I 924 regulation update discussion


Published on

8 CFR relating to the adjudication of the USCIS form I-924 needs updating.

Published in: Investor Relations
1 Like
  • Be the first to comment

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

I 924 regulation update discussion

  1. 1. The pre-existing implementing regulations for the new USCIS Form I-924 are an outdatedformulation from a now defunct Law Enforcement Agency [Legacy INS] and are not attunedto the Customer-Service oriented USCIS mode of operations. They need to be revised. Certainsister regulations have direct interplay with the object of the I-924, i.e. the “USCIS DesignatedRegional Center under the Immigrant Investor Pilot Program.” The regulations used toadjudicate the associated forms I-526 and I-829 have a direct connection. Certain otherunrelated regulations may serve as a guide to aspects of the adjudication of the attainment ofthe Regional Center Designation. Compare and contrast the following in re-writing them.CODE OF FEDERAL REGULATIONSTitle 8: Aliens and NationalityCHAPTER I--DEPARTMENT OF HOMELAND SECURITYSome of these concepts that apply to an N-400 also apply to an I-924, some don’t.SUBCHAPTER C--NATIONALITY REGULATIONSPART 334—APPLICATION FOR NATURALIZATION8 CFR § 334.2 Application for naturalization. (b) An application for naturalization may be filed up to 90 days prior to the completion of therequired period of residence, which may include the three-month period of residence required toestablish jurisdiction under section 316(a) or 319(a) of the Act. ―The regulation at 8 C.F.R. § 204.6(j) notes that additional evidence other than that specified in the regulations may be required. Clearly, only an entity that exists can be designated as a regional center. Thus, it is reasonable to require evidence of the proposed regional center [applicant]s existence.‖ 1Similar to an N-400, Application for Naturalization, only certain prerequisites need bedemonstrated in order to file, while other eligibility factors are subject to completion ormodification after filing. For example, if the “I-924 applicant” is a variety of partnership(LLP or LLC), Company (Co.) or Corporation (Inc. or Corp.), then such entity must actuallyexist by having properly applied for and received such designation in accordance withgoverning laws and regulations in order to file an I-924 application as such entity. This singleprerequisite should be a bare minimum to be met at time of filing with no early filing for thatrequirement, but pretty much anything beyond that is open to modification or eligible to comeinto existence after filing an I-924.1 From a non-precedent AAO Decision at: http://www.uscis.gov/err/K1%20-%20Request%20for%20Participation%20as%20Regional%20Center/Decisions_Issued_in_2008/Nov182008_01K1610.pdf at page 5.
  2. 2. In the naturalization regulations, provisions are specifically included to allow for theamendment of an application. The regulations are broken down in terms of type ofamendment, either clerical or substantive and in terms of who may initiate the amendment.8 CFR § 334.16 Amendment of petition for naturalization.(a) During pendency of petition. An application to amend a petition for naturalization, filed priorto October 1, 1991, while such petition is pending, shall be made by the petitioner on Form N–410, with copies thereof equal to the number of copies of the petition for naturalization, andpresented to the court at the hearing on the petition for naturalization. The application shall beaccompanied by the fee specified in §103.7(b)(1) of this chapter, unless it was initiated by, andfor the convenience of, the government. When the court orders the petition amended, the originalorder shall be filed with the original petition and the copies attached to the respective copies ofthe petition.(b) After final action on petition. Whenever an application is made to the court to amend apetition for naturalization after final action thereon has been taken by the court, a copy of theapplication shall be served upon the district director having administrative jurisdiction over theterritory in which the court is located, in the manner and within the time provided by the rules ofcourt in which application is made. No objection shall be made to the amendment of a petitionfor naturalization after the petitioner for naturalization has been admitted to citizenship if themotion or application is to correct a clerical error arising from oversight or omission. Arepresentative of the Service may appear at the hearing upon such application and be heard infavor of or in opposition thereto. When the court orders the petition amended, the clerk of courtshall transmit a copy of the order to the district director for inclusion in the Service file.8 CFR § 334.5 Amendment of application for naturalization; reopening proceedings.(a) Clerical amendments —(1) By applicant. An applicant may request that the application for naturalization be amendedeither prior to or subsequent to the administration of the oath of allegiance.(2) By Service. The Service may amend, at any time, an application for naturalization when inreceipt of information that clearly indicates that a clerical error has occurred.(3) Amendment procedure. Any amendment will be limited to the correction of clerical errorsarising from oversight or omission. If the amendment is approved, the amended application shallbe filed with the original application for naturalization.(b) Substantive amendments. Any substantive amendments which affect the jurisdiction or thedecision on the merits of the application will not be authorized. When the Service is in receipt ofany information that would indicate that an application for naturalization should not have beengranted on the merits, the Service may institute proceedings to reopen the application beforeadmission to citizenship, or to revoke the naturalization of a person who has been admitted tocitizenship, in accordance with section 340 of the Act and §335.5 of this chapter.
  3. 3. The following list enumerates the various aspects that are considered in the N-400examination. Although there is no interview required for a Regional Center Application, thepaper-based adjudication does tend to embrace many of the same themes.PART 335--EXAMINATION ON APPLICATION FOR NATURALIZATION§335.1 Investigation of applicant.§335.2 Examination of applicant. Determination on application; continuance of§335.3 examination.§335.4 Use of record of examination.§335.5 Receipt of derogatory information after grant.§335.6 Failure to appear for examination. Failure to prosecute application after initial§335.7 examination.§335.8 [Reserved]§335.9 Transfer of application.§335.10 Withdrawal of application. Preliminary examinations on petitions for§335.11 naturalization filed prior to October 1, 1991. Recommendations on petitions for naturalization of§335.12 the designated examiner and regional administrator; notice. Notice of recommendation on petitions for§335.13 naturalization of designated examiner.The Immigrant Investor Pilot Program in which the Regional Centers reside finds its origin in§ 610 of the Departments of Commerce, Justice and State, the Judiciary, and Related AgenciesAppropriations Act of 1993, as amended by section 402 of the Visa Waiver PermanentProgram Act of 2000, etc…In § 610, paragraph (a) is the statutory source of the undefined “pilot program” and “regionalcenter” while (c) is the source of the inclusion of “indirect jobs” as determined by “reasonablemethodologies”. The statute directs the Attorney General [subsequently replaced by theSecretary of Homeland Security] to “implement the provisions” [which translates to: writeimplementing regulations] which was initially delegated to INS [subsequently replaced byUSCIS].
  4. 4. Congress did not provide much raw material to work with so the “immigrant investor pilotprogram” and the requirements for designation as a “regional center” under that program arelargely regulatory in nature as the regulations were pretty much a blank canvass to be creativewith. USCIS should take full advantage of that situation to craft workable regulations.The Form I-924 is eligible for an administrative appeal process via 8 CFR § 103.3(a) asdirected in 8 CFR § 204.6(m)(5). As with virtually anything else, the I-924 is also subject toMotions to Reopen or Motions to Reconsider via 8 CFR § 103.5(a). These motion regulations,like the 8 CFR §§ 334.5 and 334.16, are also broken down in terms of who may file: theapplicant or the Government. The N-400 has its peculiar “Second Hearing” and subsequent“judicial review” pathway based on specific statutory provisions. In that the ImmigrantInvestor Pilot Program is primarily regulatory in nature, unique regulations on this aspectwould be welcome, especially considering the unique nature of the program overall.Incorporating similar language in 8 CFR 204.6(m)(?)(?) such as: “Based upon thecomplexity of the issues to be reviewed or determined, and upon the necessity of conductingfurther deliberation with respect to essential requirements, the reviewing ImmigrationServices Officer may, in his or her discretion, conduct a full de novo review or may utilizean ad hoc review procedure, as he or she deems reasonable and in the interest of justice.”The preceding language is based largely on the last sentence in 8 CFR § 336.2(b).8 CFR § 336.2 Hearing before an immigration officer.(a) The applicant, or his or her authorized representative, may request a hearing on the denial ofthe applicants application for naturalization by filing a request with the Service within thirtydays after the applicant receives the notice of denial under §336.1.(b) Upon receipt of a timely request for a hearing, the Service shall schedule a review hearingbefore an immigration officer, within a reasonable period of time not to exceed 180 days fromthe date upon which the appeal is filed. The review shall be with an officer other than the officerwho conducted the original examination under section 335 of the Act or who rendered theService determination upon which the hearing is based, and who is classified at a grade levelequal to or higher than the grade of the examining officer. The reviewing officer shall have theauthority and discretion to review the application for naturalization, to examine the applicant,and either to affirm the findings and determination of the original examining officer or toredetermine the original decision of the Service in whole or in part. The reviewing officer shallalso have the discretion to review any administrative record which was created as part of theexamination procedures as well as Service files and reports. He or she may receive new evidenceor take such additional testimony as may be deemed relevant to the applicants eligibility fornaturalization or which the applicant seeks to provide. Based upon the complexity of the issuesto be reviewed or determined, and upon the necessity of conducting further examinationswith respect to essential naturalization requirements, such as literacy or civics knowledge, thereviewing immigration officer may, in his or her discretion, conduct a full de novo hearing ormay utilize a less formal review procedure, as he or she deems reasonable and in theinterest of justice.
  5. 5. Some of the concepts that apply to an I-129 also apply to an I-924, some don’t.8 CFR § 214.2 Special requirements for admission, extension, and maintenance of status.The general requirements in §214.1 are modified for the following nonimmigrant classes:(h) Temporary employees —(2) Petitions —(i) Filing of petitions —(E) Amended or new petition. The petitioner shall file an amended or new petition, with fee,with the Service Center where the original petition was filed to reflect any material changes inthe terms and conditions of employment or training or the aliens eligibility as specified in theoriginal approved petition. An amended or new H–1C, H–1B, H–2A, or H–2B petition must beaccompanied by a current or new Department of Labor determination. In the case of an H–1Bpetition, this requirement includes a new labor condition application.Some requirement that apply to an I-526 have an effect upon to an I-924, some don’t.8 CFR § 204.6 Petitions for employment creation aliens.(a) General. A petition to classify an alien under section 203(b)(5) of the Act must be filed onForm I–526, Immigrant Petition by Alien Entrepreneur. The petition must be accompanied bythe appropriate fee. Before a petition is considered properly filed, the petition must be signed bythe petitioner, and the initial supporting documentation required by this section must be attached.Legible photocopies of supporting documents will ordinarily be acceptable for initial filing andapproval. However, at the discretion of the director, original documents may be required.(b) [Reserved][(b) and (c) could be exchanged.] [The re-filling procedures to be followed inorder to obtain a new priority date for use in obtaining an EB-5 Immigrant Visa or originaladjustment (of an I-485 is yet to be filed or still pending)or as a prelude to re-adjustment, withan I-407 and new or second I-485, could be set out here. Those procedures are already knownbut not yet codified.]See: The December 11, 2009, Policy Memo entitled:Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and Form I-829Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38)Paragraph structure of a CFR section may extend to six sub-levels, so, there is room to grow.level 1 (a), (b), (c), etc.level 2 (1), (2), (3), etc.level 3 (i), (ii), (iii), etc.level 4 (A), (B), (C), etc.level 5 (1), (2), (3), etc.level 6 (i), (ii), (iii), etc.
  6. 6. (c) Eligibility to file. A petition for classification as an alien entrepreneur may only be filed byany alien on his or her own behalf.(d) Priority date. The priority date of a petition for classification as an alien entrepreneur is thedate the petition is properly filed with the Service or, if filed prior to the effective date of theseregulations, the date the Form I–526 was received at the appropriate Service Center.*****(j) Initial evidence to accompany petition. [A Regional Center should be equipped to help theirinvestors achieve success at the I-526 stage and be aided in that effort by USCIS in the I-924adjudication by the USCIS vetting of: business plans, analyses, methodologies, financialarrangements, due diligence of funds, and standard investment documentation.]A petition submitted for classification as an alien entrepreneur must be accompanied byevidence that the alienhas invested or is actively in the process of investinglawfully obtained capital in anew commercial enterprise in the United States whichwill create full-time positions for not fewer than 10 qualifying employees. [Business Plan?]*****IT APPEARS THAT THIS OLD REGULATION DOES NOT REQUIRE A BUSINESSPLAN, per se, BY A REGIONAL CENTER INVESTOR, looks can be deceiving, WAS ITPRESUMMED THAT THE BUSINESS PLAN WOULD HAVE BEEN SUBMITTED BY THEREGIONAL CENTER AND VETTED BY USCIS, independently of the I-526 petition?*****In the case of petitions submitted under the Immigrant Investor Pilot Program, a petitionmust be accompanied byevidence that the alien has invested, or is actively in the process of investing,capitalobtained through lawful meanswithin a regional center designated by the Service in accordance with paragraph (m)(4) of thissection.The petitioner may be required to submit information or documentation that the Servicedeems appropriate in addition to that listed below.
  7. 7. (1) To show that a new commercial enterprise has been established by the petitioner in theUnited States, the petition must be accompanied by:(i) As applicable, articles of incorporation, certificate of merger or consolidation, partnershipagreement, certificate of limited partnership, joint venture agreement, business trust agreement,or other similar organizational document for the new commercial enterprise;(ii) A certificate evidencing authority to do business in a state or municipality or, if the form ofthe business does not require any such certificate or the State or municipality does not issue sucha certificate, a statement to that effect; or(iii) Evidence that, as of a date certain after November 29, 1990, the required amount of capitalfor the area in which an enterprise is located has been transferred to an existing business, and thatthe investment has resulted in a substantial increase in the net worth or number of employees ofthe business to which the capital was transferred. This evidence must be in the form of stockpurchase agreements, investment agreements, certified financial reports, payroll records, or anysimilar instruments, agreements, or documents evidencing the investment in the commercialenterprise and the resulting substantial change in the net worth, number of employees.(2) To show that the petitioner has invested or is actively in the process of investing the requiredamount of capital, the petition must be accompanied by evidence that the petitioner has placedthe required amount of capital at risk for the purpose of generating a return on the capital placedat risk. Evidence of mere intent to invest, or of prospective investment arrangements entailing nopresent commitment, will not suffice to show that the petitioner is actively in the process ofinvesting. The alien must show actual commitment of the required amount of capital. Suchevidence may include, but need not be limited to:(i) Bank statement(s) showing amount(s) deposited in United States business account(s) for theenterprise;(ii) Evidence of assets which have been purchased for use in the United States enterprise,including invoices, sales receipts, and purchase contracts containing sufficient information toidentify such assets, their purchase costs, date of purchase, and purchasing entity;(iii) Evidence of property transferred from abroad for use in the United States enterprise,including United States Customs Service commercial entry documents, bills of lading, and transitinsurance policies containing ownership information and sufficient information to identify theproperty and to indicate the fair market value of such property;(iv) Evidence of monies transferred or committed to be transferred to the new commercialenterprise in exchange for shares of stock (voting or nonvoting, common or preferred). Suchstock may not include terms requiring the new commercial enterprise to redeem it at the holdersrequest; or
  8. 8. (v) Evidence of any loan or mortgage agreement, promissory note, security agreement, or otherevidence of borrowing which is secured by assets of the petitioner, other than those of the newcommercial enterprise, and for which the petitioner is personally and primarily liable.(3) To show that the petitioner has invested, or is actively in the process of investing, capitalobtained through lawful means, the petition must be accompanied, as applicable, by:(i) Foreign business registration records;(ii) Corporate, partnership (or any other entity in any form which has filed in any country orsubdivision thereof any return described in this subpart), and personal tax returns includingincome, franchise, property (whether real, personal, or intangible), or any other tax returns of anykind filed within five years, with any taxing jurisdiction in or outside the United States by or onbehalf of the petitioner;(iii) Evidence identifying any other source(s) of capital; or(iv) Certified copies of any judgments or evidence of all pending governmental civil or criminalactions, governmental administrative proceedings, and any private civil actions (pending orotherwise) involving monetary judgments against the petitioner from any court in or outside theUnited States within the past fifteen years.(4) Job creation —(i) General. To show that a new commercial enterprise will create not fewerthan ten (10) full-time positions for qualifying employees, the petition must be accompanied by:(A) Documentation consisting of photocopies of relevant tax records, Form I–9, or other similardocuments for ten (10) qualifying employees, if such employees have already been hiredfollowing the establishment of the new commercial enterprise; or(B) A copy of a comprehensive business plan showing that, due to the nature and projectedsize of the new commercial enterprise, the need for not fewer than ten (10) qualifyingemployees will result, including approximate dates, within the next two years, and whensuch employees will be hired.(ii) Troubled business. To show that a new commercial enterprise which has been establishedthrough a capital investment in a troubled business meets the statutory employment creationrequirement, the petition must be accompanied by evidence that the number of existingemployees is being or will be maintained at no less than the pre-investment level for a period ofat least two years. Photocopies of tax records, Forms I–9, or other relevant documents for thequalifying employees and a comprehensive business plan shall be submitted in support of thepetition.(iii) Immigrant Investor Pilot Program. To show that the new commercial enterprise locatedwithin a regional center approved for participation in the Immigrant Investor Pilot Programmeets the statutory employment creation requirement, the petition must be accompanied byevidence that the investment will create full-time positions for not fewer than 10 persons either
  9. 9. directly or indirectly through revenues generated from increased exports resulting from the PilotProgram. Such evidence may be demonstrated by reasonable methodologies including those setforth in paragraph (m)(3) of this section. [If the Regional Center has been put through thewringer on this issue, a complete copy of the business plan and economic analysis shouldNOT be required. A copy of the Regional Center’s “Project Specific” Approval Notice issuedpursuant to an approved I-924 Amendment Application should suffice, absent materialchanges to the underlying business plan, economic analysis and “ standard investmenttransaction documentation.” Such individualized “standard transaction documentation”along with proof of lawful funds should be included with each petition package.](5) To show that the petitioner is or will be engaged in the management of the new commercialenterprise, either through the exercise of day-to-day managerial control or through policyformulation, as opposed to maintaining a purely passive role in regard to the investment, thepetition must be accompanied by:(i) A statement of the position title that the petitioner has or will have in the new enterprise and acomplete description of the positions duties;(ii) Evidence that the petitioner is a corporate officer or a member of the corporate board ofdirectors; or(iii) If the new enterprise is a partnership, either limited or general, evidence that the petitioner isengaged in either direct management or policy making activities. For purposes of this section, ifthe petitioner is a limited partner and the limited partnership agreement provides thepetitioner with certain rights, powers, and duties normally granted to limited partnersunder the Uniform Limited Partnership Act, the petitioner will be considered sufficientlyengaged in the management of the new commercial enterprise. [It seems that all RegionalCenters utilize this approach.]*****This next subject matter, TEAs, is often misunderstood by Regional Center principals (andtheir counsel), as well and the immigrant investors whether individual or Regional Centeraffiliated, and often misrepresented by Regional Centers and their “agents” abroad. ARegional Center does not qualify for a reduced investment rate merely by being designated asa Regional Center. Some principals, counsel, agents, and immigrant investors have thismisconception and spread this misinformation.While it is true that the TEA must be proven either “at time of investment” or “at time of filingthe I-526”, whichever comes first, it should be information obtained by the Regional Centeracting on behalf of all affected investors. If a Regional Center makes an effort to locate itsinvestment projects in a “rural area” in which the population is not likely to drasticallychange, then the RC should present population data to confirm that fact up front in the I-924and can have it ready to hand over to the individual investors.
  10. 10. For a TEA based on being a high unemployment area, the RC should coordinate with andremain in touch with the State representative/designee as to that TEA determination. The RCneeds to be vigilante on this aspect so that it may advertise correct minimum investmentrequirements and be prepared to deliver proof to the individual investors for inclusion withtheir I-526 petitions. USCIS needs to educate the States on this topic2.(6) If applicable, to show that the new commercial enterprise has created or will createemployment in a targeted employment area, the petition must be accompanied by:(i) In the case of a rural area, evidence that the new commercial enterprise is principally doingbusiness within a civil jurisdiction not located within any standard metropolitan statistical area asdesignated by the Office of Management and Budget, or within any city or town having apopulation of 20,000 or more as based on the most recent decennial census of the United States;or(ii) In the case of a high unemployment area:(A) Evidence that the metropolitan statistical area, the specific county within a metropolitanstatistical area, or the county in which a city or town with a population of 20,000 or more islocated, in which the new commercial enterprise is principally doing business has experienced anaverage unemployment rate of 150 percent of the national average rate; or(B) A letter from an authorized body of the government of the state in which the newcommercial enterprise is located which certifies that the geographic or political subdivision ofthe metropolitan statistical area or of the city or town with a population of 20,000 or more inwhich the enterprise is principally doing business has been designated a high unemploymentarea. The letter must meet the requirements of 8 CFR 204.6(i).*****A procedure for a Notice of Intent to Terminate is in place and comes with an opportunity forrebuttal and subsequent appeal and motion rights already, if the Notice of Intent process doesresult in a Termination. 8 CFR§ 204.6(m)(6).8 CFR § 204.6(m)(9) calls for Notice of a Regional Center’s Termination being given toindividual investors who are CPRs at that time, but the regulation is silent on alienentrepreneurs in an earlier stage of the process.2 Start with CNMI Governor Fitial and the DC Deputy Mayor. California has its act together and can be a model for the rest of the U.S.