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AAO Lacks Authority to Find a Regulation to be ultra vires         USCIS Is Authorized to Interpret and State Policy & Pro...
investment amount would encourage investment in areas that are truly suffering       high unemployment. While we are bound...
The Administrative Procedure Act (APA), Pub.L. 79-404, 60 Stat. 237, enactedJune 11, 1946, is the United States federal la...
(c) After notice required by this section, the agency shall give             interested persons an opportunity to particip...
notwithstanding the business plan contained in the Form I-526, the      requirements for the removal of conditions have be...
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AAO lacks authority to find a regulation ultra vires but USCIS can grant relief

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AAO lacks authority to find a regulation ultra vires but USCIS can grant relief

  1. 1. AAO Lacks Authority to Find a Regulation to be ultra vires USCIS Is Authorized to Interpret and State Policy & ProcedureIn footnote #1 within the AAO non-precedent of September 21, 2010, (excerptfollows) which ultimately upheld the Service Center Director’s Denial of an I-526filed by a Regional Center-affiliated EB-5 immigrant investor, USCIS’s AppellateBody found itself, as an arm of USCIS bound by the agency’s own regulations. Inthat the regulation in question, which the director and AAO determined had been usedto support an untenable outcome was properly promulgated pursuant to APAcomment-and-notice rulemaking AAO lacked the authority to overrule it. This is sobecause it was not a rule set by its own precedent but rather by the comment-and-notice process. After years of increased experience and developments in various keyissues, AAO has expressed on behalf of USCIS and in hindsight that 8 C.F.R. § 204.6(j) (6) (ii) (B) has been used to support an outcome that now appears to be incontravention to clear Congressional Intent. A Federal Court has the power to quashsuch a regulation as ultra vires1, through its broad interpretive authority, the agencydoes not. If an agency’s Appellate Body attempted to declare as ultra vires, alongstanding rule that had been duly promulgated, then that action would itself beultra vires. See 5 USC § 553(esp. (b)-(d)) and § 558 (b) “A sanction may not beimposed or a substantive rule or order issued except within jurisdiction delegated tothe agency and as authorized by law.” Looks like it’s time for a change. “1 The proposed investment will be wholly and entirely within Ward 2, a ward that is not itself suffering high unemployment in relation to the national unemployment rate. The directors conclusion that the investment will be within a targeted employment area is based on a designation by [REDACTED INFORMATION] for Planning and Economic Development, Washington, D.C. pursuant to 8 C.F.R. § 204.6(j)(6)(ii)(B). [REDACTED’s] designation includes Ward 2, but, of necessity, includes other wards and census tracts within D.C. to reach the necessary average unemployment rate. The directors conclusion that we must accept the designation is a reasonable interpretation of 8 C.F.R. § 204.6(j)(6)(ii)(B). That said, it is clear that the petitioners investment of only $500,000 wholly within a ward that is not itself suffering high unemployment completely undermines the congressional intent underlying section 203(b)(5)(C)(ii) of the Act. Specifically, Congress intended that the reduced1 Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legaltranslation and substitute is "beyond power". If an act requires legal authority and it is done withsuch authority, it is [characterized] in law as intra vires (literally "within the powers"; standardlegal translation and substitute, "within power"). If it is done without such authority, it is ultravires. Acts that are intra vires may equivalently be termed "valid" and those that are ultra vires"invalid". http://en.wikipedia.org/wiki/Ultra_viresDecember 1, 2011 Page 1
  2. 2. investment amount would encourage investment in areas that are truly suffering high unemployment. While we are bound by 8 C.F.R. § 204.6(j)(6)(ii)(B), it would appear that this regulation has produced unintended consequences that are clearly contrary to congressional intent.”The flipside of the ultra vires issue is the inability to give new rights that are not dulyand properly authorized by an effective rule, i.e. statute, precedent, or regulation. “When the director denied the petition on October 10, 2008, the director provided instructions on how to appeal the decision to the AAO. This language was included in error, because the regulations in effect at that time contained no provision to allow the petitioner to appeal the denial of an R-1 nonimmigrant visa petition. The directors erroneous inclusion of appeal instructions in the denial notice does not supersede the regulations or give the AAO the authority to accept R-1 appeals filed at that time. The regulation is binding on U.S. Citizenship and Immigration Services (USCIS) employees in their administration of the Act, and USCIS employees do not have the authority to allow for appeal rights where none exist. See, e.g., Panhandle Eastern Pipe Line Co. v. Federal Energy Regulatory Commission, 613 F.2d 1 120 (C.A.D.C., 1979) (an agency is bound by its own regulations); Reuters Ltd. v. F.C. C., 78 1 F.2d 946, (C.A.D.C.,1986) (an agency must adhere to its own rules and regulations; ad hoc departures from those rules, even to achieve laudable aims, cannot be sanctioned). An agency is not entitled to deference if it fails to follow its own regulations. U.S. v. Heffner, 420 F.2d 809, (C.A. Md. 1969) (government agency must scrupulously observe rules or procedures which it has established and when it fails to do so its action cannot stand and courts will strike it down); Morton v. Ruiz, 415 U.S. 199 (1974) (where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures). Furthermore, the AAOs authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if a service center director incorrectly advised the petitioner that it had appeal rights, the AAO would not be bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff’d, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S. Ct. 51 (2001).”Above from: Jan062009_01D13101.pdfDecember 1, 2011 Page 2
  3. 3. The Administrative Procedure Act (APA), Pub.L. 79-404, 60 Stat. 237, enactedJune 11, 1946, is the United States federal law that governs the way in whichadministrative agencies of the federal government of the United States may proposeand establish regulations. The APA also sets up a process for the United States federalcourts to directly review agency decisions. It is one of the most important pieces ofUnited States administrative law. The Act became law in 1946.2 The APA is found inTitle 5 of the United States Code (USC) beginning at section (§) 500. 5 USC § 553. Rule making (a) This section applies, according to the provisions thereof, except to the extent that there is involved— (1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include— (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply— (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.2 http://en.wikipedia.org/wiki/Administrative_Procedure_ActDecember 1, 2011 Page 3
  4. 4. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except-- (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.USCIS states in the DRAFT EB-5 Policy Guidance Document which is open forcomment until December 9, 2011--- “Historically, USCIS has required a direct connection between the business plan the investor has provided and the subsequent removal of conditions. USCIS would not approve a Form I-829 petition if the investor had made an investment and created jobs in the United States if the jobs were not created according to the plan presented in the Form I-526. While that position is a permissible construction of the governing statute, USCIS also notes that the statute does not require that direct connection. In order to provide flexibility to meet the realities of the business world, USCIS will permit an alien who has been admitted to the United States on a conditional basis to remove those conditions when circumstances have changed. An individual investor can, at the prescribed time, proceed with his or her Form I-829 petition to remove conditions and present documentary evidence demonstrating that,December 1, 2011 Page 4
  5. 5. notwithstanding the business plan contained in the Form I-526, the requirements for the removal of conditions have been satisfied. USCIS notes, however, that it is more beneficial for an immigrant investor to utilize the business plan contained in the Form I-526. As the Ninth Circuit Court of Appeals has recognized, if the alien investor is seeking to have the conditions removed from his or her status based on the business plan contained in the Form I-526, USCIS may not revisit certain aspects of the business plan, including issues related to the economic analysis supporting job creation. Chang v. U.S., 327 F.3d 911, 927 (9th Cir. 2003). If, however, the immigrant investor is seeking to have his or her conditions removed based on a business plan not consistent with the approved I-526, the Chang decision does not foreclose USCIS from requiring or requesting evidence to prove the element of job creation. This may include revisiting issues previously adjudicated in the Form I-526, such as the economic analysis underlying the new job creation. USCIS also notes that, in the case of a petition affiliated with a regional center, the petitioner will only be able to claim indirect job creation if the new business plan falls within the scope of the regional center.” [Emphases added.]I believe that USCIS is allowed to state this interpretation via a Policy Memoespecially because of the for good cause exception. See 5 USC § 553(b) exceptions(A) and (B) as well as ¶ (d) (1)-(3). Also, because it is in essence a form of reliefrather than a sanction, it does not run afoul of 5 USC § 558(b). I fully support thisstep forward. Lastly, “within the scope of the regional center” sounds an awful lotlike what you should expect through the use of Transparent Complexity in RegionalCenter planning.December 1, 2011 Page 5

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