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How Will the USCIS Regional Center         Decision Board Conduct Hearings?                           By Joseph P. Whalen ...
On the flipside, when the Regional Center hopeful does have the appropriate“kinds of commercial enterprises” in mind or li...
The I-905, Application for Authorization to Issue Certification for Health CareWorkers, has been described by AAO as “seek...
needed for the facilitation of the specifically desired “kinds of commercial      enterprises that will receive capital fr...
NAICS codes. The 2012 NAICS Codes structure encompasses well over two-thousand industry categories. There are too many pot...
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How will the USCIS Regional Center Decision Board conduct hearings

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How will the USCIS Regional Center Decision Board conduct hearings

  1. 1. How Will the USCIS Regional Center Decision Board Conduct Hearings? By Joseph P. Whalen (September 25, 2012)In answer to the question stated as the title of this essay, I have no idea, but I amwilling to make suggestions about this subject matter. What did you expect?EOIR has several bodies that conduct hearings. The Immigration Judges in theImmigration Courts conduct hearings as a matter of routine. The BIA rarely holdshearings in the same modus operandi as USCIS’ AAO and the Circuit Courts ofAppeals. The vast majority of appellate reviews are paper-based, facelessadjudications. The IJ’s routine hearings in the Removal Proceedings context isvery adversarial in nature. I find the majority of their procedures inapplicable tothe anticipated RC Decision Board Proceedings. And that’s another thing, shouldwe call these “Interviews” as was indicated in the May 18, 2011, Proposal forComment or perhaps: “Proceedings” “Hearings” “Oral Arguments” “Presentations”“Conferences” or something else? Please, think about it. The nature of the beast isto get viable Regional Centers up and running while weeding out those who areseen as likely to be poor performers. I suppose that “Interviews” would suffice ifsomeone at USCIS has their heart set on it. IF they do, THEN my suggestionsabout addressing the Applicant’s KSAs would seem to fit in nicely. InfraHere is an excerpt from United States v. Santiago’s Repacking, Inc., 10 OCAHOno. 1153, 7 (2012) that might be useful, at least for the Circuit Court citation if notthe sentiment expressed. I happen to agree with the sentiment expressed that ifthere are no genuine issues of material fact that need a face-to-face “Interview” itwould be a huge waste of resources. I know from personal experience that there aremany business opportunities where the developer/promoter is eager to get anincentive such as Regional Center Designation to draw in a pool of eager investorswho are legally required to invest a minimum of either $500,000 or $1,000,000each. The problem is that few of those projects are suitable for EB-5 purposes.That said, if that project and the typical “kinds of commercial enterprises” that theapplicant seeks approval to present to EB-5 immigrant investors are not EB-5compliant or “worthy” of consideration, no amount of face time will fix it. Hearings are not ordinarily conducted in the absence of a genuine issue of material fact, 28 C.F.R. § 68.38(e), because parties should not be put to the burden and expense of a hearing unless it is shown that there are genuine issues of material fact to be determined. Agencies routinely decline to hold hearings where there is no factual dispute of substance. Veg-Mix, Inc. v. Dep’t of Agriculture, 832 F.2d 601, 607-08 (D.C. Cir. 1987).General EB-5-Related Suggestion on I-924 Decision Board Procedures Page 1
  2. 2. On the flipside, when the Regional Center hopeful does have the appropriate“kinds of commercial enterprises” in mind or lined up, a face-to-face encountermay be very desirable for USCIS for several reasons. The first and foremost shouldbe to ensure that the Regional Center possesses the required knowledge, skills, andabilities (KSAs, supra) to pull it off! Notice that I stated “the Regional Centerpossesses” instead of the “applicant” or “principal” or “sponsor” or “promoter” or“developer”. If one person alone attempts to be and do everything required of the“Regional Center”, that is a recipe for disaster.As we have developed our collective understanding of what is actually demandedby the law concerning ensuring continuing compliance by the Regional Center inthe hopes of gaining longevity for more participants in this fledgling industry, it isbecoming much clearer how complex it really is. No Regional Center can be a one-person operation. Something will be overlooked or might come out of nowhere,blindside everybody, and cause a huge mess. In addition, a slightly larger core orcadre of interested (and hopefully vested) individuals will not only look out foreach other but will also guard him or herself against the rest. Is it not simplehuman nature to expect these individuals, like the rest of the human race, to “lookout for number one” most of the time? Getting back to KSAs, what the heck does that entail anyway?Regional Centers and their EB-5 investors need additional clarifications as to thebroad concept of “Knowledge, Skills, and Abilities” (KSAs). Any RegionalCenter Applicant has to make a sufficient showing that demonstrates the requiredKSAs for the scope of operation requested in the RC proposal in order to pass their“audition” through surviving the rigorous vetting involved in this particularadjudication process. On the flipside, USCIS will have been satisfied that theApplicant has the required KSAs and wherewithal to get the job done.In the course of my intensive study and research into EB-5 laws and history, Ifound that the closest comparable adjudication to the USCIS Form I-924performed by the agency is the adjudication of Form I-905. The nature of thatadjudication is a helpful guide for certain, general, but very practical concepts. Ifound it very informative, helpful, and enlightening to compare the IndependentCredentialing Organizations For Immigrant Healthcare Workers to EB-5 RegionalCenters For Immigrant Investors and/or Entrepreneurs. Each entity is seekingauthorization, designation, or in the best expression of purpose, “licensure” fromUSCIS to market specific products and services to aliens in order to facilitate andenable them in their individual quests (petitions and applications) for visas.General EB-5-Related Suggestion on I-924 Decision Board Procedures Page 2
  3. 3. The I-905, Application for Authorization to Issue Certification for Health CareWorkers, has been described by AAO as “seeking licensure to certify”.... “medicalpositions” and/or “medical professionals”. AAO has made it clear that theapplicant for that license needs to “demonstrate that its evaluators are competent tocertify the educational credentials of those medical professionals seeking suchcertifications”. They have gone on to state that “the Form I-905 requests that theapplicant "Explain [its] expertise, knowledge, and experience in the health careoccupations for which [it seeks] authorization."” See link infra.I feel that the I-924, Application For Regional Center Under the ImmigrantInvestor Pilot Program could be improved by looking to the form I-905 and theAAO Administrative decision posted as Nov092006_01M4212.pdf in which itfound that the applicant for approval as an “Independent CredentialingOrganization” provided insufficient information as to its knowledge, skills, andabilities (KSAs) required for the task. AAO summed up that “[t]he applicant didnot otherwise explain its expertise, knowledge, and experience pertinent to healthcare occupations.”I would rather just make the general suggestion that USCIS closely examine theseclosely related “licensing applications” and compare the underlying fundamentalsinvolved but I won’t leave it at that. When I have done so in the past, USCIS hasconveniently stated something along the lines of “the commenter made no specificsuggestions therefore no changes will be made based on this comment”. Well, Iwant USCIS to make some specific changes to the I-924 Form and Instructions, soI will make some very specific suggestions as follows:Under the heading: “What is the Purpose of this Form?” item #1 should beexpanded upon by adding more precise language as to the required KSAs. As anexample, I offer the following: “... A critical component of this request entails demonstrating that the applicant entity possesses the necessary knowledge, skills, and abilities (KSAs) to successfully operate the Regional Center in conformance with its legally mandated purposes. As per 8 CFR § 204.6(m)(6) “...a regional center must provide USCIS with updated information to demonstrate the regional center is continuing to promote economic growth, improved regional productivity, job creation, or increased domestic capital investment in the approved geographic area.” Therefore, the entity must present evidence that it understands its role and has the required expertise to perform its underlying functions. The preceding is in addition to the specific KSAsGeneral EB-5-Related Suggestion on I-924 Decision Board Procedures Page 3
  4. 4. needed for the facilitation of the specifically desired “kinds of commercial enterprises that will receive capital from aliens” as represented by the chosen NACIS codes, in which it seeks licensure to assist EB-5 investors establish and/or invest.”As stated, the above is merely a suggestion to work from. Naturally, somecorresponding changes under the heading “Initial Evidence Requirements”would need to be made also. By way of an example, in that I-905 AAO non-precedential Administrative Decision linked above, AAO remarked on the similartopic in that context in footnote 2, as follows: “The standards described in the instructions sheet include all of the standards listed in at 8 C.F.R. § 212.15(k)(l) - (8), set out above.”The I-905 Applicants have more guidance and so do the USCIS Adjudicators whodecide those requests. Congress was more specific and the regulations are moredeveloped. INS had considerable help from two other Departments, Education andHealth and Human Services. With EB-5, INS (now USCIS) led State. Not good.The I-924 Applicant needs to be told their role and obligations to their EB-5investor partners as well as how to properly plan to fulfill that role. The RegionalCenter seeks licensure to provide specific services to aliens in their individualrequests for immigrant visas and to later have conditions lifted from status. TheRegional Center has responsibilities and obligations towards its various investmentpartners. USCIS needs to be much more concerned with the Regional Center’sunderstanding of its specific obligations to its EB-5 investor partners/clients.Regional Centers charge hefty fees to its EB-5 investors. I say, make them justifyearning those fees!USCIS needs to closely examine the role of the Regional Centers and producepractical expectations of the services it needs to provide. Once that is sorted out,USCIS must discern basic KSAs for the Regional Centers to demonstrate and havesome baseline suggestions and parameters spelled out. I would caution againstbeing too rigid. By way of an example to avoid, do not copy the “evidencepossibilities” embodied in the extraordinary ability or exceptional abilityimmigrant visa categories. Those were based in statute. The requirements forRegional Centers are much more loosely defined in the statute and the regulationsneed to be quite open-ended. That said, very broad possibilities, loosely defined arethe way to go with this. Numerous non-committal and wishy-washy possibilitiesare best. I say this because of the huge number of possibilities available under theGeneral EB-5-Related Suggestion on I-924 Decision Board Procedures Page 4
  5. 5. NAICS codes. The 2012 NAICS Codes structure encompasses well over two-thousand industry categories. There are too many potential means to satisfy theKSAs for the Regional Center applicants to be overly specific. I would stick withmaking the applicant define its own parameters and showing by comparison to thestandards accepted in that industry (or those industries) what is needed for the taskat hand. I would not make it as rigid as the Permanent Labor Cert process but thatcould serve as a basic frame of reference. I’d tell them to “Define your needs andthen show us that you have what it takes.” Perhaps OOH or something similarcan help them figure it out. Resumes, educational credentials, job descriptions,one’s curriculum vitae, lists of publications: books, blogs, or articles and thingsalong those various lines should suffice as evidence for individuals. Establishedentities might have more and different items to offer such as: annual reports,balance sheets, the ubiquitous tax returns and associated IRS “schedules” and/orSEC filings—EDGAR printouts might be available. Many possibilities exist inover two-thousand industry categories as defined in NAICS.Thanks you for considering this issue. Of course, if you didn’t then nobody atUSCIS read this and that would be a darn shame!General EB-5-Related Suggestion on I-924 Decision Board Procedures Page 5

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