Re-Adjustment of Status by an Alien EntrepreneurThe USCIS Policy Memorandum dated December 11, 2009, and entitled:Adjudica...
have been or will be created within a reasonable period of time as a result of     the alien’s capital investment. The bus...
After the alien adjusts status or is issued an If the new I-526 is approved, S/he may IV on or after the due date for the ...
8 CFR § 216.6 Petition by entrepreneur to remove conditional basis of lawfulpermanent resident status.(a) Filing the petit...
(b) Petition review....      (3) Termination of status for failure to appear for interview. If the alien fails      to app...
basis of such status is not removed by the Service through approval of.................,in the case of an alien entreprene...
Naturalization Service to show by a "preponderance of the evidence" that      one of the conditions for termination of sta...
Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995)      (1) The provisions of former section 241(f) (1) of the Immigration and ...
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On removal of conditions

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On removal of conditions

  1. 1. Re-Adjustment of Status by an Alien EntrepreneurThe USCIS Policy Memorandum dated December 11, 2009, and entitled:Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 andForm I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4and 25.2 (AD09-38), provides a mechanism for an alien entrepreneur who mustmake a significant “material” change in plans to re-adjust their status and begin anew period of conditional status. Procedures for re-adjustment are laid out in theUSCIS Adjudicator’s Filed Manual (AFM), shown below. Re-adjustment issupported by an early BIA Precedent decided in the wake of the creation ofconditional status, albeit in the marriage based realm. INA § 245 (f) is akin to (d).Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991)(1) An alien holding conditional permanent resident status is prohibited by section245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (1988), fromadjusting his status under section 245(a).(2) Section 245(d) of the Act does not prohibit an alien whose conditionalpermanent resident status has been terminated from adjusting his status undersection 245(a).AFM 22.4(c)(4) (G) Eligibility Requirements for the Review of a Form I-526 Petition that Seeks Consideration of a Business Plan that Differs from the Business Plan in a Previously Approved Form I-526 Petition. Some EB-5 aliens may encounter difficulties when unforeseen circumstances cause the achievement of the requisite job creation outlined in the Form I-526 petition to be cast in doubt. This may occur when the job creating capital investment project or commercial enterprise that was relied upon for the approval of the Form I-526 petition fails or otherwise cannot be completed within the alien’s two-year period of conditional residence. The structure of the EB-5 program is inflexible in that the capital investment project identified in the business plan in the approved Form I-526 petition must serve as the basis for determining at the Form I-829 petition stage whether the requisite capital investment has been sustained throughout the alien’s two year period of conditional residency and that at least ten jobs 1
  2. 2. have been or will be created within a reasonable period of time as a result of the alien’s capital investment. The business plan in the Form I-526 petition may not be materially changed after the petition has been filed. In addition, USCIS may not act favorably on requests to delay the filing or adjudication of Form I-829 petitions beyond the timeframes outlined in 8 CFR 216.6(a) and (c). The following “if, then” table explains how an EB-5 investor can seek consideration of a business plan that differs from the business plan in a previously approved Form I-526 petition.If… Then…The alien wishes to change the business S/he may file a new Form I-526 petitionplan from the business plan outlined in a with fee that is supported by the newpreviously filed Form I-526 petition… business plan and addresses all requirements of the I-526 petition.If the new Form I-526 Petition is Filed… Then…Before the alien adjusts status (AOS) or is The new petition, if approved, will be theissued an immigrant visa (IV)… basis for the AOS or the IV and the new business plan will be used as the basis for evaluating EB-5 eligibility at the I-829 stage.After the alien adjusts status or is issued an Upon approval of the new Form I-526IV, but before the due date of the filing of petition, S/he may file Form I-407 with athe I-829 petition (90 days prior to the end Form I-485 adjustment application. Theof the two-year CPR period). prior CPR status will be terminated and the new AOS application will be approved, if otherwise approvable, granting a new two year period of CPR status. The new I-526 petition will be used as the basis when evaluating eligibility at the I-829 stage. If the new Form I-526 is denied, then the alien will have to file the I-829 petition and use the initial Form I-526 petition as the basis for the eligibility evaluation in the Form I-829 petition. 2
  3. 3. After the alien adjusts status or is issued an If the new I-526 is approved, S/he may IV on or after the due date for the filing of request the withdrawal of the initial I-829 the I-829 petition. petition and file an AOS application. The prior CPR status will be terminated and the new AOS application will be approved, if otherwise approvable, granting a new two year period of CPR status. The new I-526 petition will be used as the basis when evaluating eligibility at the second I-829 stage. If the new I-526 is denied then, the initial Form I-829 petition will be adjudicated using the project plan in the initial I-526 petition as the basis for the initial I-829 eligibility evaluation. Note: Dependents will have to file I-407s at the same time as required for the principals as well as Form I-485 applications in order to terminate their CPR status and be “re- adjusted” to CPR anew. The dependents must be eligible to be classified as EB-5 dependents at the time of the filing of new Form I-485 application, i.e. the dependents must be the spouse or unmarried child under the age of 21 years of the EB-5 principal alien. Termination of Conditional StatusThe regulations (shown below, in pertinent part) are written such that noImmigration Judge (IJ) is supposed to ever even try to adjudicate or really review arenewed I-829. Ample opportunities are written into the regulation to allow USCISto cancel any Notice to Appear (NTA) [still referred to in these older regulationsby its former name “order to show cause” or OSC] or in the alternative for an IJ toterminate proceedings and hand the case back to USCIS [still referred to in theseolder regulations as “the Service” (referring to INS)]. IJs and the BIA are likely torubber stamp USCIS Decisions on I-829s, whether the Service Center Director’sDecision or the certified Denial reviewed by the AAO, and just let the alien file achallenge in the U.S. Circuit Court of Appeals. 3
  4. 4. 8 CFR § 216.6 Petition by entrepreneur to remove conditional basis of lawfulpermanent resident status.(a) Filing the petition...... (3) Physical presence at time of filing. .......................... An alien who is not physically present in the United States during the filing period but subsequently applies for admission to the United States shall be processed in accordance with §235.11 of this chapter. ***** (5) Termination of status for failure to file petition. Failure to properly file Form I–829 within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence on a conditional basis shall result in the automatic termination of the aliens permanent resident status and the initiation of deportation proceedings. The director shall send a written notice of termination and an order to show cause to an alien entrepreneur who fails to timely file a petition for removal of conditions. No appeal shall lie from this decision; however, the alien may request a review of the determination during deportation proceedings. In deportation proceedings, the burden of proof shall rest with the alien to show by a preponderance of the evidence that he or she complied with the requirement to file the petition within the designated period. The director may deem the petition to have been filed prior to the second anniversary of the aliens obtaining conditional permanent resident status and accept and consider a late petition if the alien demonstrates to the directors satisfaction that failure to file a timely petition was for good cause and due to extenuating circumstances. If the late petition is filed prior to jurisdiction vesting with the immigration judge in deportation proceedings and the director excuses the late filing and approves the petition, he or she shall restore the aliens permanent resident status, remove the conditional basis of such status, and cancel any outstanding order to show cause in accordance with §242.7 of this chapter. If the petition is not filed until after jurisdiction vests with the immigration judge, the immigration judge may terminate the matter upon joint motion by the alien and the Service. 4
  5. 5. (b) Petition review.... (3) Termination of status for failure to appear for interview. If the alien fails to appear for an interview in connection with the petition when requested by the Service, the aliens permanent resident status will be automatically terminated as of the second anniversary of the date on which the alien obtained permanent residence. The alien will be provided with written notification of the termination and the reasons therefore, and an order to show cause shall be issued placing the alien under deportation proceedings. The alien may seek review of the decision to terminate his or her status in such proceedings, but the burden shall be on the alien to establish by a preponderance of the evidence that he or she complied with the interview requirements. If the alien has failed to appear for a scheduled interview, he or she may submit a written request to the district director asking that the interview be rescheduled or that the interview be waived. That request should explain his or her failure to appear for the scheduled interview, and if a request for waiver of the interview, the reasons such waiver should be granted. If the district director determines that there is good cause for granting the request, the interview may be rescheduled or waived, as appropriate. If the district director waives the interview, he or she shall restore the aliens conditional permanent resident status, cancel any outstanding order to show cause in accordance with §242.7 of this chapter, and proceed to adjudicate the aliens petition. If the district director reschedules that aliens interview, he or she shall restore the aliens conditional permanent resident status, and cancel any outstanding order to show cause in accordance with §242.7 of this chapter. If the interview is rescheduled at the request of the alien, the Service shall not be required to conduct the interview within the 90-day period following the filing of the petition.8 CFR § 235.11 Admission of conditional permanent residents.(c) Expired conditional permanent resident status. The lawful permanent residentalien status of a conditional resident automatically terminates if the conditional 5
  6. 6. basis of such status is not removed by the Service through approval of.................,in the case of an alien entrepreneur (as defined in section 216A(f)(1) of the Act),Form I–829, Petition by Entrepreneur to Remove Conditions. Therefore, an alienwho is seeking admission as a returning resident subsequent to the secondanniversary of the date on which conditional residence was obtained (except asprovided in §211.1(b)(1) of this chapter) and whose conditional basis of suchresidence has not been removed pursuant to section 216(c) or 216A(c) of the Act,whichever is applicable, shall be placed under removal proceedings.However,............... In the case of an alien entrepreneur, removal proceedings maybe terminated and the alien admitted as a returning resident if the requiredForm I–829 is filed by the alien entrepreneur and approved by the Service. There are numerous investor cases since the former INS created the category in 1966. My in-depth survey is posted at: http://www.slideshare.net/BigJoe5/a-survey-of-the-immigrant-investor-visa- 1966-2011-june-27-2011-jw More items of interest are found at: http://www.slideshare.net/BigJoe5Since “conditional residence status” was created originally in 1988, via theMarriage Fraud Amendments, the BIA has set down some precedents as they relateto the marriage-based variety and many but not all basic principles and c onceptsare applicable to the entrepreneur as well. INA § 216A [8 USC § 1186b] entitled“CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN ALIENENTREPRENEURS, SPOUSES, AND CHILDREN” was enacted later in Pub. L.101-649 (Immigration Act of 1990), Title I, Subtitle B, Part 2, Sec. 121 (b)(1) asto defining the status and (2) as to the requirement to file a petition in order to liftconditions .Matter of Lemhammad, 20 I&N Dec. 316 (BIA 1991) (1) In a deportation proceeding where the alien is charged with deportability pursuant to section 241(a)(9)(B) of the Immigration and Nationality, 8 U.S.C. § 1251(a)(9)(B) (1988), as an alien whose status as a conditional permanent resident has been terminated under section 216(b) of the Act, 8 U.S.C. § 1186a(b) (1988), the burden is on the Immigration and 6
  7. 7. Naturalization Service to show by a "preponderance of the evidence" that one of the conditions for termination of status described in section 216(b)(1)(A) of the Act has been met. (2) Original jurisdiction to rule on the merits of an Application for Waiver of Requirement to File Joint Petition for Removal of Conditions (Form I-752) rests only with the appropriate regional service center director, and not the immigration judge.Matter of Mendes, 20 I&N Dec. 833 (BIA 1994) (1) Although the Immigration and Nationality Act provides one ground of deportability where conditional permanent resident status has been terminated, it sets forth three means whereby such termination may take place, each reviewable in deportation proceedings. (2) Different procedural and substantive consequences follow from which section of law the Immigration and Naturalization Service applies in terminating an aliens conditional permanent resident status, including the allocation of the burdens of proof in subsequent deportation proceedings. (3) Where the parties to a marriage have jointly filed a Petition to Remove the Conditions on Residence (Form I-751) under section 216(c)(1) of the Act, 8 U.S.C. § 1186a(c)(1) (1988), but one of the parties withdraws support from the petition before its adjudication, the joint petition shall be considered withdrawn and shall be adjudicated under section 216(c)(2)(A) of the Act. (4) When a respondent in deportation proceedings has not filed an application for a waiver under section 216(c)(4) of the Act and is prima facie eligible for such relief, the proceedings should be continued in order to grant the respondent a reasonable opportunity to file the application before the regional service center director and for the center director to decide the application.There is no “waiver” available for an entrepreneur to get out of meetingconditions BUT a late filing should readily be accepted and the option is availablefor starting over. As discussed above, a re-adjustment option is available. 7
  8. 8. Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995) (1) The provisions of former section 241(f) (1) of the Immigration and Nationality Act, 8 U.S.C. § 1251(f)(1) (1988), do not waive an aliens deportability under former section 241 (a) (9) (B) of the Act, 8 U.S.C. § 1251(a)(9)(B) (1988), because termination of the aliens conditional permanent resident status constitutes a basis for deportability which is separate and distinct from the charge that the alien is "excludable at the time of entry" within the meaning of former section 241(f)(1). (2) In order to preserve an application for relief under section 216(c)(4) of the Act, 8 U.S.C. § 1186a(c)(4) (1988), an alien must request before the immigration judge a review of the Services denial of such application.It is unclear to this writer how the BIA or any Circuit Court of Appeals would viewthe issue exhaustion requirement in these cases. The BIA will utilize de novoreview BUT will it accept new evidence on appeal? What would happen if a case iskicked back from EOIR to USCIS? Will CSC certify it to AAO? Will USCISdesignate this class of denial (I-829s) as mandatory for certification?Matter of Stowers, 22 I&N Dec. 605 (BIA 1999) (1) An alien whose conditional permanent residence was terminated by the Immigration and Naturalization Service under section 216(b) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(b) (1994), before the 90- day petitioning period preceding the second anniversary of the grant of status, may file an application for a waiver under section 216(c)(4) of the Act, 8 U.S.C. § 1186a(c)(4). (2) Where an alien is prima facie eligible for a waiver under section 216(c)(4) of the Act and wishes to have the Service adjudicate an application for such waiver, proceedings should be continued in order to allow the Service to adjudicate the application. Matter of Mendes, 20 I&N Dec. 833 (BIA 1994).The BIA issued some very early Decisions clearly favoring the return of cases tothe former INS (now USCIS). The regulations favor that same course of action andit is still the favored course of action today. 8

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