Please Prepare for Sept 15th 2011 EB-5 Engagement

512 views

Published on

Think about it and ask questions.

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
512
On SlideShare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
2
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Please Prepare for Sept 15th 2011 EB-5 Engagement

  1. 1. Comments In Preparation for September 15th 2011, EB-5 Stakeholder Engagement8 CFR § 204.6 Petitions for employment creation aliens.(m) Immigrant Investor Pilot Program —(1) Scope. The Immigrant Investor Pilot Program isestablished solely pursuant to the provisions of section 610 of the Departments of Commerce,Justice, and State, the Judiciary, and Related Agencies Appropriation Act, and subject to allconditions and restrictions stipulated in that section. Except as provided herein, aliens seeking toobtain immigration benefits under this paragraph continue to be subject to all conditions andrestrictions set forth in section 203(b)(5) of the Act and this section.(3) Requirements for regional centers. Each regional center wishing to participate in theImmigrant Investor Pilot Program shall submit a proposal to the Assistant Commissioner forAdjudications, which: ...............The application process is already a done deal. Once getting the designation, it’s up to theRegional Center to live up to its end of the bargain. If it does not fulfill its function it gets-the-axe ....(6) Termination of participation of regional centers. To ensure that regional centers continue tomeet the requirements of section 610(a) of the Appropriations Act, a regional center mustprovide USCIS with updated information to demonstrate the regional center is continuing topromote economic growth, improved regional productivity, job creation, or increased domesticcapital investment in the approved geographic area. Such information must be submitted toUSCIS on an annual basis, on a cumulative basis, and/or as otherwise requested by USCIS, usinga form designated for this purpose. USCIS will issue a notice of intent to terminate theparticipation of a regional center in the pilot program if a regional center fails to submit therequired information or upon a determination that the regional center no longer serves thepurpose of promoting economic growth, including increased export sales, improved regionalproductivity, job creation, and increased domestic capital investment. The notice of intent toterminate shall be made upon notice to the regional center and shall set forth the reasons fortermination. The regional center must be provided 30 days from receipt of the notice of intent toterminate to offer evidence in opposition to the ground or grounds alleged in the notice of intentto terminate. If USCIS determines that the regional centers participation in the Pilot Programshould be terminated, USCIS shall notify the regional center of the decision and of the reasonsfor termination. As provided in 8 CFR 103.3, the regional center may appeal the decision toUSCIS within 30 days after the service of notice.8 CFR 204.6(m)(6) is too big and complex as is and should be broken down and expanded inorder to make it clearer to the Regional Center sponsors/applicant/management.
  2. 2. Suggested Modifications:8 CFR § 204.6 Petitions for employment creation aliens.(m) Immigrant Investor Pilot Program. .....(6) Continuing Participation as a USCIS-Designated Regional Center. USCIS is obligated toensure that Regional Centers continue to meet the requirements of section 610(a) of theAppropriations Act. Failure to continue to serve the intended purposes may result in a RegionalCenter’s suspension or termination from the Immigrant Investor Pilot Program.(i) Reporting Requirement. A Regional Center must provide USCIS with updated information todemonstrate the Regional Center is continuing to promote: economic growth, improved regionalproductivity, job creation, or increased domestic capital investment in the approved geographicarea. Such information must be submitted to USCIS on an annual basis, on a cumulative basis,and/or as otherwise requested by USCIS, using a form designated for this purpose and inaccordance with the form instructions.(ii) Termination of Program Participation of Regional Centers.(A) USCIS will issue a notice of intent to terminate the participation of a Regional Center in theImmigrant Investor Pilot Program if a Regional Center fails to submit the required information orupon a determination that the Regional Center no longer serves the purpose of promotingeconomic growth, including: economic growth, improved regional productivity, job creation,and increased domestic capital investment. The notice of intent to terminate shall be made uponnotice to the Regional Center and shall set forth the reasons for termination. The Regional Centermust be provided 30 days from date of the notice of intent to terminate, 33 days when served bymail, to offer evidence in opposition to the ground or grounds alleged in the notice of intent toterminate.(B) If USCIS determines that the Regional Centers participation in the Immigrant Investor PilotProgram should continue, USCIS shall withdraw its intent to terminate and notify the RegionalCenter of its findings and conclusions in a new decision. Such decision notice shall either re-affirm the prior approval, or be issued as a modified approval notice; incorporating any and allprior amendments or new alterations made during the successful rebuttal to intended termination.(C) If USCIS determines that the Regional Centers participation in the Immigrant Investor PilotProgram should be terminated, USCIS shall notify the Regional Center of its findings andconclusions in the decision and of the specific legal grounds for termination. As provided in 8CFR § 103.3, the Regional Center may appeal the decision to USCIS within 30 days after properservice of notice.
  3. 3. PILOT IMMIGRATION PROGRAM [8 USC § 1153 Note]Pub. L. 102–395, title VI, § 610, Oct. 6, 1992, 106 Stat. 1874, as amended by Pub. L. 105–119,title I, § 116(a), Nov. 26, 1997, 111 Stat. 2467; Pub. L. 106–396, § 402, Oct. 30, 2000, 114 Stat.1647; Pub. L. 107–273, div. C, title I, § 11037(a), Nov. 2, 2002, 116 Stat. 1847; Pub. L. 108–156, § 4, Dec. 3, 2003, 117 Stat. 1945, provides that:―(a) Of the visas otherwise available under section 203(b)(5) of the Immigration and NationalityAct (8 U.S.C. 1153(b)(5)), the Secretary of State, together with the Secretary of HomelandSecurity, 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 theSecretary of Homeland Security on the basis of a general proposal, for the promotion ofeconomic growth, including increased export sales1, improved regional productivity, jobcreation, or increased domestic capital investment.A regional center shall have jurisdiction over a limited geographic area, which shall be describedin the proposal and consistent with the purpose of concentrating pooled investment in definedeconomic zones. The establishment of a regional center may be based on general predictions,contained in the proposal, concerning the kinds of commercial enterprises that will receivecapital from aliens, the jobs that will be created directly or indirectly as a result of such capitalinvestments, and the other positive economic effects such capital investments will have.‖The EB-5 visa is found in INA § 203(b)(5) which is entitled ―employment creation‖. Jobcreation is mentioned twice and capital investment is mentioned three times and capital isreferenced a fourth time in § 610(a) of the Appropriations Act [found at 8 USC § 1153 Note].The bottom line of EB-5 is simple and two-fold invest capital and create jobs. These are the keypieces of data that USCIS needs to collect but only collecting that data is not going to satisfyanyone, especially Congress.1 Export sales were the original focus of the EB-5 visa but later dropped as an absoluterequirement however may still be included and will be viewed equally with the other possibilitiesas adding value to the output of a Regional Center. This was done through the amendment inPub. L. 106–396, § 402 by adding the other possibilities of “improved regional productivity, jobcreation, or increased domestic capital investment” and making them all potential outcomes byusing the word ―or‖ to connect them.
  4. 4. Comments on Regional Center and Overall EB-5 Program Monitoring EffortsForm I-924A is a good idea and a good start but needs refinement and should be a part of a morecomprehensive monitoring program. What is required to be counted and what is worth counting?As I understand it, USCIS commissioned a study which was to entail a survey of the existingRegional Centers. Even if that study has not yet been completed, USCIS should have somepreliminary findings that may have suggested what can be expected to be available for reportingpurposes. What is planned so far?JobsNew direct jobs created v. new indirect jobs created v. (in)direct jobs maintained in a troubledbusiness v. base-level of (in)direct jobs preserved or ―maintained‖ during the expansion of abusiness.Grand Total or Aggregate: Total new, preserved, direct, and indirect jobs: by industry; sinceapproval; by year; by state; for ALL Regional Centers.Aggregate: Total new direct, and indirect jobs by industry; since approval; by year; by state; byeach individual Regional Center.Total new direct jobs by industry; since approval; by year; by state; by Regional Center.Total new indirect jobs by industry; since approval; by year; by state; by Regional Center.Total new direct and indirect jobs by industry; since approval; by year; by state; by RegionalCenter.Total preserved direct jobs by industry; since approval; by year; by state; by Regional Center.Total preserved indirect jobs by industry; since approval; by year; by state; by Regional Center.Total preserved direct and indirect jobs by industry; since approval; by year; by state; byRegional Center.Capital InvestedAggregate; aggregate by industry; aggregate by year; aggregate by country of origin.Domestic capital investments:Regional Center Domestic Investors,Estimated Indirect Domestic Capital Investments and growth,
  5. 5. Visa UsageAggregate Total: Principals and Derivatives;  by country; by year:  Per Regional Center,  Non-Regional Center Investors: o Stand-alone investors, o Independent EB-5 Investment Groups,  Overall ProgramPrincipals;  by country; by year:  Per Regional Center,  Non-Regional Center Investors: o Stand-alone investors, o Independent EB-5 Investment Groups,  Overall ProgramDerivatives;  by country; by year:  Per Regional Center,  Non-Regional Center Investors: o Stand-alone investors, o Independent EB-5 Investment Groups,  Overall ProgramRegional Center Program ManagementPromotion-  Budget, source of committed funds, and expenditures: o Foreign agents. o Foreign travel. o Printed Materials (brochures, flyers). o Websites.  Domestic Partners: o Private entities, o Local government agencies, o State agencies.
  6. 6. Services and Fees-  Due Diligence Mechanisms:  Vetting of funds,  Screening for inadmissibility issues: o Principal, o Spouse, o Child(ren).  Legal Services: o I-526 Preparation and prima facie evidence submittal, o Other Visa or I-485 services, o I-829 Petition and evidence in support of expenditure and job creation submittal, o Any ―conflict of interest‖ as to legal service providers? o Separate Providers for RC v. investors? o Full disclosure?  Fees:  Financial vetting services,  Inadmissibility screening,  I-526 preparation,  Consular Processing assistance, o For Preparation, o For Appearance(s).  Adjustment of Status assistance, o For Preparation, o For Appearance(s).  I-829 preparation,  Collateral Services2 at any stage of the process: Appeals, Motions, RFE Responses, and NOID Rebuttals, o For Preparation, o For Inquiries o For Appearance(s).It would be helpful to the EB-5 Stakeholders to have a better idea of what specificinformation USCIS wants to collect.2 There should be minimal need for such services.

×