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Judging the Quality of Evidence Presented    and Stating Findings and Conclusions                         By Joseph P. Wha...
that petitioner need only go on record as stating that training is not available outside the      United States is rejecte...
formal listing of findings and conclusions for approvals as well. This has nearlyevolved to become reality for Regional Ce...
Within the Department of Justice (DOJ) we find the Executive Office ofImmigration Review (EOIR). We are most familiar with...
28 CFR § 68.7 Form of pleadings.(a) Every pleading shall contain a caption setting forth the statutory provision under whi...
28 CFR § 68.9 Responsive pleadings—answer.(a) Time for answer. Within thirty (30) days after the service of a complaint, e...
28 CFR § 68.12 Prehearing statements.(a) At any time prior to the commencement of the hearing, the Administrative Law Judg...
(2) At the conference, the following matters may be considered:               (i) The simplification of issues;           ...
(b) Each interrogatory shall be answered separately and fully in writing under oath oraffirmation, unless it is objected t...
(c) Contents of final order with respect to unlawful employment of unauthorized aliens.       (1) If, upon the preponderan...
(5) If, upon a preponderance of the evidence, the Administrative Law Judge determinesthat a person or entity named in the ...
(d) Contents of final order with respect to unfair immigration-related employment practicecases.       (1) If, upon the pr...
274B(g)(2) of the INA, to pay a civil penalty of not less than $3,300 and not more       than $11,000 for each individual ...
(6) Attorneys fees. The Administrative Law Judge in his or her discretion may allow a       prevailing party, other than t...
(3) Adjustment of penalties for inflation. The civil penalties cited in paragraph (e) of this       section shall be subje...
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Judging the quality of evidence presented and stating findings and conclusions

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Judging the quality of evidence presented and stating findings and conclusions

  1. 1. Judging the Quality of Evidence Presented and Stating Findings and Conclusions By Joseph P. Whalen (September 28, 2012)The following excerpt is from an AAO non-precedent dated April 2, 2012,involving a petition for an extraordinary ability (EB-1) immigrant visa. “.... Rather than submitting primary evidence of his prizes and awards from the preceding fencing competitions, the petitioner instead submitted letters attesting to their existence. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158,165 (Commr 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl Commr 1972)). A petition must be filed with any initial evidence required by the regulation. 8 C.F.R. § 103.2(b)(1). The nonexistence or other unavailability of primary evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). According to the same regulation, only where the petitioner demonstrates that primary evidence does not exist or cannot be obtained may the petitioner rely on secondary evidence and only where secondary evidence is demonstrated to be unavailable may the petitioner rely on affidavits. Where a record does not exist, the petitioner must submit an original written statement on letterhead from the relevant authority indicating the reason the record does not exist and whether similar records for the time and place are available. 8 C.F.R. § 103.2(b)(2)(ii). ....” At pp. 5-6Let’s dissect that small excerpt and trace the roots of the concepts evoked fromprior decisions. Soffici dealt with an I-526 for an EB-5 immigrant investor visawhile the petitioner in Treasure Craft sought non-immigrant H-3 trainee visas.Neither visa category is in anyway directly similar to the EB-1 extraordinaryability immigrant visa category in that April 2, 2012, decision. The common threadacross not only these three visa categories but in every petition and applicationpresented to USCIS is the need to present evidence in support of the benefitrequest. Let’s track the specific cited text.On page 165 of Soffici, we find: “.... Simply going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. See Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972).”On page 190 of Treasure Craft we find the entire holding as follows: Since the burden of proof to establish eligibility for the benefits sought rests with petitioner, who seeks to accord beneficiaries classification as trainees under section 101(a)(15)(H)(iii) of the Immigration and Nationality Act, as amended, the contention Page 1 of 15
  2. 2. that petitioner need only go on record as stating that training is not available outside the United States is rejected; likewise rejected is the contention that petitioner may rely solely upon his statement "on record" that beneficiaries will not displace U.S. workers, particularly when such statement is contradicted by other evidence of record. Accordingly, the petition is denied for failure of petitioner to submit an adequate training program, for failure to establish why the alleged training could not be obtained in beneficiaries country, and because productive employment is involved which would displace United States workers.On page 193 of Treasure Craft we find a further reference to an earlier decision: “It has been decided that the burden of proof to establish eligibility for, the benefits sought rests with the petitioner in visa petition proceedings (Matter of Brantigan, 11 I. & N. Dec. 493). ....”Matter of Brantigan, 11 I&N Dec. (BIA 1966) held: In visa petition proceedings the burden of proof to establish eligibility for the benefit sought rests with the petitioner, and in the absence of proof of the legal termination of a U.S. citizen petitioners prior marriage, reliance on the presumption of validity accorded by California law to his subsequent ceremonial marriage in that State to beneficiary is not satisfactory evidence of the termination of his prior marriage and is insufficient by itself to sustain petitioners burden of proof of a valid marriage on which to accord beneficiary nonquota status. [Emphases added.]So, let’s put that in even simpler terms; USCIS will not simply “take your word forit”. You must supply evidence in support of your request. That evidence must besufficient, credible, and must make the adjudicator believe that all eligibilityfactors are satisfied to the level and extent required under the law. That’s nice butwhat does that mean in practical terms?An adjudication decision is an exercise of the adjudicator’s judgment, through anapplication of the law to the facts that (s)he has found. It is usually a daunting taskto sort and sift through reams of paper submitted as evidence. I know this fromexperience. I will take a moment here to relate a couple of simple truths aboutdocumentary evidence. It truly is quality that counts over and above merequantity. Also, please understand that quantity is not indicative of quality.Once an adjudicator has sifted and sorted, they need to keep track and coherentlyspell out the evidence relied upon in their decisional process. It is usually not asurgent or necessary to make a formal listing of findings-of-fact and conclusions-of-law when a case is being approved however, it is paramount when a case is beingdenied. That said, I feel that the reality of the EB-5 context really demands a Page 2 of 15
  3. 3. formal listing of findings and conclusions for approvals as well. This has nearlyevolved to become reality for Regional Center Approvals but the format andprocess still have room for improvements. I have previously written on this subjectthrough dissecting the Regional Center Approval Notice language. However, I didnot really delve into the process employed or what could be improved in my prioressay. I will now offer suggestions as to the way I would refine the process andstandard Approval Notices. I do not see a need to start completely from scratch ortry to reinvent the wheel over this subject matter.AAO sometimes consults the Administrative Procedures Act (APA) [Chapter 5,Subchapter II of 5 USC] for guidance on novel issues. The APA contains certainpassages that might be utilized to frame a re-imagined standard for administrativeadjudication decisions in the EB-5 context. While my main focus here is theRegional Center Approval Notice, similar alterations should be considered for thestand-alone, non-Regional Center I-526 Approval Notice. See esp., 5 USC § 557.§ 557 Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record * * * * * (c) Before a recommended, initial, or tentative decision, or a decision on agencyreview of the decision of subordinate employees, the parties are entitled to areasonable opportunity to submit for the consideration of the employeesparticipating in the decisions— (1) proposed findings and conclusions; or (2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and (3) supporting reasons for the exceptions or proposed findings or conclusions. The record shall show the ruling on each finding, conclusion, or exceptionpresented. All decisions, including initial, recommended, and tentative decisions,are a part of the record and shall include a statement of— (A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and (B) the appropriate rule, order, sanction, relief, or denial thereof. * * * * * Page 3 of 15
  4. 4. Within the Department of Justice (DOJ) we find the Executive Office ofImmigration Review (EOIR). We are most familiar with primary Appellate Bodyknown as the Board of Immigration Appeals (BIA or Board). There is anothermajor entity within EOIR that also renders decisions on INA based cases. Thatother component in the Office of the Chief Hearing Officer (OCAHO) whereinindividual Administrative Law Judges (ALJs) akin to the Immigration Judges whopreside over Immigration Courts—well sort of. Allow me to pose this analogy.If we were to compare the components of EOIR to the Federal Court System(Courts within the Judicial Branch), then IJs would be like District Court Judgesand OCAHO ALJs would be more like Magistrate Judges. That leaves the BIA tobe considered like a Circuit Court in relation to the IJs while the ChiefAdministrative Hearing Officer (CAHO) is similarly situated over the ALJs.Confused yet? Wait, it gets even more complex. The Attorney General can certifyanything from the BIA or CAHO to him or herself (currently himself). After theadministrative decisions become as final as they can, they are then appealable tothe Judicial Branch one way or another.The whole point of talking about the “other” EOIR components is that the ALJshave some well-crafted regulations and procedures dictating the format of theirproceedings and written decisions. Those regulations mimic the APA more thanthose of any other administrative immigration-related adjudication componentwithin DOJ or DHS. The BIA and USCIS could take a page of two from theOCAHO regulations and use them to their own advantage. Consider the EB-5Adjudicator and the “Decision Board” and the potential value of applying the APAand OCAHO regulations and procedures to their formal face-to-face “interviews”as well as their written decisions. I believe that quality and consistency wouldimprove. I also believe that the Regional Center Applicants would be better able toperform their duties and obligations towards their EB-5 alien investors and comecloser to fulfilling Congressional Intent for the EB-5 Regional Center Program.28 CFR Part 68 contains a few gems that could either be imported wholesale orslightly modified for use by the other components of EOIR and could aid USCISas well. My thinking is that AAO and the anticipated Regional Center (I-924)Decision Board could find something useful within these regulations. A smallexcerpt is presented below. The use of the word “small” is no joke these are only afew bits and pieces from massive regulations. Page 4 of 15
  5. 5. 28 CFR § 68.7 Form of pleadings.(a) Every pleading shall contain a caption setting forth the statutory provision under which theproceeding is instituted, the title of the proceeding, the docket number assigned by the Office ofthe Chief Administrative Hearing Officer, the names of all parties (or, after the complaint, atleast the first party named as a complainant or respondent), and a designation of the type ofpleading (e.g., complaint, motion to dismiss). The pleading shall be signed, dated, and shallcontain the address and telephone number of the party or person representing the party. Thepleading shall be on standard size (81/2×11) paper and should also be typewritten when possible.(b) A complaint filed pursuant to section 274A, 274B, or 274C of the INA shall contain thefollowing: (1) A clear and concise statement of facts, upon which an assertion of jurisdiction is predicated; (2) The names and addresses of the respondents, agents, and/or their representatives who have been alleged to have committed the violation; (3) The alleged violations of law, with a clear and concise statement of facts for each violation alleged to have occurred; and, (4) A short statement containing the remedies and/or sanctions sought to be imposed against the respondent. (5) The complaint must be accompanied by a statement identifying the party or parties to be served by the Office of the Chief Administrative Hearing Officer with notice of the complaint pursuant to §68.3.(c) Complaints filed pursuant to sections 274A and 274C of the INA shall be signed byanattorney and shall be accompanied by a copy of the Notice of Intent to Fine and Request forHearing. Complaints filed pursuant to section 274B of the INA shall be accompanied by a copyof the charge, previously filed with the Special Counsel pursuant to section 274B(b)(1), and acopy of the Special Counsels letter of determination regarding the charges.(d) Illegible documents, whether handwritten, typewritten, photocopied, or otherwise, will not beaccepted. Papers may be reproduced by any duplicating process, provided that all copies areclear and legible.(e) All documents presented by a party in a proceeding must be in the English language or, if in aforeign language, accompanied by a certified translation.[Order No. 2203–99, 64 FR 7074, Feb. 12, 1999] Page 5 of 15
  6. 6. 28 CFR § 68.9 Responsive pleadings—answer.(a) Time for answer. Within thirty (30) days after the service of a complaint, each respondentshall file an answer.(b) Default. Failure of the respondent to file an answer within the time provided may be deemedto constitute a waiver of his or her right to appear and contest the allegations of the complaint.The Administrative Law Judge may enter a judgment by default.(c) Answer. Any respondent contesting any material fact alleged in a complaint, or contendingthat the amount of a proposed penalty or award is excessive or inappropriate, or contending thathe or she is entitled to judgment as a matter of law, shall file an answer in writing. The answershall include: (1) A statement that the respondent admits, denies, or does not have and is unable to obtain sufficient information to admit or deny each allegation; a statement of lack of information shall have the effect of a denial (any allegation not expressly denied shall be deemed to be admitted); and (2) A statement of the facts supporting each affirmative defense.(d) Reply. Complainants may file a reply responding to each affirmative defense asserted.(e) Amendments and supplemental pleadings. If a determination of a controversy on the meritswill be facilitated thereby, the Administrative Law Judge may, upon such conditions as arenecessary to avoid prejudicing the public interest and the rights of the parties, allow appropriateamendments to complaints and other pleadings at any time prior to the issuance of theAdministrative Law Judges final order based on the complaint. When issues not raised by thepleadings are reasonably within the scope of the original complaint and are tried by express orimplied consent of the parties, they shall be treated in all respects as if they had been raised in thepleadings, and such amendments may be made as necessary to make the pleading conform to theevidence. The Administrative Law Judge may, upon reasonable notice and such terms as are just,permit supplemental pleadings setting forth transactions, occurrences, or events that haveoccurred or new law promulgated since the date of the pleadings and which are relevant to any ofthe issues involved.[Order No. 2203–99, 64 FR 7075, Feb. 12, 1999] Page 6 of 15
  7. 7. 28 CFR § 68.12 Prehearing statements.(a) At any time prior to the commencement of the hearing, the Administrative Law Judge mayorder any party to file a prehearing statement of position.(b) A prehearing statement shall state the name of the party or parties on whose behalf it ispresented and shall briefly set forth the following matters, unless otherwise ordered by theAdministrative Law Judge: (1) Issues involved in the proceedings; (2) Facts stipulated to together with a statement that the party or parties have communicated or conferred in a good faith effort to reach stipulation to the fullest extent possible; (3) Facts in dispute; (4) Witnesses, except to the extent that disclosure would be privileged, and exhibits by which disputed facts will be litigated; (5) A brief statement of applicable law; (6) The conclusions to be drawn; (7) The estimated time required for presentation of the partys or parties case; and (8) Any appropriate comments, suggestions, or information which might assist the parties or the Administrative Law Judge in preparing for the hearing or otherwise aid in the disposition of the proceeding.[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534–91, 56 FR 50053, Oct. 3, 1991]28 CFR § 68.13 Conferences.(a) Purpose and scope. (1) Upon motion of a party or in the Administrative Law Judges discretion, the judge may direct the parties or their counsel to participate in a prehearing conference at any reasonable time prior to the hearing, or in a conference during the course of the hearing, when the Administrative Law Judge finds that the proceeding would be expedited by such a conference. Prehearing conferences normally shall be conducted by conference telephonic communication unless, in the opinion of the Administrative Law Judge, such method would be impractical, or when such conferences can be conducted in a more expeditious or effective manner by correspondence or personal appearance. Reasonable notice of the time, place, and manner of the prehearing conference shall be given. Page 7 of 15
  8. 8. (2) At the conference, the following matters may be considered: (i) The simplification of issues; (ii) The necessity of amendments to pleadings; (iii) The possibility of obtaining stipulations of facts and of the authenticity, accuracy, and admissibility of documents, which will avoid unnecessary proof; (iv) The limitations on the number of expert or other witnesses; (v) Negotiation, compromise, or settlement of issues; (vi) The exchange of copies of proposed exhibits; (vii) The identification of documents or matters of which official notice may be requested; (viii) A schedule to be followed by the parties for completion of the actions decided at the conference; and (ix) Such other matters, including the disposition of pending motions, as may expedite and aid in the disposition of the proceeding.(b) Reporting. A verbatim record of the conference will not be kept unless directed by theAdministrative Law Judge.(c) Order. Actions taken as a result of a conference shall be reduced to a written order, unless theAdministrative Law Judge concludes that a stenographic report shall suffice, or, if the conferencetakes place within seven (7) days of the beginning of the hearing, the Administrative Law Judgeelects to make a statement on the record at the hearing summarizing the actions taken.[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534–91, 56 FR 50053, Oct. 3, 1991]28 CFR § 68.19 Written interrogatories to parties.(a) Any party may serve upon any other party written interrogatories to be answered in writingby the party served, or if the party served is a public or private corporation or a partnership orassociation or governmental agency, by any authorized officer or agent, who shall furnish suchinformation as is available to the party. A copy of the interrogatories shall be served on allparties to the proceeding. Page 8 of 15
  9. 9. (b) Each interrogatory shall be answered separately and fully in writing under oath oraffirmation, unless it is objected to, in which event the reasons of objection shall be stated in lieuof an answer. The answers and objections shall be signed by the person making them. The partyupon whom the interrogatories were served shall serve a copy of the answer or objections uponall parties to the proceeding within thirty (30) days after service of the interrogatories, or withinsuch shorter or longer period as the Administrative Law Judge upon motion may allow.(c) An interrogatory otherwise proper is not necessarily objectionable merely because an answerto the interrogatory involves an opinion or contention that relates to fact or theapplication of lawto fact, but the Administrative Law Judge may upon motion order that such an interrogatory neednot be answered until after designated discovery has been completed or until a prehearingconference or other later time.(d) A person or entity upon whom interrogatories are served may respond by the submission ofbusiness records, indicating to which interrogatory the documents respond, if they are sufficientto answer said interrogatories.[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534–91, 56 FR 50053, Oct. 3, 1991]28 CFR § 68.52 Final order of the Administrative Law Judge.(a) Proposed final order. (1) Within twenty (20) days of filing of the transcript of the testimony, or within such additional time as the Administrative Law Judge may allow, the Administrative Law Judge may require the parties to file proposed findings of fact, conclusions of law, and orders, together with supporting briefs expressing the reasons for such proposals. Such proposals and briefs shall be served on all parties and shall refer to all portions of the record and to all authorities relied upon in support of each proposal. (2) The Administrative Law Judge may, by order, require that when a proposed order is filed for the Administrative Law Judges consideration, the filing party shall submit to the Administrative Law Judge a copy of the proposed order on a 3.5&inch; microdisk.(b) Entry of final order. Unless an extension of time is given by the Chief AdministrativeHearing Officer for good cause, the Administrative Law Judge shall enter the final order withinsixty (60) days after receipt of the hearing transcript or of post-hearing briefs, proposed findingsof fact, and conclusions of law, if any, by the Administrative Law Judge. The final order enteredby the Administrative Law Judge shall be based upon the whole record. It shall be supported byreliable and probative evidence. The standard of proof shall be by a preponderance of theevidence. Page 9 of 15
  10. 10. (c) Contents of final order with respect to unlawful employment of unauthorized aliens. (1) If, upon the preponderance of the evidence, the Administrative Law Judge determines that a person or entity named in the complaint has violated section 274A(a)(1)(A) or (a)(2) of the INA, the final order shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of: (i) Not less than $275 and not more than $2,200 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring before March 27, 2008; not less than $375 and not more than $3,200 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring on or after March 27, 2008; (ii) In the case of a person or entity previously subject to one final order under this paragraph (c)(1), not less than $2,200 and not more than $5,500 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring before March 27, 2008, and not less than $3,200 and not more than $6,500 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring on or after March 27, 2008; or (iii) In the case of a person or entity previously subject to more than one final order under paragraph (c)(1) of this section, not less than $3,300 and not more than $11,000 for each unauthorized alien with respect to whom there was a violation of each such paragraph occurring before March 27, 2008, and not less than $4,300 and not more than $16,000 for each unauthorized alien with respect to whom there was a violation of each such paragraph occurring on or after March 27, 2008. (2) The final order may also require the respondent to participate in, and comply with the terms of, one of the pilot programs set forth in Pub. L. 104–208, Div. C, sections 401–05, 110 Stat. 3009, 3009–655 to 3009–665 (1996) (codified at 8 U.S.C. 1324a (note)), with respect to the respondents hiring or recruitment or referral of individuals in a state (as defined in section 101(a)(36) of the INA) covered by such a program. (3) The final order may also require the respondent to comply with the requirements of section 274A(b) of the INA with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years; and to take such other remedial action as is appropriate. (4) In the case of a person or entity composed of distinct, physically separate subdivisions, each of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of, and under the control of, or common control with, another subdivision, each such subdivision shall be considered a separate person or entity. Page 10 of 15
  11. 11. (5) If, upon a preponderance of the evidence, the Administrative Law Judge determinesthat a person or entity named in the complaint has violated section 274A(a)(1)(B) of theINA, except as set forth in paragraph (c)(6) of this section, the final order under thisparagraph shall require the person or entity to pay a civil penalty in an amount of not lessthan $100 and not more than $1,000 for each individual with respect to whom suchviolation occurred before March 15, 1999, and not less than $110 and not more than$1,100 for each individual with respect to whom such violation occurred on or afterMarch 15, 1999. In determining the amount of the penalty, due consideration shall begiven to the size of the business of the employer being charged, the good faith of theemployer, the seriousness of the violation, whether or not the individual was anunauthorized alien, and the history of previous violations.(6) With respect to a violation of section 274A(a)(1)(B) of the INA where a person orentity participating in a pilot program has failed to provide notice of finalnonconfirmation of employment eligibility of an individual to the Attorney General asrequired by Pub. L. 104–208, Div. C, section 403(a)(4)(C), 110 Stat. 3009, 3009–661(1996) (codified at 8 U.S.C. 1324a (note)), the final order under this paragraph shallrequire the person or entity to pay a civil penalty in an amount of not less than $500 andnot more than $1,000 for each individual with respect to whom such violation occurredbefore March 27, 2008, and not less than $550 and not more than $1,100 for eachindividual with respect to whom such violation occurred on or after March 27, 2008.(7) Prohibition of indemnity bond cases. If, upon the preponderance of the evidence, theAdministrative Law Judge determines that a person or entity has violated section274A(g)(1) of the INA, the final order shall require the person or entity to pay a civilpenalty of $1,000 for each individual with respect to whom such violation occurredbefore March 15, 1999, and $1,100 for each individual with respect to whom suchviolation occurred on or after March 15, 1999, and require the return of any amountsreceived in such violation to the individual or, if the individual cannot be located, to thegeneral fund of the Treasury.(8) Adjustment of penalties for inflation. The civil penalties cited in paragraph (c) of thissection shall be subject to adjustments for inflation at least every four years in accordancewith the Debt Collection Improvement Act.(9) Attorneys fees. A prevailing respondent may receive, pursuant to 5 U.S.C. 504, anaward of attorneys fees in unlawful employment and prohibition of indemnity bondcases. Any application for attorneys fees shall be accompanied by an itemized statementfrom the attorney or representative, stating the actual time expended and the rate at whichfees and other expenses were computed. An award of attorneys fees will not be made ifthe Administrative Law Judge determines that the complainants position wassubstantially justified or special circumstances make the award unjust. Page 11 of 15
  12. 12. (d) Contents of final order with respect to unfair immigration-related employment practicecases. (1) If, upon the preponderance of the evidence, the Administrative Law Judge determines that any person or entity named in the complaint has engaged in or is engaging in an unfair immigration-related employment practice, the final order shall include a requirement that the person or entity cease and desist from such practice. The final order may also require the person or entity: (i) To comply with the requirements of section 274A(b) of the INA with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years; (ii) To retain for a period of up to three years, and only for purposes consistent with section 274A(b)(5) of the INA, the name and address of each individual who applies, in person or in writing, for hiring for an existing position, or for recruiting or referring for a fee, for employment in the United States; (iii) To hire individuals directly and adversely affected, with or without back pay; (iv) To post notices to employees about their rights under section 274B and employers obligations under section 274A; (v) To educate all personnel involved in hiring and in complying with section 274A or 274B about the requirements of 274A or 274B; (vi) To order, in an appropriate case, the removal of a false performance review or false warning from an employees personnel file; (vii) To order, in an appropriate case, the lifting of any restrictions on an employees assignments, work shifts, or movements; (viii) Except as provided in paragraph (d)(1)(xii) of this section, to pay a civil penalty of not less than $275 and not more than $2,200 for each individual discriminated against before March 27, 2008, and not less than $375 and not more than $3,200 for each individual discriminated against on or after March 27, 2008; (ix) Except as provided in paragraph (d)(1)(xii) of this section, in the case of a person or entity previously subject to a single final order under section 274B(g)(2) of the INA, to pay a civil penalty of not less than $2,200 and not more than $5,500 for each individual discriminated against before March 27, 2008, and not less than $3,200 and not more than $6,500 for each individual discriminated against on or after March 27, 2008; (x) Except as provided in paragraph (d)(1)(xii) of this section, in the case of a person or entity previously subject to more than one final order under section Page 12 of 15
  13. 13. 274B(g)(2) of the INA, to pay a civil penalty of not less than $3,300 and not more than $11,000 for each individual discriminated against before March 27, 2008, and not less than $4,300 and not more than $16,000 for each individual discriminated against on or after March 27, 2008; (xi) To participate in, and comply with the terms of, one of the pilot programs set forth in Pub. L. 104–208, Div. C, sections 401–05, 110 Stat. 3009, 3009–655 to 3009–665 (1996) (codified at 8 U.S.C. 1324a (note)), with respect to the respondents hiring or recruitment or referral of individuals in a state (as defined in section 101(a)(36) of the INA) covered by such a program; and (xii) In the case of an unfair immigration-related employment practice where a person or entity, for the purpose or with the intent of discriminating against an individual in violation of section 274B(a), requests more or different documents than are required under section 274A(b) or refuses to honor documents that on their face reasonably appear to be genuine, to pay a civil penalty of not less than $100 and not more than $1,000 for each individual discriminated against before March 15, 1999, and not less than $110 and not more than $1,100 for each individual discriminated against on or after March 15, 1999, or to order any of the remedies listed as paragraphs (d)(1)(i) through (d)(1)(vii) of this section.(2) The civil penalties cited in paragraph (d) of this section shall be subject toadjustments for inflation at least every four years in accordance with the Debt CollectionImprovement Act.(3) Back pay liability shall not accrue from a date more than two years prior to the date ofthe filing of a charge with the Special Counsel. In no event shall back pay accrue frombefore November 6, 1986. Interim earnings or amounts earnable with reasonablediligence by the individual or individuals discriminated against shall operate to reduce theback pay otherwise allowable. No order shall require the hiring of an individual as anemployee, or the payment to an individual of any back pay, if the individual was refusedemployment for any reason other than discrimination on account of national origin orcitizenship status unless it is determined that an unfair immigration-related employmentpractice exists under section 274B(a)(5) of the INA.(4) In applying paragraph (d) of this section in the case of a person or entity composed ofdistinct, physically separate subdivisions, each of which provides separately for thehiring, recruiting, or referring for employment, without reference to the practices of, andnot under the control of or common control with another subdivision, each suchsubdivision shall be considered a separate person or entity.(5) If, upon the preponderance of the evidence, the Administrative Law Judge determinesthat a person or entity named in the complaint has not engaged in and is not engaging inan unfair immigration-related employment practice, then the final order shall dismiss thecomplaint. Page 13 of 15
  14. 14. (6) Attorneys fees. The Administrative Law Judge in his or her discretion may allow a prevailing party, other than the United States, a reasonable attorneys fee if the losing partys argument is without reasonable foundation in law and fact. Any application for attorneys fees shall be accompanied by an itemized statement from the attorney or representative stating the actual time expended and the rate at which fees and other expenses were computed.(e) Contents of final order with respect to document fraud cases. (1) If, upon the preponderance of the evidence, the Administrative Law Judge determines that a person or entity has violated section 274C of the INA, the final order shall include a requirement that the respondent cease and desist from such violations and pay a civil money penalty in an amount of: (i) Not less than $275 and not more than $2,200 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA before March 27, 2008, and not less than $375 and not more than $3,200 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA on or after March 27, 2008; (ii) Not less than $250 and not more than $2,000 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA before March 27, 2008, and not less than $275 and not more than $2,200 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA on or after March 27, 2008; (iii) In the case of a respondent previously subject to one or more final orders under section 274C(d)(3) of the INA, not less than $2,200 and not more than $5,500 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA before March 27, 2008, and not less than $3,200 and not more than $6,500 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA on or after March 27, 2008; or (iv) In the case of a respondent previously subject to one or more final orders under section 274C(d)(3) of the INA, not less than $2,000 and not more than $5,000 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA before March 27, 2008, and not less than $2,200 and not more than $5,500 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA on or after March 27, 2008. (2) In the case of a person or entity composed of distinct, physically separate subdivisions, each of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of, and under the control of, or common control with, another subdivision, each such subdivision shall be considered a separate person or entity. Page 14 of 15
  15. 15. (3) Adjustment of penalties for inflation. The civil penalties cited in paragraph (e) of this section shall be subject to adjustments for inflation at least every four years in accordance with the Debt Collection Improvement Act. (4) Attorneys fees. A prevailing respondent may receive, pursuant to 5 U.S.C. 504, an award of attorneys fees in document fraud cases. Any application for attorneys fees shall be accompanied by an itemized statement from the attorney or representative, stating the actual time expended and the rate at which fees and other expenses were computed. An award of attorneys fees shall not be made if the Administrative Law Judge determines that the complainants position was substantially justified or special circumstances make the award unjust.(f) Corrections to orders. An Administrative Law Judge may, in the interest of justice, correctany clerical mistakes or typographical errors contained in a final order entered in a case arisingunder section 274A or 274C of the INA at any time within thirty (30) days after the entry of thefinal order. Changes other than clerical mistakes or typographical errors will be considered incases arising under sections 274A and 274C of the INA by filing a request for review to theChief Administrative Hearing Officer by a party under §68.54, or the Chief AdministrativeHearing Officer may exercise discretionary review to make such changes pursuant to §68.54. Incases arising under section 274B of the INA, an Administrative Law Judge may correct anysubstantive, clerical, or typographical errors or mistakes in a final order at any time within sixty(60) days after the entry of the final order.(g) Final agency order. In a case arising under section 274A or 274C of the INA, theAdministrative Law Judges order becomes the final agency order sixty (60) days after the dateof the Administrative Law Judges order, unless the Chief Administrative Hearing Officermodifies, vacates, or remands the Administrative Law Judges final order pursuant to §68.54, orunless the order is referred to the Attorney General pursuant to §68.55. In a case arising undersection 274B of the INA, the Administrative Law Judges order becomes the final agency orderon the date the order is issued.[Order No. 2203–99, 64 FR 7079, Feb. 12, 1999, as amended by Order No. 2255–99, 64 FR49660, Sept. 14, 1999; Order No. 2944–2008, 73 FR 10136, Feb. 26, 2008]Once again, the above are only a few small excerpts from massive regulations.That said, there may be something of value in the OCAHO regulations andportions of the APA that can be utilized by USCIS especially in the EB-5 context.While the content, context, and specific details above are very off-topic, the styleof the regulations and level of detail are what may be useful. Think outside yourbox!Thank you for taking the time to at least consider this input.Joseph P. Whalene-mail: joseph.whalen774@gmail.com Page 15 of 15

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