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Comments on USCIS Form I-526, Immigrant Petition by Alien Entrepreneur                        OMB Control No. 1615-0026USC...
.....      (3) Visas shall next be made available, in a number not to exceed 10 per centum of      the number specified in...
labor, and (B) the employment of such aliens will not adversely affect the       wages and working conditions of the worke...
USCIS and INS before it never implemented the upward adjustment as allowed by thestatute. USCIS should either actually wri...
be providing information as to the non-EB-5 funds in a single submission as asupplement to the entire project in support o...
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Comments on uscis form i 526 8-12-2011 jpw

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Comments on uscis form i 526 8-12-2011 jpw

  1. 1. Comments on USCIS Form I-526, Immigrant Petition by Alien Entrepreneur OMB Control No. 1615-0026USCIS has already announced that it plans to make changes to the forms used within theEB-5 Immigrant Investor Program. On May 18, 2011, USCIS announced proposedchanges to the various aspects and components of the overall EB-5 program. This is anearly opportunity to voice some suggestions towards that effort at least as this one form isconcerned. Specific suggestions for changes to this form follow discussion of the programand some of its history.BackgroundIn 1990, Congress created the EB-5 Immigrant Investor Program in the hopes of creatingjobs and spurring investment in the United States. The EB-5 program is available toprospective immigrants who invest in a new commercial enterprise that will create atleast 10 full-time jobs in the United States. EB-5 investors may petition to participateeither on their own1 or under a USCIS-designated “Regional Center.” The EB-5program is a recycled version of an earlier INS investor program.A Brief Synopsis of the History the Immigrant Investor Visa2Congress did not create the immigrant investor classification, they merely codified it andmodified it twenty-four years after the fact in the Immigration Act of 1990 (IMMACT).Back in 1965, Congress made a major overhaul of the Immigration and Nationality Act.That 1965 amendment did not include an immigrant investor visa category. The 1965amendment included an undefined category of “other qualified immigrants” among the“nonquota (nonpreference) immigrants” newly renamed “special immigrants” in INA §101(a)(27).Former INA §§ 203 (a)(3), (a)(6), (a)(8) [8 USC §§ 1153 (a)(3), (a)(6), (a)(8)] (1965)provided, in pertinent part: (a) Aliens who are subject to the numerical limitations specified in section 1151(a) of this title shall be allotted visas or their conditional entry authorized, as the case may be, as follows:1 A non-Regional Center affiliated investor may go it alone or in a group with other investors who might or mightnot also be seeking an EB-5 immigrant visa. See 8 CFR § 204.6(g).2 For a much more extensive review of the history and development of the Immigrant Investor Visa see:http://www.slideshare.net/BigJoe5/a-survey-of-the-immigrant-investor-visa-1966-2011-june-27-2011-jw 1
  2. 2. ..... (3) Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 1151(a)(1) or (2) of this title, to qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences, or the arts will substantially benefit the national economy, cultural interests, or welfare of the United States. ..... (6) Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 1151(a)(1) or (2) of this title, to qualified immigrants who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonable nature, for which a shortage of employable and willing persons exists in the United States. ..... (8) Visas authorized in any fiscal year, less those required for issuance to the classes specified in paragraphs (1) through (6) and less the number of conditional entries and visas made available pursuant to paragraph (7), shall be made available to other qualified immigrants strictly in the chronological order in which they qualify. Waiting lists of applicants shall be maintained in accordance with regulations prescribed by the Secretary of State. No immigrant visa shall be issued to a nonpreference immigrant under this paragraph, or to an immigrant with a preference under paragraph (3) or (6) of this subsection, until the consular officer is in receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 1182(a)(14) of this title [*INA § 212(a)(14)]. [Emphasis added.] *Former INA § 212(a)(14) was later transformed into today’s INA § 212(a)(5) and then as now dealt with labor certifications.Former INA § 212(a) [8 USC § 1182(a)] (1965) provided in pertinent part: "Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission in the United States;.... (14) Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skill or unskilled 2
  3. 3. labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed." [Emphasis added.]INS Created the Immigrant Investor ClassificationThe “investor visa” was created originally in 1966, by INS through regulation utilizingthe Attorney General’s broad authority under INA § 103 [8 USC § 1103] by construingand interpreting INA § 203 [8 USC § 1153] (a)(8)’s “other qualified immigrants” whocould demonstrate that they did not require a labor certification from the Secretary ofLabor. It was not termed as a visa classification but rather as a “labor certificationexemption”. It seems that everybody needed some guidance on who the phrase “otherqualified immigrants” actually applied to. Who exactly were these “other qualifiedimmigrants” that did not need a labor certification?These visas were allocated under INA § 203 (a)(8) but issued as a “special immigrant”class found in INA § 101(a)(27) [8 USC § 1101 (a)(27)]. The Immigration andNationality Act Amendments of 1965 (Public Law 89-236, Sec. 8 (a)) renamed nonquotaimmigrants as special immigrants in INA § 101(a)(27). These special immigrants wereeligible for visas and investors were among these immigrants but defined in theregulation, not the statute.The original version of 8 CFR § 212.8 stated, in pertinent part: (b) Aliens not required to obtain labor certifications. The following members are not considered to be within the purview of section 212(a)(14) of the Act and do not require a labor certification: ....... (4) an alien who will engage in a commercial or agricultural enterprise in which he had invested or is actively in the process of investing a substantial amount of capital. [31 FR 10021, July 23, 1966; 31 FR 10355, Aug. 22, 1966, as amended at 34 FR 5326, Mar. 18, 1969][A modified version of this extraneous regulation is still in 8 CFR.]Suggested Specific Form ChangesPart 2 currently includes options for the alien to indicate if their investment will be in:a) a TEA where the investment amount has been adjusted downward;b) a high employment area where the investment amount has been adjusted upward; orc) an area that is neither a TEA nor adjusted upward. 3
  4. 4. USCIS and INS before it never implemented the upward adjustment as allowed by thestatute. USCIS should either actually write a regulation for upward adjustment or makeno mention of it on the form. It does not seem realistic that anyone would ever actuallymake an investment in an upward adjustment area so it would be easier to dump theconcept from the form. I suggest that Part 2 of the form be changed to allow investors toindicate more meaningful information. I suggest that the part be broken down into twosubparts or two separate parts, whatever. For instance:Type of Investment:a) Regional Center affiliated investment;b) Stand-Alone Investment; orc) Member of a Non-Regional Center-Affiliated Investor Group.Investment Amount:a) Standard Investment Amount ($1,000,000.00);b) Downward Adjusted Investment Amount Within a targeted Employment Area: i) Rural Area; ii) High Unemployment Area (150% or more of national average).In Part 3 of the Form I-526, the last item asks the investor to identify the area by countyand state if an upward or downward adjustment was indicated in Part 2. This informationcollection can be eliminated from this part and collected in a more meaningful wayelsewhere.I suggest that Part 3 start by asking for Regional Center affiliation information, if any.Currently the form asks the investor to identify all “natural” and “non-natural” partieswho are investors involved in the commercial enterprise and to list on separate paper allnames etc... This information can be more easily tracked by identifying the RegionalCenter and specific RC project. In the rare situations where a non-RC group is formed,this information should be requested via the accompanying business plan and/orassociated partnership documentation as specified in the form instructions. The forminstructions are a whole other matter that USCIS already has under review and I willwait to see what is put forth in the near future before commenting on them.I believe that the more crucial matter involved in the I-526 petition is the individualinvestor’s financial documentation as to source and path of lawful funds. The vastmajority of I-526s are Regional Center affiliated (~95%) and the Regional Center should 4
  5. 5. be providing information as to the non-EB-5 funds in a single submission as asupplement to the entire project in support of ALL the EB-5 alien investors involved insuch a project.RC sponsors charge their EB-5 investors hefty fees to coordinate such matters. RC’scharge anywhere from $20,000.00 to $80,000.00+ each in “management fees” orsubscriptions fees” or whatever they happen to call it. USCIS licenses Regional Centerswhen it Designates them and has a responsibility and right to oversee and ensure that theRC sponsors hold up their end of the bargain on such matters and not cheat their B-5alien investors. Bulk submission of shared evidence specific to a RC Project would beeasier for ALL parties: the RC, the alien investors, and USCIS.Although I first bring this issue up in discussing the RC affiliated non-EB-5 investors’financial documentation (such as audited reports), it readily applies to the ProjectSpecific Business Plan and the associated Economic Analysis. Why on God’s green earthwould USCIS want 20 to 300 copies of documentation the size of a Los Angeles or NYCtelephone book? Why should EACH RC-affiliated I-526 need a full copy of the shareddocumentation? That makes NO SENSE.Part 4 of the I-526 asks the investor to identify the type of enterprise. This part shouldoffer more meaningful options such as:a) a brand new business,b) a troubled business in which existing jobs will be preserved,c) a troubled business in which existing jobs will be preserved AND new jobs will beadded,d) an existing business expansion to at least 140%, ore) a significant and/or total restructuring of an existing business such that the end resultwill be a new business.Thank you for the opportunity to contribute and voice my opinions.Joseph P. WhalenAugust 12, 2011 5

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