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KSAs and the math wiz RC dismissal


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KSAs and the math wiz RC dismissal

  1. 1. Page 1 of 3Last But Not Least Discussion On RecentAAO Regional Center DismissalsBy Joseph P. Whalen (September 14, 2012)In this third and final installment, I will offer some observations on the AAO non-precedent Regional Center Appeal Dismissal of November 10, 2010. This caseoffers an opportunity to first discuss economic analysis, misinterpretation of data,and extremely poor math skills by a non-economist who seems to have no sense.As an added bonus we can see some prohibited concepts and language in a LimitedPartnership Agreement. Let’s get started, we’re in for a bumpy ride.I’ve said it before and I’ll say again, it scares me to see such clueless people tryingto get into EB-5. There is actually someone out there that believed that it ishumanly possible for one person to work 167 hours per week. Do the math!24 hours per dayx 7 days per week168 hours per week- 167 hours per week1 hour per week of rest (time off) = 60 minutes ÷7 days = 8.571...That means this worker is allowed approximately 8 ½ minutes of rest per day!I am not kidding, someone really put forth the notion that one person could work167 hours per week and then based all their staffing requirements and jobprojections for a hypothetical motel on that bizarre premise! “Garbage in, garbageout” was never this easy to illustrate before this decision hit the USCIS website!“As an example, the analysis examines a proposed 65 room motel project. The size of theprojected hotel is 43,968 square feet. Using the same DOE table referenced above, theanalysis states:[T]he mean square feet per worker for lodging is 2,074. This means that the43,968 square foot motel would support 21.2 direct employees each of whomwork an average of 167 hours per week. Rather than one employee working anaverage of 167 hours per week, it is more realistic to have 4.8 (= 167/35)employees each of whom works 35 hours per week. Thus, the total number ofdirect employees that would be needed for the motel are 101.8 (= 21.2 x 4.8).”I have combined three items that belong together. I wrote two and one is an AAO Dismissal ofRegional Center appeal. If you take the time to read them then you will understand why I put themtogether! I discuss the case, include the case and a follow up article. Enjoy!
  2. 2. Page 2 of 3The non-economist who came up with these numbers pulled them off a table foundon the internet. Remembering that this decision is dated November 10, 2010, andgenerously assuming that it was prepared over one year prior that would mean thatthe “data” used as “input” was “found” in early 2009. The kicker is that the tablethat the misinterpreted numbers were pulled from is dated as of 2003. So, it wasover five (perhaps closer to six) years out of date in 2009.Having now seen the level of “quality” that USCIS was deluged with, maybe theEB-5 Stakeholder Community should cut them some slack. Does anyone want todefend this attempt to obtain Regional Center Designation? Is anyone willing topublicly take ownership of the Proposal upon which this particular AAO Decisionis based? I didn’t think so!Wait, it gets better, or worse, depending on if you are getting a laugh out of this ornot. This math wizard and frightful philosopher misconstrued several differentpieces of “data” that were pulled from the table (s)he found on the internet. AAOtried to explain what the table really indicated. Here is merely one small excerptfrom AAO on this topic.The title of the table references hours of operation and the table itself references meanhours per week. Thus, the mean hours per week must refer to the hours of operationrather than the mean number of hours per employee. Given that there are only 168hours in a week, it cannot be concluded that the table demonstrates that the mean hoursper week per employee is 167. Nothing on the table suggests that the square footageper worker represents square footage per worker during a given shift only rather thanas a function of total employment.And now for something completely different, a man with three buttocks! {I am aMonty Python fan and any others out there will hopefully, “Get it”.}Seriously, let’s now turn to the added bonus of the “terms that raise concern” in theLimited Partnership Agreement. What could possibly be wrong with that?Beyond the decision of the director, the proposed limited partnership agreement hasterms that raise concerns. First, the capital contributions section, 3(b), provides thatlimited partners may contribute "services." The regulation at 8 C.F.R. § 204.6(e) definescapital as "cash, equipment, inventory, other tangible property, cash equivalents" andcertain indebtedness. The regulation at 8 C.F.R. § 204.6(j)(2) does not allow qualifyinginvestor pursuant to section 203(b )(5) of the Act to establish an investment through thecontribution of services.
  3. 3. Page 3 of 3In addition, the full amount of the requisite investment must be made available to thebusiness most closely responsible for creating the employment upon which the petition isbased. Matter of Izummi,22 I&N Dec. 169, 179 (Commr. 1998). Section 3(c) of thelimited partnership agreement allows any amounts "not required for purposes of itsbusiness, including reasonable reserves for contingencies" to be distributed. Section 5(b)provides for the distribution of funds unrelated to profits, which are discussed in section5(c). These sections, which provide for distributions of funds above and beyondprofits, raise concerns that the investors may not be placing the full investmentamount at risk.For those who are still not clear on the basics, I will spell out a couple of keypoints. The Regional Center exists ONLY within the Pilot Program. The Pilot Program permits Regional Centers to exist for the purpose ofconcentrating pooled investments in larger projects. Those pooled investments are meant to include a mix of domestic or othernon-EB-5 funds (even institutional investors) funds, as well as EB-5 alieninvestors’ funds. IF, and that is only IF, any “reserves” or “cash on hand” were needed, theyshould come out of the non-EB-5 investors’ share BECAUSE the non-EB-5investors are NOT under a legal obligation to make a truly “at risk”investment of a statutorily prescribed minimum amount in exchange for anImmigrant Visa. ALL jobs created by the WHOLE Project are freely available for allocationto the EB-5 investors alone BECAUSE the non-EB-5 investors don’t needthem for purposes of lifting conditions from status; and probably couldn’tcare less about them even if they tried.That’s my two-cents, for now.e-mail me at:
  4. 4. identifying data deleted toprevent clearly unwarrantedinvasion of per~onal privacyPUBLIC COpyFILE:INRE: Applicant:U.S. Department of Homeland SecurityU.S. Citizenship and Immigration ServicesOffice ofAdministrative Appeals MS 2090Washington, DC 20529-2090u.s. Citizenshipand ImmigrationServicesD~V 1 0 2010PETITION: Proposal for Designation as a Regional Center Pursuant to Section 61O(c) of the Departmentsof Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of1993, Pub. L. No. 103-121, 106 Stat. 1874 (1992).ON BEHALF OF PETITIONER:INSTRUCTIONS:Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documentsrelated to this matter have been returned to the office that originally decided your case. Please be advised thatany further inquiry that you might have concerning your case must be made to that office.If you believe the law was inappropriately applied by us in reaching our decision, or you have additionalinformation that you wish to have considered, you may file a motion to reconsider or a motion to reopen. Thespecific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must besubmitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion.The fee for a Form I-290B is currently $585, but will increase to $630 on November 23, 2010. Any appeal ormotion filed on or after November 23, 2010 must be filed with the $630 fee. Please be aware that 8 C.F.R.§ 103.5(a)(1)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks toreconsider or reopen.Thank you,~~~PerryRhewChief, Administrative Appeals
  5. 5. Page 2DISCUSSION: The Director, California Service Center, denied the proposal for designation as aregional center. The matter is now before the Administrative Appeals Office (AAO) on appeal. Theappeal will be dismissed.The applicant seeks designation as a regional center pursuant to section 61O(c) of the Departments ofCommerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub.L. No. 102-395, 106 Stat. 1874 (1992), as amended by section 116 of Pub. L. No. 105-119, 111 Stat.2440 (1997); section 402 of Pub. L. No. 106-396, 114 Stat. 1637 (2000) and section 11037 of Pub.L. No. 107-273, 116 Stat. 1758 (2002).The director determined that the applicant had not sufficiently explained the regional centers projectedpositive impact on the regional or national economy in general. In addition, the director concluded thatthe applicant had not sufficiently explained what type of jobs would be created or provided the jobcreation multipliers used for all industries identified. Finally, the director questioned the conclusion thatthe 21.2 direct jobs would be for jobs requiring 167 hours per week, which could then be multiplied byfour shifts.On appeal, the applicant provides a new economic analysis. For the reasons discussed below, theapplicant has not overcome all of the directors concerns. In addition, a review of the proposed limitedpartnership agreement reveals terms that are problematic.An application or petition that fails to comply with the technical requirements of the law may bedenied by the AAO even if the Service Center does not identify all of the grounds for denial in theinitial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D.Cal. 2001), af!d, 345 F.3d 683 (9thCir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir.2004) (noting that the AAO conducts appellate review on a de novo basis).I. Relevant Statute and RegulationsSection 203(b)(5)(A) of the Act, as amended, provides classification to qualified immigrants seeking toenter the United States for the purpose ofengaging in a new commercial enterprise:(i) in which such alien has invested (after the date ofthe enactment ofthe ImmigrationAct of 1990) or, is actively in the process ofinvesting, capital in an amount not less thanthe amount specified in subparagraph (C), and(ii) which will benefit the United States economy and create full-time employment fornot fewer than 10 United States citizens or aliens lawfully admitted for permanentresidence or other immigrants lawfully authorized to be employed in the United States(other than the immigrant and the immigrants spouse, sons, or daughters).Section 610 of the Departments of Commerce, Justice and State, the JUdiciary, and Related AgenciesAppropriations Act of 1993 as amended by section 116 of Pub. Law 105-119 (1998), section 402 ofPub. Law 106-396 (2000) and section 11037 of Pub. Law 107-273 (2002), provides:
  6. 6. Page 3(a) Of the visas otherwise available under section 203(b)(S) of the Immigration andNationality Act (8 U.S.C. 11S3(b)(S)), the Secretary of State, together with theAttorney General, shall set aside visas for a pilot program to implement theprovisions of such section. Such pilot program shall involve a regional center in theUnited States, designated by the Attorney General on the basis of a general proposal,for the promotion of economic growth, including increased export sales, improvedregional productivity, job creation, or increased domestic capital investment. Aregional center shall have jurisdiction over a limited geographic area, which shall bedescribed in the proposal and consistent with the purpose of concentrating pooledinvestment in defined economic zones. The establishment of a regional center may bebased on general predictions, contained in the proposal, concerning the kinds ofcommercial enterprises that will receive capital from aliens, the jobs that will becreated directly or indirectly as a result of such capital investments, and the otherpositive economic effects such capital investments will have.* * *(c) In determining compliance with section 203(b)(S)(A)(iii) of the Immigration andNationality Act, and notwithstanding the requirements of 8 CFR 204.6, the AttorneyGeneral shall permit aliens admitted under the pilot program described in this section toestablish reasonable methodologies for determining the number of jobs created by thepilot program, including such jobs which are estimated to have been created indirectlythrough revenues generated from increased exports, improved regional productivity, jobcreation, or increased domestic capital investment resulting from the pilot program.The regulation at 8 C.F.R. § 204.6(m) provides, in pertinent part:(1) Scope. The Immigrant Investor Pilot Program is established solely pursuant to theprovisions of section 610 of the Departments of Commerce, Justice, and State, theJUdiciary, and Related Agencies Appropriation Act, and subject to all conditions andrestrictions stipulated in that section. Except as provided herein, aliens seeking to obtainimmigration benefits under this paragraph continue to be subject to all conditions andrestrictions set forth in section 203(b)(S) ofthe Act and this section.The regulation at 8 C.F.R. § 204.6(m)(3) provides:Requirements for regional centers. Each regional center wishing to participate in theImmigrant Investor Pilot Program shall submit a proposal to the AssistantCommissioner for Adjudications, which:(i) Clearly describes how the regional center focuses on a geographical region ofthe United States, and how it will promote economic growth through increased
  7. 7. Page 4export sales, improved regional productivity, job creation, and increaseddomestic capital investment;(ii) Provides in verifiable detail how jobs will be created indirectly throughincreased exports;(iii) Provides a detailed statement regarding the amount and source of capitalwhich has been committed to the regional center, as well as a description ofthepromotional efforts taken and planned by the sponsors ofthe regional center;(iv) Contains a detailed prediction regarding the manner in which the regionalcenter will have a positive impact on the regional or national economy in generalas reflected by such factors as increased household earnings, greater demand forbusiness services, utilities, maintenance and repair, and construction both withinand without the regional center; and(v) Is supported by economically or statistically valid forecasting tools,including, but not limited to, feasibility studies, analyses of foreign and domesticmarkets for the goods or services to be exported, and/or multiplier tables.II. AnalysisInitially, the applicant submitted a business plan indicating that the applicant intended to providecapital investment for government capital projects such as a heritage center and the construction ofnew campus buildings for Arizona State University. The business plan also indicates that theapplicant was in discussions with to identify other investment projects.The business plan refers to an online Building Characteristics Table prepared by the U.S.Department of Energy (DOE) and available at(accessed on October 27, 2010 andincorporated into the record ofproceedings). The applicants business plan references the number of"35 Hour per Week Employees per 1,000 Square Feet" for the following activities: education, healthcare, office, public order and safety and service. The numbers under this column are not on the DOEtable referenced. Rather, the plan indicates that the number of 35 hour per week workers wascalculated by dividing the mean hours ofoperation per week by 35 and multiplying by the number ofworkers per 1,000 square feet.The operating agreement for the applicant indicates that the members organized the limited liabilitycompany to develop and sell real estate as well as to "transact any and all lawful business for whichlimited liability companies may be organized."The director issued a request for additional evidence that included the following language:Submit an Economic Analysis and model that shows and describes job creation foreach industrial cluster. Clearly identify the industry cluster. Further, for each
  8. 8. Page 5industrial cluster described in the economic analysis, list the actual job creatingactivities. The analysis must clearly show the inputs to the model, and thecalculations used to determine the jobs that will be created. Also, show how theinvestors money will be sued to create jobs.To support the economic analysis, submit either a hypothetical investment plan foreach industry project type to show how an investment project will be capitalized andoperated in a manner that will create 10 direct and indirect jobs or an actualinvestment plan for a specific proposed project. For multiple industries acombination of hypothetical and actual plans may be submitted. The plan mustclearly identify how the investor funds will flow to the job creating entity and howthe jobs will be created.In response, the applicant submitted an economic analysis prepared by TW+AResearch. The analysis reiterates that the applicant "will focus on capital projects for Arizonagovernmental entities." The analysis adds, however, that the applicant has "identified 14 differentcommercial businesses," with a particular focus on franchises because of the support provided byfranchisors. The commercial areas are subsequently listed as retail, health care, accommodationsand restaurants and automotive services. The analysis indicates that the investments will be madethrough the infusion of capital for public projects and the purchase and management of newcommercial businesses. The analysis states that with respect to government projects, the applicantwill provide the capital and lease the facilities back to the government and that "each business willbe run by either [the applicant] or a professional management firm."As an example, the analysis examines a proposed 65 room motel project. The size of the projectedhotel is 43,968 square feet. Using the same DOE table referenced above, the analysis states:[T]he mean square feet per worker for lodging is 2,074. This means that the 43,968square foot motel would support 21.2 direct employees each of whom work anaverage of 167 hours per week. Rather than one employee working an average of 167hours per week, it is more realistic to have 4.8 (= 167/35) employees each of whomworks 35 hours per week. Thus, the total number of direct employees that would beneeded for the motel are 101.8 (= 21.2 x 4.8).As stated above, we have accessed this chart and incorporated it into the record of proceeding. Itincludes the following regarding lodging:
  9. 9. Page 6Table B1. Summary Table: Total and Means of Floorspace, Number of Workers, andHours of Operation for Non-Mall Buildings, 2003Total Total MeanFloorspace Workers Square MeanNumber of (million inA" Feet per SquareBuildings square Buildings Building Feet per Mean(thousand) feet) (thousand) (thousand) Worker Hours per WeekAllBuildings*................................ 4,645 64,783 72,807 13.9 890 61Lodging.......................................... 142 5,096 2,457 35.8 2,074 167The title of the table references hours of operation and the table itself references mean hours perweek. Thus, the mean hours per week must refer to the hours of operation rather than the meannumber of hours per employee. Given that there are only 168 hours in a week, it cannot beconcluded that the table demonstrates that the mean hours per week per employee is 167. Nothingon the table suggests that the square footage per worker represents square footage per worker duringa given shift only rather than as a function oftotal employment.The director concluded that not adequately explained how it determined that themean hours per week for a lodging employee is 167. The director also determined that the applicanthad not explained the applicants potential impact on the region. Finally, the director concluded thatthe applicant had not explained the type of direct jobs that would be created or provided the jobcreation multipliers based on IMPLAN for each industry identified.On appeal, the applicant submitted a new assessment from The new assessment listsprivate industries not previously mentioned including transportatIOn and finance. The newassessment provides additional detail regarding the economic impact of investment in the region.The new assessment includes Table 9, which lists the employment impacts of representative sub-industries. Table 9 lists the NAICS code, IMPLAN code, direct impact number, indirect impactnumber, induced impact number and total impact number. The total impact number for hotels is 6.8.Table 9 does not explain from where the direct, indirect and induced numbers derive. The applicantdid not submit the local IMPLAN multipliers for Arizona. Most significantly, the applicant does notrespond to the directors concern about how the previous analysis utilized the mean operating hoursas mean employee hours.The regulation at 8 C.F.R. § 204.6(m)(3)(ii) requires the applicant to provide "verifiable" detail as tohow the jobs will be created. Without a sufficient explanation as to why the number of lodgingemployees can be multiplied based on the unrelated data concerning mean operating hours or thelocal IMPLAN multipliers, we cannot conclude that the applicant has provided "verifiable" detail.USCIS is under pressure to accept any projections previously submitted at the regional center stagewhen adjudicating the Form 1-526 petitions filed by individual alien investors provided that there has
  10. 10. Page 7been no material change and absent fraud. 1USCIS will not abdicate its authority to verify that theregional center proposals are reasonable.Addressing these concerns at the regional center stage should increase the likelihood that, absent amaterial change, the aliens who invest in the project will not only be able to obtain conditionalpermanent resident status but also demonstrate compliance with the requirements to removeconditions on their status through the success of their investment in the regional center. While werecognize that the applicant cannot guarantee the proposed regional centers success, it is not in theinterest of USCIS or the aliens who invest in a regional center or consistent with Congressionalintent to improve regional productivity to approve a regional center whose proposal is notdemonstrated to be based on a reasonable economic analysis.Beyond the decision ofthe director, the proposed limited partnership agreement has terms that raiseconcerns. First, the capital contributions section, 3(b), provides that limited partners may contribute"services." The regulation at 8 C.F.R. § 204.6(e) defines capital as "cash, equipment, inventory,other tangible property, cash equivalents" and certain indebtedness. The regulation at 8 C.F.R.§ 204.6(j)(2) does not allow qualifying investor pursuant to section 203(b)(5) of the Act to establishan investment through the contribution of services.In addition, the full amount of the requisite investment must be made available to the business mostclosely responsible for creating the employment upon which the petition is based. Matter of/zummi,22 I&N Dec. 169, 179 (Commr. 1998). Section 3(c) of the limited partnership agreement allowsany amounts "not required for purposes of its business, including reasonable reserves forcontingencies" to be distributed. Section 5(b) provides for the distribution of funds unrelated toprofits, which are discussed in section 5(c). These sections, which provide for distributions of fundsabove and beyond profits, raise concerns that the investors may not be placing the full investmentamount at risk.For the above stated reasons, considered both in sum and as separate grounds for denial, the petitionmay not be approved.ORDER: The appeal is dismissed.I See the March 28, 2009 Employment Creation Immigrant Visa (EB-5) Program Recommendations preparedby the useIS Office ofthe into the record ofproceeding.
  11. 11. Page 1 of 6KSAs for Regional CentersBy Joseph P. Whalen (October 6, 2012)I have recently begun to emphasize some of the finer nuances and more subtleaspects of Regional Center Applications. This latest point has to do with thequalifications of the people and the organizations seeking Regional CenterDesignation. I urge all I-924 Applicants to take stock in what they have to offertheir EB-5 investors and at the same time figure out how to prove to USCIS thatthey know what they are really getting themselves into by seeking Regional CenterDesignation. Once you have determined what you have to offer the overall EB-5Regional Center Program then, by all means, lay it on the table as part of theapplication package. While USCIS has not come forward and said this in astraightforward manner, these have been underlying considerations all along. Readbetween the lines in the AAO Regional Center Decisions starting with the firstDismissal of an Appeal in 2008 through the most recent Affirmance of aTermination in July 2012.Ask yourself which “Knowledge, Skills, and Abilities” (KSAs) were insufficientor totally absent among those denied Regional Center Applicants in order toproduce such proposals that: lacked focus; were vague; were unsupported byreason; contained gross errors in judgment, logic, and/or ordinary common sense;were loaded with very bizarre assumptions; were based on incorrect statisticaldata; demonstrated grand failures to check simple facts; were unrealistic; wereloaded with discrepancies; lacked credibility; and the list of faults could go on andon for several pages. Now ask yourself what you have to offer that is better.Regional Centers and their EB-5 investors need additional clarifications on 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 passtheir “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 Regional
  12. 12. Page 2 of 6Centers 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 quests1(petitions and applications) for visas.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."” Note that this evaluation iscontext specific. See hyperlink 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 tasks involved in the licensure sought. AAOsummed up that “[t]he applicant did not otherwise explain its expertise,knowledge, and experience pertinent to health care occupations.”I have suggested to USCIS changing the I-924 instructions as follows. Under theheading: “What is the Purpose of this Form?” item #1 should be expanded uponby adding more precise language as to the required KSAs. As an example, Ioffered the following as a place to start:“... A critical component of this request entails demonstrating that theapplicant entity possesses the necessary knowledge, skills, and abilities(KSAs) to successfully operate the Regional Center in conformance with itslegally mandated purposes. As per 8 CFR § 204.6(m)(6) “...a regionalcenter must provide USCIS with updated information to demonstrate theregional center is continuing to promote economic growth, improvedregional productivity, job creation, or increased domestic capital investmentin the approved geographic area.” Therefore, the entity must presentevidence that it understands its role and has the required expertise to perform1 This is not a typo. I meant quest and not request. A basic definition of quest is: A longand/or arduous search and/or journey. That describes the EB-5 visa pathway very well!
  13. 13. Page 3 of 6its underlying functions. The preceding is in addition to the specific KSAsneeded for the facilitation of the specifically desired “kinds of commercialenterprises that will receive capital from aliens” as represented by thechosen NACIS codes, in which it seeks licensure to assist EB-5 investorsestablish and/or invest.”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 on narrowly defined statutorydefinitions. The requirements for Regional Centers are much more loosely definedin the statute and any adjustments to the regulations need to maintain the open-ended qualifications currently depicted.That said, very broad possibilities for desired KSAs, loosely defined are the way togo with this. Numerous non-committal and wishy-washy possibilities are best. Isay this because of the huge number of possibilities available under the NAICScodes. The 2012 NAICS Codes structure encompasses well over two-thousandindustry categories. There are too many potential means to satisfy the KSAs for theRegional Center applicants for USCIS 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 thetask(s) at hand. I would not make it as rigid as the Permanent Labor Cert processbut that could serve as a basic frame of reference. I’d tell them to “Define yourneeds and then show us that you have what it takes.”Perhaps OOH or something similar can help them figure it out. Resumes,educational credentials, job descriptions, one’s curriculum vitae, lists ofpublications: books, blogs, or articles and things along those various lines shouldsuffice as evidence for individuals. Established entities might have more anddifferent items to offer such as: annual reports, balance sheets, the ubiquitous taxreturns and associated IRS “schedules” and/or SEC filings—EDGAR printoutsmight be available. Many possibilities exist in over two-thousand industrycategories as defined in NAICS.Let’s take a closer look at what the Department of Labor (DOL) asks about in thelabor certification form itself and some of the associated information used tocomplete it.
  14. 14. Page 4 of 6USCIS regulations forthe I-140 still ask forForm ETA 750,Application for AlienEmploymentCertification, but afterMarch 28, 2005, thecorrect form to applyfor labor certification isthe Form ETA 9089.See 20 C.F.R. § 656.17(a)(l). Regardless ofform numbers orversions, it is theinformation elicitedthat I wish to exploreand borrow from forRegional Centers.Starting with H. 3through H.15, we seethe need to identify thejob and then we see theinformation that DOLfinds pertinent.
  15. 15. Page 5 of 6The needed KSAs aredetermined by varioussources. The DOL hasdevoted a great deal ofeffort into surveys andstudy about what isrequired of manyoccupations. TheBureau of LaborStatistics (BLS)produces theOccupational OutlookHandbook (OOH). Inaddition, the DOLEmployment andTraining Administration(ETA) also has anotherresource. TheOccupationalInformation Network(O*NET) is a databaseof occupationalrequirements andworker attributes. TheO*NET system, using acommon language andterminology to describeoccupationalrequirements,supersedes the seventy-year-old Dictionary ofOccupationalTitles with currentinformation that can beaccessed online.
  16. 16. Page 6 of 6USCIS uses the information that the U.S. EMPLOYER specifies on the ETA9089, in order to classify the position offered within the appropriate statutoryclassification as defined in the INA. In the I-140, Immigrant Petition for AlienWorker, it is the alien beneficiary who must demonstrate the KSAs neededto satisfy the position as classified.EB-5 is a very different employment-based classification. Rather than comingto work in the U.S. for a U.S. employer, the EB-5 alien is coming to be anemployer or if affiliated with a Regional Center, to facilitate employmentcreation for U.S. workers through a pooled investment. Those applicantswho seek Regional Center Designation then become the individuals who needto demonstrate the required KSAs to run the Regional Center; manageinvestments; and select appropriate business ventures that are suitable EB-5compliant investment vehicles. While certain elements among the RegionalCenter-mandated2 KSAs will be quite similar if not exactly the same across allRegional Centers, other aspects will depend on the scope of the RegionalCenter as requested in the I-924.For instance, common requirements will be those needed to track the datarequired for annual reporting to USCIS on the I-924A; due diligence of funds;compliance with other government agencies relating to investments andinternational monetary transactions: SEC regulations, banking regulations,OFAC regulations such as the SDN List; and anything else that is pertinent tothe specific transactions and the “kinds of commercial enterprises that willreceive capital from aliens”. I will not address the common KSAs, I feel thatUSCIS must do that but first USCIS has to clearly define the reportingrequirements and revise the I-924A. I will not get into too many specificsabout the highly variable KSAs that could be required of the myriad of “kindsof commercial enterprises that will receive capital from aliens” because aspreviously stated, the NAICS Codes represent far too many possibilities. I willonly offer limited examples. Taking for example, a mixed-use project thatincludes a restaurant, retail space, and a suite of physicians’ offices; whatmight be helpful KSAs to have among the Regional Center staff and/orconsultants that are brought on board as needed? OOH has “occupationgroups” defined for many different “kinds of commercial enterprises”. Thereis a “healthcare” group and I suppose that many folks involved in the plethoraof occupations have probably worked in physicians’ offices at some point. Sohaving folks with experiences in such settings might help your Business Planwriter on mundane details about what really goes on in such a work setting.The same should be true for restaurants and a wide variety of retail stores.2 These KSAs are mandated by reality and practicality rather than by statute or regulation.