I Thought I Saw that Somewhere BeforeThe Draft EB-5 Policy Guidance Document of November 9, 2011, states:      “Historical...
supporting job creation. Chang v. U.S., 327 F.3d 911, 927 (9th Cir. 2003). If, however,      the immigrant investor is see...
“USCIS also notes that, in the case of a petition affiliated with a regional center, the      petitioner will only be able...
projects and economic analyses with reliable and credible job projections based on avalid econometric model.This previous ...
is not an impermissible material change outside the I-526 approved plan. [This      emphasis added.]      While USCIS must...
and analysis, as well as EB-5 Program requirements. Members will include USCIS      economists, business analysts, and adj...
The following is an excerpt from above document (pages 3 and 4w/ footnotes):           “V.        FORMALIZATION OF THE REG...
and the entire program had yet to be fully identified. Up to a certain point in time, which          remains unclear, so-c...
Matter of Izummi, 22 I&N Dec. 169 (BIA3 1998) holds, in pertinent part:                      (3) A petitioner may not make...
facts for which no evidence previously existed in the absence of a material change made      subsequent to filing.      It...
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I thought I saw that somewhere before

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I thought I saw that somewhere before

  1. 1. I Thought I Saw that Somewhere BeforeThe Draft EB-5 Policy Guidance Document of November 9, 2011, states: “Historically, USCIS has required a direct connection between the business plan the investor has provided and the subsequent removal of conditions. USCIS would not approve a Form I-829 petition if the investor had made an investment and created jobs in the United States if the jobs were not created according to the plan presented in the Form I-526. While that position is a permissible construction of the governing statute, USCIS also notes that the statute does not require that direct connection. In order to provide flexibility to meet the realities of the business world, USCIS will permit an alien who has been admitted to the United States on a conditional basis to remove those conditions when circumstances have changed. An individual investor can, at the prescribed time, proceed with his or her Form I-829 petition to remove conditions and present documentary evidence demonstrating that, notwithstanding the business plan contained in the Form I-526, the requirements for the removal of conditions have been satisfied. USCIS notes, however, that it is more beneficial for an immigrant investor to utilize the business plan contained in the Form I-526. As the Ninth Circuit Court of Appeals has recognized, if the alien investor is seeking to have the conditions removed from his or her status based on the business plan contained in the Form I-526, USCIS may not revisit certain aspects of the business plan, including issues related to the economic analysis Page 1 of 10
  2. 2. supporting job creation. Chang v. U.S., 327 F.3d 911, 927 (9th Cir. 2003). If, however, the immigrant investor is seeking to have his or her conditions removed based on a business plan not consistent with the approved I-526, the Chang decision does not foreclose USCIS from requiring or requesting evidence to prove the element of job creation. This may include revisiting issues previously adjudicated in the Form I-526, such as the economic analysis underlying the new job creation.In the March 21, 2011, article in Immigration Daily entitled: “The Concepts of "ReasonableReliance" vs. "Deference to Prior Decisions" in EB-5” by Joseph Whalen, found at:http://www.ilw.com/articles/2011,0321-whalen.shtm, the very same concept was expressed infootnote #4, as follows: “4An argument could be made that IF the investor did materially change their plan BUT could still show the required results of a full "at risk" investment of the "required amount" and did "create the required number of jobs", THEN an ab initio investigation into a totally or substantially altered comprehensive business plan and the accompanying economic model and job prediction forecast should be performed. That proposition will need to be tested in a lawsuit to see if it succeeds or fails. This would be more appropriate for a "stand-alone" investor rather than a Regional Center affiliated investor.”The USCIS Draft for comments explained the differences between the “stand-alone” andRegional Center-affiliated investors by expanding the discussion in the following manner: Page 2 of 10
  3. 3. “USCIS also notes that, in the case of a petition affiliated with a regional center, the petitioner will only be able to claim indirect job creation if the new business plan falls within the scope of the regional center.” [Emphases added.]The Immigration Daily article of May 25, 2011, entitled: “The Application For A RegionalCenter Invites Material Change To Perfect That I-924: The Role Of Transparent Complexity InPreserving Investment Flexibility” by Joseph P. Whalen, found at:http://www.ilw.com/articles/2011,0525-whalen.shtm, expounded the virtues of planning forcontingencies as follows: “... In order to preserve the desired flexibility to shift to a different project or supplement an investment portfolio with an additional previously only "prospective investment" requires sufficient advanced planning. The Regional Center desiring such flexibility needs to have an inventory of "prospective projects" in the form of sufficiently "USCIS-vetted exemplars" on-the-shelf from which to choose. Planning ahead for a variety of contingencies is a wise move for any Regional Center. That case also involved shifting from a TEA to an area not shown to be a TEA. The RC cannot afford to lose sight of any pertinent detail in their specific investment maneuvers and the advanced planning for those possibilities or contingencies. It would also be incumbent upon the Regional Center to invest the needed resources in creating a sufficiently variegated business plan that is well supported with exemplar Page 3 of 10
  4. 4. projects and economic analyses with reliable and credible job projections based on avalid econometric model.This previous point is where a broad, credible, comprehensive business plan that is wide-ranging in scope and breadth submitted at the Regional Center (RC) Proposal (I-924)stage is critical. If a RC asserts a flexible investment approach and builds such flexibilityinto its written supporting documentation with a certain amount of specificity sufficient toput USCIS on notice, then shifting from one vetted "actual" project to another projectbased on a "previously vetted exemplar" project remains a possibility. Preserving suchflexibility is not a simple task.The RC applicant must invest great effort into the planning in order to retain suchflexibility for its prospective investors. The "general proposal" based on "generalpredictions" allowed by the statute [8 USC 1153 Note] must be presented with sufficientlydetailed information "concerning the kinds of commercial enterprises that will receivecapital from aliens" as allowed and envisioned all in that same statute. Congress alsodirected the agency to write regulations and to establish "reasonable methodologies".Well, those mechanisms are there in the regulations at 8 CFR § 204.6(m)(3). It is up tothe RC applicant to comply with those requirements from the very beginning. TheRegional Center investor is no freer to abruptly change midstream than USCIS,however, if the possibility is already built into the plans in advance of a shift, then it Page 4 of 10
  5. 5. is not an impermissible material change outside the I-526 approved plan. [This emphasis added.] While USCIS must set certain limits to such flexibility it would be to the detriment of the success and survival of the EB-5 Immigrant Investor Program to cut off any possibility of flexibility. I urge USCIS to address this concept in the anticipated revised I-924 and I- 526 form instructions and any planned regulatory update.” “Transparent Complexity "Up Front" Is Key To Reasonable Reliance On The Prospect Of Enjoying Future Deference Within EB-5 Based on Regional Center Affiliation Flexibility can be built into a complex Regional Center Proposal supporting the I-924 if it fully embraces each and every aspect of the implementing regulations and statute, as amended. ...”The USCIS Procedural Proposal for Comment issued May 18, 2011, introduced several basicideas that have been further developed after that. “Proposed Step 2: Specialized Intake Teams for I-924 Applications, with Direct Customer Access USCIS proposes to create Specialized Intake Teams to handle the initial intake and review of I- 924 applications. The teams will have expertise in economic development Page 5 of 10
  6. 6. and analysis, as well as EB-5 Program requirements. Members will include USCIS economists, business analysts, and adjudicators, and each team will be supported by legal counsel. The intake teams will determine if an I-924 application filed as an “actual” application meets the “actual” filing guidelines, and will work to ensure that each “actual” or “exemplar” I-924 application package is ready for adjudication. The teams will review the package for all required documentation and evidence and communicate directly with the I-924 applicant in writing to address identified questions or needs.” [Emphasis added.]In an e-mail back in February..... Comment on EB-5 Regional Center Adjudications (I-924) From Joseph Whalen [REDACTED] To opefeedback@uscis.dhs.gov Date Sun, Feb 20, 2011 at 4:43 PM hide details Feb 20 Subject Comment on EB-5 Regional Center Adjudications (I-924) mailed-by gmail.com I have some thoughts on the form I-924, Application For Regional Center Under the Immigrant Investor Pilot Program. I want to nip in the bud certain misconceptions on how that application should be adjudicated. Thank you, [REDACTED] __________________________________________________ Proper Consideration of form I-924.pdf 377K View Download POSTED AT: http://www.slideshare.net/BigJoe5/proper-consideration-of-form-i-924 at about the same time as this e-mail and as of this writing (12/09/2011). Proper consideration of form i 924 Document uploaded 9 months ago 15 pages, 358 views, 11 downloads (most recent 12/08/2011) Page 6 of 10
  7. 7. The following is an excerpt from above document (pages 3 and 4w/ footnotes): “V. FORMALIZATION OF THE REGIONAL CENTER PROCESS Following the formalization of the application process including the refinement of communication and later, the creation of an actual form, with a fee, for the adjudication and designation as a Regional Center, the general underlying principles applied to other applications and petitions had to be affirmatively applied to Regional Center designation proceedings. Certain participants had, and some continue to have, difficulty in adjusting to the more formal information dissemination, application and, adjudication processes. USCIS previously freely participated in informal discussions as to how to proceed in a procedural void that offered no formal guidance on how to apply and required no application or petition to be filed for an adjudication for which there was no fee. That situation could be construed as ex-parte communications1. Certain applicants sought to continue that customary practice which was allowed and necessary at that time which was before a radical formalization of the application process. In the absence of formal guidance or any formal procedures or fee for a determination, the very issues that would need to be addressed for the good of all potential applicants1 “…AAO notes that ex parte communications are prohibited by the Administrative Procedure Act (APA), 5 U.S.C. § 706. According to section 551 (14) of the APA,“ex parte communication” is defined as “an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is notgiven, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter.”” Non-Precedent AAO Decision on a Regional CenterProposal Denial Appeal http://www.uscis.gov/err/K1%20-%20Request%20for%20Participation%20as%20Regional%20Center/Decisions_Issued_in_2008/Nov182008_01K1610.pdf Page 7 of 10
  8. 8. and the entire program had yet to be fully identified. Up to a certain point in time, which remains unclear, so-called ex-parte communication was as beneficial to Legacy INS and USCIS as it was to the potential applicants. Some applicants, quite misguidedly and unfortunately, have tried to assert total fabrications and/or gross misinterpretations that they falsely or mistakenly claimed to be such ex-parte communications as binding pre- adjudication decisions that USCIS must abide by. Naturally, USCIS has clamped down on that approach and thrown up a brick wall to it. It was a necessary evil to cut off free and open communications and discourse when it was misused by bad actors. This was, and remains, a detriment to all participants, which includes USCIS and all private sector participants including Regional Centers, their immigrant and domestic investors. VI. MATERIAL CHANGE PROHIBITION Then along came the concept of “material change”. What is “material change”? The USCIS administrative appellate body, the Administrative Appeals Office (AAO) has offered some guidance on this topic and generally follows prior precedent by the Board of Immigration Appeals (BIA)2 in its prior decisions but has expanded on the concept and given it this name.2 The Board of Immigration Appeals (BIA or Board) was previously a part of the former Immigration and Naturalization Service(INS), then was spun off on January 9,1983, through an internal Department of Justice (DOJ) reorganization which combined the BIA with the Immigration Judge functions previously performed by INS andbecame a sister agency with oversight responsibility over INS but also within DOJ. The remainder of the former INS was abolished on March 1, 2003, and is now partof the Department of Homeland Security (DHS) but EOIR was retained in DOJ. Page 8 of 10
  9. 9. Matter of Izummi, 22 I&N Dec. 169 (BIA3 1998) holds, in pertinent part: (3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements. That same decision goes on to further explain the underlying requirement, thus: “A petitioner must establish eligibility at the time of filing4; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements.” [emphasis added] Matter of Katigbak, 14 I&N Dec. 45 (Reg, Comm., 1971) is often cited with regard to the general principle, as restated in Izummi , that one “must establish eligibility at the time of filing" and as expanded upon in the 3rd prong of the 13 prong holding in Izummi, prohibiting the making of material changes subsequent to filing to remedy deficiencies. This is not to be confused with a mere matter of supplying further evidence in response to a request for evidence. The prohibition is against creating new circumstances and new3 Although the decision as noted on the EOIR website lists this as a BIA precedent and the actual I&N Decision credits it to, then INS, Regional Commissioner, it wasactually rendered by the AAU, of what was then INS (now AAO of USCIS).4 On April 17, 2007, 72 FR at 19105 added 8 CFR § 103.2 Applications, petitions, and other documents. (b)(1) Demonstrating eligibility at time of filing. Anapplicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or petition. All required application orpetition forms must be properly completed and filed with any initial evidence required by applicable regulations and/or the form’s instructions. Any evidence submittedin connection with the application or petition is incorporated into and considered part of the relating application or petition. http://edocket.access.gpo.gov/2007/pdf/E7-7228.pdf Page 9 of 10
  10. 10. facts for which no evidence previously existed in the absence of a material change made subsequent to filing. It should be remembered that both of these Precedent Decisions, Katigbak and Izummi involved visa petitions that are tied inextricably to the “filing date as the priority date” for purpose of obtaining a place in a potentially very long line for an immigrant visa. Such immigrant visas being among the visa preference categories for which there are numerical limitations and country of origin quotas. There has never been full utilization of all available EB-5 visas in any year of the visa’s existence but they do have actual statutorily prescribed numerical limits in addition to the overall country quotas. Regional Centers do not rely on a priority date for issuance of its “Designation” instead imperfect filings can be perfected as a precursor to subsequent mass filings by individual immigrant investors. USCIS shares responsibility with the Regional Centers to get the preliminary matters in order as a service to the ultimate customer, the EB-5 immigrant.”And it goes on and on (it’s a 15 page singled spaced essay in 12 pt font). So I guess I did seethat somewhere before after-all. December 9, 2011 Page 10 of 10

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