Please Be Realistic!


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EB-1, EB-2, EB-3, EB-4, and EB-5 have all got to start out being realistic. This article focuses primarily on the "ability to pay" and the "comprehensive business plan" ans indicators of realistic job offers and credible efforts to make investments that create jobs.

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Please Be Realistic!

  1. 1. Contact: or (716) 604-4233 (cell) or (716) 768-6506 (home) Page 1 Please Be Realistic! 47th Anniversary of Sonegawa & the “Ability to Pay” Requirement & More By Joseph P. Whalen (May 31, 2014) INTRODUCTION Certain things should go without saying, but in my experience I have found that even the most basic of concepts are simply lost on some folks. So, in addition to the title of this piece, I ask: “Who do you think you are fooling?” “Are you serious?” “How stupid do you think I am, or we, or they are?” and last but not least; “Why did you waste your time and mine filing this total piece of garbage?” With that said, let’s go back through some basics again. Employment-based preference immigrant visas come in five basic categories; all have a variety of sub-categories. Those basic five are: 1. EB-1, INA § 203(b)(1) Priority Workers; These folks can self-petition, no permanent labor certification (PERM) is required or job offer is required. A. Aliens with Extraordinary ability; or B. Outstanding Professors and Researcher; or C. Certain Multinational Executives and Managers; or 2. EB-2, INA § 203(b)(2) Aliens who are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability; normally a permanent labor certification (PERM) is required from DOL but some may be eligible for: A. A National Interest Waiver (NIW) as explained inMatter of New York State Department of Transportation (NYSDOT); or B. A Physician Working in a Shortage Area or Veterans Facility; or 3. EB-3, INA § 203(b)(3)(A) Skilled workers, professionals, and other workers: (i) Skilled workers, or (ii) Professionals, or (iii) Other workers; or 4. EB-4, INA § 203(b)(4) Certain Special Immigrants, as described in INA § 101 (a)(27), or as directed via Special Acts of Congress from time to time, or 5. EB-5, INA § 203(b)(5)Employment Creation. These may be “stand-alone, Direct” or “basic EB-5 group, Direct” or “Regional Center-Affiliated” Investments.
  2. 2. Contact: or (716) 604-4233 (cell) or (716) 768-6506 (home) Page 2 REALISTIC JOB OFFERS & ABILITY TO PAY This discussion shall be limited to the 2nd, 3rd, and 5th preference, employment based categories1 listed above. I see the issue as being that these categories have something in common. I believe that they all need to be “realistic” at the time of filing the visa petition2in order to be accorded that filing date as a “priority date” for visa application (DS-230) or adjustment of status (AOS) (USCIS I-485) purposes. With regard to most EB-2, all EB-3, and certain EB-4 visa petitions, here is AAO’s current view.3 “Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153 (b)(3)(A)(iii), provides for the granting of preference classification to other qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. To be eligible for approval, the petitioner must demonstrate its continuing ability to pay the proffered wage from the priority date onward. See 8 C.F.R. § 204.5 (g)(2). The ETA Form 9089 was accepted on March 27, 2012, the priority date. The proffered wage as stated on the ETA Form 9089 is $36,836.80 per year. The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an ETA Form 9089 labor certification application establishes a priority date for any immigrant petition later based on the ETA Form 9089, the petitioner must establish that the job offer was realistic as of the priority date and that the offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142, 144 (Acting Reg'l Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2).4 In evaluating whether a job offer is realistic, United States Citizenship and Immigration Services (USCIS) requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality of the circumstances affecting the petitioning business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg' l Comm'r 1967).” 5 1 Certain 4th preference subcategories do encompass ATP but they are the exception among special immigrants. When ATP does apply to an EB-4 case, those I-360 cases can be treated just like the EB2 and EB-3I-140 cases. 2 Admittedly, EVERY application and petition filed needs to be “realistic” as opposed to frivolous BUT these categories have specific precedents to back up the agency in this requirement. 3 AAO = USCIS’ Administrative Appeals Office; USCIS = U.S. Citizenship and Immigration Services. 4 EB-4 Religious Worker petitioner’s ATP is governed by 8 C.F.R. § 204.5(m)(7)(xiii). 5 From AAO Non-Precedent MAY132014_01B6203.pdf, page 2.
  3. 3. Contact: or (716) 604-4233 (cell) or (716) 768-6506 (home) Page 3 The preceding excerpt sums it up succinctly. Great Wall is generally cited as the source of the phrase “ability to pay”, brought the issue to the forefront, and painted it as a true necessity 6in proving that the job offer was for real and not some bogus attempt to get a relative or friend into the U.S. fraudulently. Even worse would be if a bogus job offer came from a fake employer or a trumped up employment situation by some “agent or broker” who was being paid. It makes no difference whether someone is doing a favor, being bribed and just giving in to greed or, blatantly demanding payment; fraud is fraud. USCIS, Legacy INS before it, and the Department of Labor before that, etc..., have been dealing with fraud for over a century. The government has developed methods for detecting fraud and remains vigilant toward it. In that vein, the agency finds its weapons where it can within the statute. Turning a molehill into a mountain may be the best or only weapon or tool that they have with which to combat a particular type of fraud. Sometimes, one has to settle for what they can get and take it from wherever they can find it. By latching on to a certain key phrase and explaining it, expounding upon it, and/or extrapolating a logical sequence based in reasonable inferences draw from it, then form and substance can harmoniously exist. Sonegawa, which pre-dates Great Wall, by a decade, is the notable, quotable, go-to case for qualitative vs. quantitative analysis within the “totality of the circumstances” analytical approach. That approach is utilized when the numbers alone don’t support a finding that the petitioner has and/or had the “ability to pay” the proffered wage. That “ability” had to have been there “at the time of filing” and continue through time of entry with a visa, or adjustment of status to LPR, domestically, collectively “time of admission”. As far as I can find, Sonegawa is likely the precedent that extricated the “ability to pay” “requirement” from the statute but the terminology was a little different7 as seen in this excerpt: “… [T]he District Director, Los Angeles … denied the petition on May 31, 1967 in that it had not been established that the petitioner could meet the wage requirements of the position certified by the Secretary of Labor.” Sonewaga at 612. 6 The ATP issue as handled in Great Wall had become too engrained within INS and then USCIS. Sonegawa fell by the wayside but has seen a resurgence in the last few years. AAO has reiterated the qualitative methods and principles embodied in Sonegawa and a variety of Federal Court case decisions as well as Great Wall that confirm the various quantitative approaches. 7 I am the first to admit that I could be wrong about that assumption but,I cannot spend any more time researching the issue at this time.
  4. 4. Contact: or (716) 604-4233 (cell) or (716) 768-6506 (home) Page 4 The concept and requirement of the “petitioner” having had the “ability to pay” and be otherwise qualified, was extended to any successor- in-interest or “substitute petitioner” in an employment-based visa petition, as applicable. That extension was done in Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm. 1987), which held in pertinent part: (2) Where a successorship in interest is recognized, the petitioner bears the burden of proof to establish eligibility in all respects as of the date the application for labor certification as originally accepted for processing by the Department of Labor. As is commonplace in immigration law, the law has steadily changed over the years. One such change introduced the concept of portability for long pending cases. That change in the law allowed the beneficiary to change jobs provided that, the original petition was valid to begin with, and the new job started out and remains valid and comparable. See Matter of Al Wazzan, 25 I&N Dec.359 (AAO 2010), which held: (1) Although section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j)(2000), provides that an employment-based immigrant visa petition shall remain valid with respect to a new job if the beneficiary’s application for adjustment of status has been filed and remained unadjudicated for 180 days, the petition must have been “valid” to begin with if it is to “remain valid with respect to a new job.” (2) To be considered “valid” in harmony with related provisions and with the statute as a whole, the petition must have been filed for an alien who is “entitled” to the requested classification and that petition must have been “approved” by a U.S. Citizenship and Immigration Services (“USCIS”) officer pursuant to his or her authority under the Act. (3) Congress specifically granted USCIS the sole authority to make eligibility determinations for immigrant visa petitions under section 204(b) of the Act. (4) An unadjudicated immigrant visa petition is not made “valid” merely through the act of filing the petition with USCIS or through the passage of 180 days. APPROVEABLE WHEN FILED & MERITORIOUS IN FACT A couple of other phrases have cropped up which mean almost the same as “eligible at time of filing”. “Approveable when filed” is very often associated with the INA § 245(i) “grandfather clause”. The phrase is now found in the implementing regulations at 8 C.F.R. § 204.10 (a)(3). There are two particular precedents that I like to recommend to anyone who wants to understand that concept. The first case comes from the Fourth Circuit Court of Appeals. Another phrase and concept that that case addresses is “meritorious in fact”. The case also sheds light on the approach
  5. 5. Contact: or (716) 604-4233 (cell) or (716) 768-6506 (home) Page 5 that is needed in re-assessing the merits of the original case. However, in this Fourth Circuit case the underlying petition was an employment-based I-360 for a 4th preference special immigrant religious worker. Ogundipe v. Mukasey, 541 F.3d (4th Cir. 2008) does not contain a succinct numbered holding like most administrative precedents do but, it stated, in pertinent parts: (1) “…a visa petition is meritorious in fact for purposes of grandfathering under 8 C.F.R. § 1245.10 if, based on the circumstances that existed at the time the petition was filed, the beneficiary of the petition qualified for the requested classification.” (2) “An alien seeking to adjust his status may prove that a previously denied visa application was meritorious in fact by making an appropriate factual showing in removal proceedings, subject to any applicable evidentiary and procedural rules.” (3) “We find nothing in the applicable statutes or regulations that prevents an IJ in removal proceedings from considering other evidence that a petition was approvable when filed, even if that evidence was never submitted in conjunction with the original petition.” [As noted by dissent on review of the majority opinion, but this would be qualified by the last phrase of (2) above.] (4) “This provision contemplates that evidence other than that actually submitted in support of the petition might be considered for purposes of determining whether an alien is grandfathered.” The BIA has also provided some guidance on the concept of what is “meritorious in fact” while assessing and addressing the bona fides of a marriage being used in an attempt to grandfather some beneficiaries under INA § 245(i). A father and his son sought to be grandfathered for adjustment of status under INA § 245(i) based on the father’s unproven (and seemingly fake) marriage to a prior petitioning spouse. The prior I-130 was denied for failing to demonstrate that the first marriage was “not fraud” in the face of a lack of evidence of its validity and conflicting stories during interviews. Matter of JARA-RIERO and JARA-ESPINOL, 24 I&N Dec. 267 (BIA 2007) held: An alien seeking to establish eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000), on the basis of a marriage-based visa petition must prove that the marriage was bona fide at its inception in order to show that the visa petition was “meritorious in fact” pursuant to 8 C.F.R. § 1245.10(a)(3) (2007).
  6. 6. Contact: or (716) 604-4233 (cell) or (716) 768-6506 (home) Page 6 You might beasking how I am going to tie together a case about a religious worker who moved to a different petitioning church and a suspected sham marriage. It’s not really that big of a stretch. The concepts as to the marriage having been “meritorious in fact” as well as the evidence needed to prove the “bona fide” nature of themarriage or the “realistic” nature of the job offer along with its evidentiary requirements are comparable and pertinent in both cases. Studying one helps to understand the other even better. I have written about these concepts and these cases previously, see here. You might also be asking how I am going to tie all of this in with EB-5. Well, let’s get to that right now. REALISTIC in EB-5 = REASONABLE, PROBABLE, & CREDIBLE8 All EB-5 petitions are ultimately based on some sort of plan or another. It might not always be a good plan and sometimes it isn’t even a written plan but even a vague idea can constitutea “plan”. Fortunately for those folks who seek EB-5 visas, there is some guidance in this area. We have very little actual guidance from the statutes. INA § 203(b)(5) [8 USC § 1153(b)(5)] gives us only a few cold, hard, yet key elements. There have to be certain end results within a given time frame. The intending immigrant’s plans to reach those end results and a rough schedule need to be presented when the minimum investment amount has not yet been expended and/or when the minimum number of qualifying jobs for qualified and authorized U.S. workers have not yet been created. That basic requirement to submit a comprehensive business plan is found in the implementing regulations at: 8 C.F.R. § 204.6(j)(4). The potential elements for the plan are as variable as are the plethora of potential business ventures that exist. However, certain broad parameters have been laid out in precedent via Matter of Ho, 22 I&N Dec.206 (AAO 1998). The business plan (BP) needs to be comprehensive, detailed, and most of all credible. To be considered credible, the plan must also be reasonable. Before it can be considered sufficient for EB-5 purposes, the BP must be formulated and that begins with examining the possibilities to find what can be viewed as plausible. After due consideration and market research and sufficient due diligence, if the plan is good and the location for it is suitable, then the plan is looking at a better probability of success. If the probability is high enough then the BP will likely be seen as fully credible for EB-5 purposes. 8
  7. 7. Contact: or (716) 604-4233 (cell) or (716) 768-6506 (home) Page 7 I have previously written about the art of manipulation of information and data in an inductively reasoned credible plan or the preparation and presentation of virtually any benefits request. 9 While Ho gives a laundry list of common elements that the USCIS adjudicator should expect to find in a comprehensive BP that is only part of the process. While such plans will invariably contain numbers, don’t be fooled into believing that merely examining numbers alone will suffice to make a reasoned decision on the plan’s credibility. Invariably, the quantitative methods alone are not enough for EB-5 purposes. I dare say that they never have been and never will be. There are numerous nonquantifiable facts and factors to consider in a comprehensive business plan. The subjective elements or components, data, and information are much more suitably examined via a qualitative analysis and evaluation. The assessment of these cases is done in an inquisitorial adjudicative frame work. Building the plan and the entire application or petition package with this end game in mind can go a long way towards defeating the “Culture of NO!” This comprehensive approach spans across many different benefits and relief request types. Please use it! That’s my two-cents, for now. Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor 1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218 Phone: (716) 604-4233 or (716) 768-6506 E-mail: web or DISCLAIMER: Work is performed by a non-attorney independent business consultant. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultationwith my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NAICS Code: 611430 Professional and Management Development Training 9 SEE: eeb5-purposes and or-rather-than-quantitative-analysis and administrative-law-in-an-inquisitorial-system