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USCIS Form I-924 Application Not Petition

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  • 1. USCIS Form I-924 is a License Application, Not a Visa Petition By Joseph P. Whalen (May 11, 2012)I cannot stress enough just how critical it is to put things in their proper contextwhen dealing with issues under the Immigration and Nationality Act (INA). Acase in point is the difference between a visa “petition” and other types of formsmost of which are best characterized as “applications” (or “requests”, other“petitions”, or “notices”). While in certain instances the words petition andapplication might appropriately be used synonymously, even a few under the INA,for the most part there is a clear distinction. First, I feel it may help to take an in-depth look at the definitions of these two words. Then, I will compare and contrastthe petitions and applications that may be encountered in EB-5. Petition v. ApplicationPetition1 [puh-tish-uhn]noun 1. a formally drawn request, often bearing the names of a number of those making the request, that is addressed to a person or group of persons in authority or power, soliciting some favor, right, mercy, or other benefit: a petition for clemency; a petition for the repeal of an unfair law. 2. a request made for something desired, especially a respectful or humble request, as to a superior or to one of those in authority; a supplication or prayer: a petition for aid; a petition to God for courage and strength. 3. something that is sought by request or entreaty: to receive ones full petition. 4. Law . an application for a court order or for some judicial action.verb (used with object) 5. to beg for or request (something). 6. to address a formal petition to (a sovereign, a legislative body, etc.): He received everything for which he had petitioned the king. 7. to ask by petition for (something).1 http://dictionary.reference.com/browse/petition Page 1 of 7
  • 2. verb (used without object) 8. to present a petition. 9. to address or present a formal petition. 10. to request or solicit, as by a petition: to petition for redress of grievances.Origin: 1300–50; Middle English peticioun (< Middle French peticion ) < Latin petītiōn- (stem of petītiō ) a seeking out, equivalent to petīt ( us ) (past participle of petere to seek) + -iōn- -ion -ion a suffix, appearing in words of Latin origin, denoting action or condition, used in Latin and in English to form nouns from stems of Latin adjectives (communion; union), verbs (legion; opinion), and especially past participles (allusion; creation; fusion; notion; torsion). See: http://dictionary.reference.com/browse/-ionRelated forms: pe·ti·tion·a·ble, adjective pe·ti·tion·er, pe·ti·tion·ist, noun coun·ter·pe·ti·tion, noun, verb pre·pe·ti·tion, noun, verb (used with object) re-pe·ti·tion, verb (used with object) un·pe·ti·tioned, adjectiveSynonyms: 1. suit. 2. entreaty, solicitation, appeal. 3. solicit, sue. See appeal. Page 2 of 7
  • 3. petition 2 (pɪˈtɪʃən)—n 1 a written document signed by a large number of people demanding some form of action from a government or other authority 2 any formal request to a higher authority or deity; entreaty 3 law a formal application in writing made to a court asking for some specific judicial action: a petition for divorce 4 the action of petitioning— vb (foll by for ) 5 ( tr ) to address or present a petition to (a person in authority, government, etc): to petition Parliament 6 to seek by petition: to petition for a change in the lawAPPLICATION3 1 : an act of applying: a (1) : an act of putting to use <application of new techniques> (2) : a use to which something is put <new applications for old remedies> (3) : a program (as a word processor or a spreadsheet) that performs one of the major tasks for which a computer is used b : an act of administering or superposing <application of paint to a house> c : assiduous attention <succeeds by application to her studies> 2 a : request, petition <an application for financial aid> b : a form used in making a request 3 : the practical inference to be derived from a discourse (as a moral tale) 4 : a medicated or protective layer or material <an oily application for dry skin> 5 : capacity for practical use <words of varied application>.2 "petition." Collins English Dictionary - Complete & Unabridged 10th Edition. HarperCollinsPublishers. 10 May. 2012. <Dictionary.com http://dictionary.reference.com/browse/petition>.3 See http://www.merriam-webster.com/dictionary/application Page 3 of 7
  • 4. When requesting certain considerations under the INA, one will either file apetition on behalf of another person or sometimes on their own behalf. The mostcommon and prevalent petition used is the visa petition. The visa petition is used toobtain a determination as to the beneficiary’s (or self-petitioner’s) eligibility andqualifications for a particular classification as defined in the law.Many petitions are based on a pre-existing “relationship” (spousal, parent-child,sibling, adoption, employer-employee, business affiliation) while others are basedon various “qualifications” such as: education, training or some other specificqualifications such as specialized knowledge, essential skills, or often quiteunfortunately, a precise circumstance such as the death of a loved-one or abuse.Regardless of the underlying factor(s) to be proven, they usually must exist at thetime of filing the visa petition. The vast majority of visa petitions rely on thisconcept in order justify allocation of a limited quantity of visas based on thepetition filing date as a “priority date” for later visa issuance purposes. In very rareand limited contexts, later changes in circumstances may be curative of an earlierdefect or ineligibility.In the realm of EB-5, we have three primary forms and one supplemental form todeal with and they are: • I-924, Application For Regional Center Under the Immigrant Investor Pilot Program and • I-924A, Supplement to Form I-924 • I-526, Immigrant Petition by Alien Entrepreneur • I-829, Petition by Entrepreneur to Remove ConditionsMost EB-5 aliens (~93-98%) will obtain an actual Immigrant Visa abroad by filingwith a consulate or embassy via the form: • DS-230, Application for Immigrant Visa and Alien RegistrationAdditional USCIS forms that may be encountered are the ones used by the fewEB-5 immigrants who actually adjust status domestically rather than apply for anImmigrant Visa abroad: • I-485, Application to Register Permanent Residence or Adjust Status • I-131, Application for Travel Document • I-765, Application for Employment Authorization Page 4 of 7
  • 5. An ever smaller percentage of EB-5 immigrants (principals and dependents) mightneed one of these: • I-601, Application for Waiver of Grounds of Inadmissibility • I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal • I-290B, Notice of Appeal or Motion [Hopefully only a few of these.]Years down the road, many EB-5 immigrants might utilize these forms: • N-400, Application for Naturalization • N-600, Application for Certificate of Citizenship • N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA) [Hopefully very few of these.].EB-5 refers to the employment-based, fifth preference visa category statutorilydefined in INA § 203(b)(5). EB-5 is therefore a “visa classification”. Due to thefact that there are statutorily prescribed limits to the number of these “preferencecategory” visas they are allocated on a first in-first out basis. As with anyallocation process, the person desiring a visa gets in a potentially long line for oneof them. It is because of the limits upon allocation that the filing date isinextricably tied to the allocation preference. The “filing date” of an approved visapetition is transformed into the “priority date” for visa issuance purposes. Theimportance of the filing date is the reason that one must actually be eligible andqualified for the classification sought at the time of filing the visa petition. Thisprevents ineligible and unqualified individuals from jumping ahead of otherswaiting in line or queued up for a visa in the same preference category.The above discussion relates to a critical issue when there are numerical andcountry of origin limits for a visa in a particular category. It makes sense and is afair way to allocate a limited supply of visas. Unfortunately, over time thisimportant consideration has been applied inappropriately to contexts in which itdoes not belong. The I-924 is not a visa petition and does not suffer from the samelimits as the visas it relates to. The I-924 is really more like a license applicationthan anything else.The application for Regional Center designation is basically a request for a licenseto offer or market job-creating investment opportunities to would-be EB-5immigrants. The Regional Center applicant is not required to submit a proposalthat is 100% approvable at time of filing. The I-924 may be perfected after filing. Page 5 of 7
  • 6. The Regional Center proposal is fully amenable to substantial and material changespost-filing in order to make it approvable. Over the years, some changes have beenmade at the suggestion of or by the direction of the agency. This has beennecessary to ensure compliance and to make the projects offered to EB-5 aliensmeet the higher burden of being approvable at time of filing their I-526 visapetitions. Another aspect of this “license” are the recordkeeping duties, jobcreation tracking, evidence allocation, and assorted reporting responsibilities forthe Regional Center sponsors/principals. Those activities make up “duties owed”by the Regional Center to its EB-5 alien partners. USCIS has an interest in assuringthat such hyper-technical matters are settled up-front before approving theRegional Center.The actual EB-5 entrepreneur or investor files an individual I-526 visa petition forhimself and qualifying dependent family members 4. The independent 5 EB-5petitioner may submit evidence of jobs already created or preserved or a plan to doit. The Regional Center affiliated EB-5 petitioner will rely on the plans created bythe Regional Center and previously vetted by USCIS which may include EB-5“indirect jobs”. The affiliated petitioner has an advantage in being able to includethose “indirect jobs”. The independent EB-5 petitioner may only rely on EB-5“direct” employees. While either an affiliated or independent I-526 petitioner mustput forth evidence of sufficient “clean” money for the investment, only theaffiliated petitioner must rely on a Regional Center’s plan to create or preservesufficient jobs for qualifying employees.The mere fact of having submitted a plan and secured USCIS approval does notirrevocably lock any EB-5 alien into only that plan as initially submitted and/orapproved. The reality of life is that plans very often can and do change, oftenunexpectedly and in unpredictable ways. Changes to an EB-5 business plan after ithas been approved and commenced are not fatal to the immigration process. Thereare however some restrictions on post-approval changes.A Regional Center affiliated EB-5 immigrant is limited to changes within theapproved scope of the Regional Center. That means that in order to continue tocount “indirect jobs” the affiliated alien’s post-approval changes in the plan mayonly stray beyond the USCIS-approved operational parameters of that Regional4 The familial relationships add a whole separate dimension to the evidence requirements!5 The true entrepreneur who is not affiliated with a Regional Center and represents a single-digitpercentage of EB-5 aliens (~1-8%). Page 6 of 7
  • 7. Center IF they will be able to show “EB-5 direct jobs” later during the I-829process.The I-829 is also a “petition” but in this petition, the statute demandsdemonstrating the achievement of goals set as conditions subsequent 6 to thecommencement of the two-year period of lawful residence initially afforded. The I-829 requires a showing of evidence to support a finding that the statutorilymandated results have come to pass or as allowed by the implementing regulations,to be on the cusp of achieving the goals within a reasonable period of time.Meeting this back-end burden of proof or in other words, substantiating one’s priorassertions is reliant on suitable evidence. The particular evidence needed isvariable but it is tied to the plan as effectuated and based on the reasonablemethodologies previously approved with regard to “indirect jobs” or as specified inthe regulations regarding EB-5 “direct jobs”. Specific evidence of “direct jobs” isstated in the regulations at 8 CFR § 216.6 (a)(4)(iv).In consideration of the “reasonable methodologies” allowed by statute [8 USC §1153 Note (§ 610(c) of the Appropriations Act of 1993, as amended)] to bepresented to USCIS and the agency’s acceptance of them, there may be a widerange of evidentiary possibilities when substantiating “indirect jobs”. In thesesituations, the previously presented, vetted, and approved “methodologies” vary. Inthe preliminary stages, the Regional Center, on behalf of the EB-5 immigrants,states its assumptions and expectations. The anticipated schedule of the project’sactivities are presented and certain conditions precedent are identified asacceptable signals of progress and/or success.For example, suppose that the plan called for expanding a factory in order addthree new assembly lines according to a predictable construction schedule.Perhaps everything goes perfectly on time. No problem! Now suppose that anunexpected hurricane prevented the shipment of iron ore to a processing facilityand this has caused a delay to the Regional Center EB-5 factory expansion project.OK, all is not lost. Suppose that the first two assembly lines were completed onschedule and after the foul weather cleared up, activities resumed according totheir prior pace. This would be a situation where it is reasonably shown that theadditional activities which will be necessary for full job creation have gotten backon track and the remainder of the jobs will be created after a specific limited delay,within a reasonable period of time. Many more possibilities exist out there!6 Money expended and jobs created (or preserved) in accordance with the law regardless of theplan. The results are what matter and will determine whether conditions are lifted from status. Page 7 of 7

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