Response to Recommendation 40USCIS concurs with the intent of this recommendation to the extent that EB-5 adjudicatorsshould not re-adjudicate the indirect job creation methodology for Regional Center cases absentclear error or evidence of fraud. USCIS will, however, continue to review the I-829 petitions toensure that all measurable variables and assumptions that underlie the indirect job creationmethodology have, in fact, been met. For example, an investor may make a proposal to create ashopping center that would be leased to various businesses. At the I-526 stage, the investor mayclaim that this proposal would result in the hiring of a certain number of employees by the
  • 2. tenant-businesses and that a certain number of indirect jobs would be created as well. USCISmust ensure that the tenant jobs have substantially been filled to support the indirect job count.This is not re-adjudicating the job creation methodology, merely, verification of an assertionpreviously made during the I-526 stage. In the alternative, if the job creation was based on totalexpenditure of capital to create the shopping center, USCIS must make sure that the full amounthas, in fact, been invested in the job creating enterprise to support the job count.USCIS regulations provide some flexibility to respond to changed circumstances at the time theI-829 is filed by permitting the conditions to be removed from the alien investor’s permanentresidence based upon a showing that the jobs will be created within a reasonable time. USCIShas encouraged stakeholders to contact the agency should they have any concerns about how thehas applied the reasonable timeframe standard at the Form I-829 stage. USCIS will conferinternally to develop additional training sessions for adjudicators rather than issue SOPs orpolicy guidance via the AFM for Forms I-526 and I-829.Matter of Izummi, 22 I&N Dec. 169 (BIA 1998)1 held, in pertinent part: (9) The Service does not pre-adjudicate immigrant-investor petitions; each petition must be adjudicated on its own merits. ***** “In his brief, the petitioner states that in 1992 a Service official had delivered to counsel a model EB-5 investor petition that had been approved; at oral argument, counsel added that he was assured that if he followed this model petition, his petitions would also be approved. According to the petitioner, the one million dollars in capital invested in that case “would create reserves for inventory, working capital, expansion, and other partnership expenses, in the sum of $450,000. Thus, the model petition established that $450,000 of the $1,000,000 to be invested, or 45%, would be set aside as bank reserves.” The record does not contain a copy of this “model petition,” and the AAU cannot ascertain whether the cash reserves in that case were mandatory or inadvertent, temporary or long-term. The opinions of one Service official, moreover, cannot work to remove from the AAU’s jurisdiction the authority to review individual cases. See 8 C.F.R. § 103.1(f) (3) (iii), The Service does not pre-adjudicate investor petitions; 22 each petition must be adjudicated on its own merits. The fact that a particular petition (which did not result in a precedent decision) was considered qualifying in 1992, when the Service was less experienced with these types of cases, has no bearing on whether the reserve provisions in question here should also be considered qualifying.” At pp. 190-191 ______ 22. Cf. 8 C.F.R. § 214.2(l) (2) (ii) regarding non-immigrant L-1 blanket petitions.1 http://www.justice.gov/eoir/vll/intdec/nfvol22.html
  • 3. The following is NOT the EB-5 Matter of Ho 1998 AAO Precedent Decision.Matter of Ho, 19 I&N Dec. 582 (BIA 1988)2 held: [emphasis added] (1) The petitioner bears the burden in visa petition revocation proceedings of establishing that the beneficiary qualifies for the benefit sought under the immigration laws. Matter of Cheung, 12 I&N Dec. 715 (BIA 1968), reaffirmed.The first prong is akin to the termination of status that results when an I-829 for EB-5conditional residents or an I-751 for marriage-based conditional residents is denied. (2) Approval of a visa petition vests no rights in the beneficiary of the petition but is only a preliminary step in the visa or adjustment of status application process, and the beneficiary is not, by mere approval of the petition, entitled to an immigrant visa or to adjustment of status.The second prong is applicable across the board. Merely because a “relationship” exists; or abeneficiary has the required educational or occupational experience, i.e. “qualifications”; or aninvestment plan is presented and accepted; and thereby one has shown prima facie evidence ofeligibility for the desired visa “classification”; this does not pre-destine visa issuance to, oradjustment of status for, an alien who is inadmissible for some other reason. Nor does visaapproval and subsequent visa issuance or adjustment of status guarantee the lifting of conditionson status later if conditions have not been fulfilled as required. (3) The realization by the district director that he made an error in judgment in initially approving a visa petition may, in and of itself, be good and sufficient cause for revoking the approval, provided the district directors revised opinion is supported by the record.The third prong is somewhat overstated in some cases especially when applied to EB-5 I-526investor petitions revisited at the I-829 stage on certain issues. One must remember that it is notan absolute foregone conclusion that any error is enough to revoke an approval. For example, anapproved methodology shall not be revisited absent material misrepresentation by fraud orconcealment of material fact. EB-5 is loaded with assumptions, predictions, and projectionsbased on a wide range of variables presented and interpreted in a business plan and supported byan economic analysis based on an econometric model. Sound business judgment is always justthat, a judgment. Hindsight re-assessment or re-analysis in the absence of deceit is usually heldto be arbitrary, capricious, or an abuse of discretion.  The term "void ab initio", which means "to be treated as invalid from the outset", comes from adding the Latin phrase "ab initio" as a qualifier. For example, in many jurisdictions2 http://www.uscis.gov/ilink/docView/INT/HTML/INT/0-0-0-65/0-0-0-4783.html
  • 4. where a person signs a contract under duress, that contract is treated as being "void ab initio".  A proposition in law is that a courts (or an agency’s) jurisdiction may extend to encompass this power. Due to this, the appointed legal authority (a court or agency) may decide that a certain document, which purports to affect legal rights, or an act, which purports to affect legal rights, is or was null and void from the start, from its beginning, because of some vitiating element.In contract law, vitiating elements are generally accepted to include: 1) mistake by a party or in subject matter, 2) misrepresentation by a party or as to subject matter, 3) illegality of any kind, or 4) inequality of the parties.As applied to EB-5, obviously misrepresentation and illegality even when discovered long after-the-fact are pretty well settled as things that can blow up in one’s face and ruin a project foreveryone involved. The extent and nature of mistakes and inequality seem to still be in a state offlux within the EB-5 context. Mistakes in a judgment call made without deceit, bias, orcriminality should not be enough for revocation in and of themselves. However, theconsequences of mistakes are another matter all together. Each case must stand up on its ownmerits. In other words, naive, unwise, or plain old stupid mistakes alone do not seem to beenough of an epiphany to invoke the Secretary’s, i.e. Director’s discretionary authority to revokeunder INA § 205. INA § 205 REVOCATION OR APPROVAL OF PETITIONS The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.The following is from an AAO non-precedent decision at: Apr142011_01B7203.pdf “As stated above, in support of the original Form I-526, counsel asserted that the petitioner would use a 2.66 multiplier to calculate total job creation. The director approved the petition without further inquiry, apparently considering the economic formula to be a "reasonable methodology" as discussed at 8 C.F.R. §§ 204.6(j) (4) (iii) and (m) (3) (v). In the matter before us, the director now questions whether the multiplier is appropriate for the dairys location. The Ninth Circuit, in Chang v. United States of America, 327 F. 3d 911 (9th Cir. 2003), held that, during the adjudication of a Form I-829, USCIS could not review whether the initial plan submitted with the Form I-526 was qualifying, only whether the alien sustained that plan. Specifically, the court stated that the Form I-526 approval may not be "decoupled from [Form] I-829 approval." Id. The court further stated that Form I-829
  • 5. approval is predicted by Form I-526 approval and "successful execution of the approved plan." Id. As noted by the court in Chang, 327 F. 3d at 927, far more evidence is required in support of the Form I-526 petition. In fact, as stated above, the regulation at 8 C.F.R. § 204.6(j) (4) (iii) expressly requires the submission of reasonable methodologies for determining indirect job creation at the Form I-526 stage. At the Form I-829 stage, the petitioner is not required to submit such evidence, although the petitioner must use the methodologies approved at the Form I-526 stage to demonstrate that his investment has created the requisite employment. Under the reasoning of Chang, the director erred in revisiting the appropriateness of the multiplier. The director approved the Form I-526, which disclosed that the petitioner would be using the 2.66 multiplier for the location of the dairy. The petitioner did not materially change the location of the proposed employment creation and the director does not identify information that was misrepresented or not disclosed at the Form I-526 stage that would warrant a new evaluation of the multipliers used. Thus, the petitioner should be able to rely on the 2.66 multiplier as an acceptable means of demonstrating total job creation, including indirect jobs. The AAO withdraws the directors concern that the 2.66 multiplier is not appropriate.”Although the alleged mistake made by USCIS at the I-526 stage could not be revisited, that I-829failed for other reasons. One of those reasons was that even using the alleged incorrectmultiplier, at least hypothetically, AND assuming arguendo, that the multiplier could be appliedto the non-qualifying jobs (unauthorized alien employees) the project failed to produce therequired number of jobs.Back to the holding in Matter of Ho (1988): (4) Doubt cast on any aspect of the petitioners proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.The fourth prong is a generally accepted prerequisite to any re-evaluation of what was alreadyapproved at an earlier stage of the process within the EB-5 context. In EB-5, this prong of thisholding heavily influences the application of the previous prong. Business decisions are loadedwith discretionary decisions and judgment calls based on assumptions and “doubts” abound. If arisky business is tried and succeeds, everybody is happy but when it fails, second-guessing canoverpower anyone and then the “If only...” mentality can take over. USCIS adjudicators havebeen urged not to turn mere doubts into suspicion in an irrational manner. (5) Evidence serving as the basis of a notice of intention to revoke approval of a visa petition need not have been previously unavailable or undiscoverable.The fifth prong as applied in the EB-5 context is important to an I-829 denial, which is akin toan I-526 revocation. When the evidence submitted with the I-526 was switched or materiallyaltered from that which had been vetted and approved with an I-924 but the deception or
  • 6. impermissible material change is not discovered until the I-829 stage of the process, USCIS isfully within its rights and authority to terminate status rather than lift conditions. “Fool me once shame on you, fool me twice shame on me.” (6) It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice.The sixth and last prong gets plenty of use across-the-board. Lousy, unsupported explanationswill not be accepted. Reading through a great many decisions, I have noticed far too manyunsupported assertions for my liking. It bothers me that so many people have become involved inEB-5 and persist in taking their clients down this path. I do not want to see a return to the “darkdays of EB-5” when sleazy developers and assorted con artists nearly killed EB-5 and RegionalCenters for good.One last tidbit:The following is from an OSC Technical Assistance Letter dated January 24, 2011, found at:http://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2011/138.pdf “With respect to your query, the request for more or different documents violates ourstatute only if committed with the intent to discriminate based on citizenship status or nationalorigin. 8 U.S.C. §1324b (a) (6). An employer can avoid discriminatory documentary practices byensuring a consistent approach to employment eligibility verification is taken without regard toan employee’s citizenship status or national origin. Further, OSC will bring the matter you raiseto the attention of USCIS.” [Emphasis added.]The above letter was written in response to a question arising from the need to demonstrate thatthe direct employees claimed in an EB-5 funded enterprise were qualifying employees. It is NOTillegal to verify lawful employees for the purpose of complying with a statute or other lawfulrequirement of a government agency. The classic example is when employed under agovernment contract but there are other possibilities. EB-5 is one of those other possibilities. Iwish to point out for the record that this is a poor argument from the start no matter who makesit. This particular argument was tried and failed in the most recent EB-5 I-829 Denial Affirmedon Certification posted on www.uscis.gov dated April 14, 2011 (the failed South Dakota RCDairy Farm case). It is further noted that the author of the OSC inquiry was obviously merelycomplying with a request by a client and there is nothing wrong with that. They have done aservice to others working in EB-5. Their website does not proclaim its offices to be expert in EB-5 and EB-5 is specifically absent from their posted list of cases normally handled.