Defending the tenant occupancy methodology & USCIS scrutiny of it


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added footnote:
1 The “notwithstanding .... 8 CFR 204.6” language came along in the original statute in 1992 and the “verifiable detail” language did not yet exist! The Pilot Program and Regional Center were in response to the original 8 CFR 204.6 promulgated in 56 FR 60897-60913 (11/29/1991).

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Defending the tenant occupancy methodology & USCIS scrutiny of it

  1. 1. Defending the Tenant Occupancy Methodology & USCIS Scrutiny of It By Joseph P. Whalen (April 30, 2012)I have been seeing some folks blogging and complaining about USCIS’ “NEW”opposition to the Tenant Occupancy methodology, and accusing USCIS of making“drastic and unprecedented illegal changes”. I say BULLCRAP to that argument. I willnow explain my position.The greatly debated and detested “reasonable methodologies” have been required sincethe original statute was enacted as Pub. L. 102–395, title VI, § 610, Oct. 6, 1992, 106Stat. 1874. It is true § 610(a) was later amended by a Congress but folks have not trackedthe changes sufficiently. The welcomed change came via § 11037 of Pub. L. 107-273,116 Stat. 1758, “21st Century Department of Justice Appropriations Authorization Act”,enacted November 2, 2002, which amended 8 U.S.C. § 1153 note as follows: A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic 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 receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have. (Emphasis added.)Those “general predictions” must still be based on “reasonable methodologies”because that particular requirement to establish “reasonable methodologies” precededthe “general predictions” language without altering said earlier requirement. So the“verifiable details” demanded by the regulations (as published before Public Law 107-273 was enacted 1) were based on the pre-existing statutory language from the originalstatute which Congress did not repeal or alter as to that original requirement for“reasonable methodologies”. Congress intended that the general proposals containing“general predictions” would be based on “reasonable methodologies”.Therefore, “verifiable detail” as to the job creation issue always has been and remainsbased on the actual evidence presented, and determined on a case-by-case basis forreasonableness which is based on the explanations as to a sufficient nexus. The desired“cookie cutter” for EB-5 can never become the reality so desired by the folks whoadvocate for it.1 The “notwithstanding .... 8 CFR 204.6” language came along in the original statute in 1992 andthe “verifiable detail” language did not yet exist! The Pilot Program and Regional Center were inresponse to the original 8 CFR 204.6 promulgated in 56 FR 60897-60913 (11/29/1991). Page 1 of 3
  2. 2. I do not advocate for the creation of an easy cookie cutter approach to EB-5 and RegionalCenters. Additionally, I view templates as very base documents that should merelyprovide a simple verbatim recitation of the statutory and regulatory language brokendown point-by-point and explained in plain language in order to facilitate construction ofa viable proposal.When Congress created the Regional Center, I believe that the Members intended to adda new player within their local Regional Economic Infrastructures in order to serve theirconstituencies’ best interests by creating jobs. The role of the Regional Center has beensomewhat clarified over the years but it is still a difficult nut to crack. The time has cometo shift focus into the meaning of and the true purpose of the “Employment CreationImmigrant Visa Pilot Program” of which the Regional Center is only one part. This is amuch broader context that remains to be explored and defined. In order to betterunderstand the role of the Regional Center, the overall concept and context of the“Employment Creation Immigrant Visa Pilot Program” must be more closely and verydeeply examined. That topic is beyond the scope of this essay. I have written about itbefore and am not ready to reiterate or refine previously stated assertions andinterpretations as to the extent of the “Employment Creation Immigrant Visa PilotProgram”. I will save those arguments for another day when enough folks have caughtup on the meaning and role of that underlying context and its nuances. Here is theoriginal statute that created the Pilot Program and its Regional Centers. Please read it, andthen follow the changes since 1992, in chronological order and match up the statutoryevolution to the corresponding regulatory evolution. Happy [paper] trails!8 U.S.C. United States Code, 1994 EditionTitle 8 - ALIENS AND NATIONALITYCHAPTER 11 - NATIONALITYSUBCHAPTER II_2 - SUBCHAPTER II-IMMIGRATIONPart I - Selection SystemSec. 1153 - Allocation of immigrant visasFrom the U.S. Government Printing Office,§1153. Allocation of immigrant visas * * * * * Pilot Immigration ProgramPub. L. 102–395, title VI, §610, Oct. 6, 1992, 106 Stat. 1874, provided that:“(a) Of the visas otherwise available under section 203(b)(5) of the Immigration andNationality Act (8 U.S.C. 1153(b)(5)), the Secretary of State, together with the AttorneyGeneral, shall set aside visas for a pilot program to implement the provisions of such Page 2 of 3
  3. 3. section. Such pilot program shall involve a regional center in the United States for thepromotion of economic growth, including increased export sales, improved regionalproductivity, job creation, and increased domestic capital investment.“(b) For purposes of the pilot program established in subsection (a), beginning onOctober 1, 1992, but no later than October 1, 1993, the Secretary of State, together withthe Attorney General, shall set aside 300 visas annually for five years to include suchaliens as are eligible for admission under section 203(b)(5) of the Immigration andNationality Act [8 U.S.C. 1153(b)(5)] and this section, as well as spouses or childrenwhich are eligible, under the terms of the Immigration and Nationality Act [8 U.S.C.1101 et seq.], to accompany or follow to join such aliens.“(c) In determining compliance with section 203(b)(5)(A)(iii) of the Immigrationand Nationality Act [8 U.S.C. 1153(b)(5)(A)(iii)], and notwithstanding the requirementsof 8 CFR 204.6, the Attorney General shall permit aliens admitted under the pilotprogram described in this section to establish reasonable methodologies fordetermining the number of jobs created by the pilot program, including such jobswhich are estimated to have been created indirectly through revenues generated fromincreased exports resulting from the pilot program.” Page 3 of 3