Proposed agenda items for next EB-5 engagment submitted 9-15-2012


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Let's see if USCIS will address any of these items. What do you think the chances are of that happening? Please e-mail me with your thoughts.

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Proposed agenda items for next EB-5 engagment submitted 9-15-2012

  1. 1. Proposed Agenda Items & Questions for EB-5 Stakeholder Engagement on Tuesday, October 16, 2012, from 3:00 – 4:30 pm (Eastern) From: Joseph P. Whalen (September 15, 2012) joseph.whalen774@gmail.comSubmitted via email to in a Word document. All submissionsshould be received by the Public Engagement Division by Monday, September 17, 2012.1.) The statute authorizing EB-5 Immigrant Investor program speaks to more thanjust the Regional Center. I would like USCIS to discuss the broader aspects of the“Pilot Program”. The Senate authorized a 3-year extension on August 2, 2012,and the House joined them on September 13, 2012, the President may have alreadysigned the re-authorization bill, which includes extensions of three additionalprograms in addition to this one, by the time anyone at USCIS sees this message.Perhaps if USCIS could establish a better framework and broader understanding ofthe overall program, the next re-authorization might stand a better chance of beinga permanent enactment of the program rather than a mere extension as a pilot.2.) The content and style of Regional Center “Notices” could probably use somedeeper thought and standardization. There are several different considerations thatI would appreciate USCIS at least examining.  There needs to be a clearly worded “Basic Designation” akin to an “Operating License” which spells out the Program Requirements applicable across the board to ALL Approved Regional Centers. It will take some thoughtful consideration but it a necessary next step.  The I-924 is used for multiple OTHER purposes. The results of those different purposes should be broken down and categorized. As a start, there will be amendments that are limited to: o An EXEMPLAR or “Dummy” I-526 alone; or o Matters of overall operational parameters or “scope”  Alone, such as, but not limited to: • Geographic area, • Economic Methodology and/or Modeling, • NAICS Codes/“Kinds of Commercial Enterprises”, • Structural changes to the Regional Center “entity’s” operations, business structure, personnel, record-keeping, due diligence/investor vetting/partner vetting, • Substantive Partnerships and Agreements (the lead applicant was perhaps a University and will now partner with a state/county/municipal government agency or private developer), etc... Page 1 of 4
  2. 2. • Investment approaches and associated mechanisms and written instruments are being significantly altered, or  Parameters/scope, jointly with a “specific project” EXEMPLAR I-526.3.) Regional Centers and their EB-5 investors need additional clarifications as tothe broad concept of NEXUS. I see nexus as a palpable connectivity such asthrough interdependent and codependent business relationships. I have writtenabout this subject matter and submitted numerous suggestions to USCIS alreadyand ask that you look at that previously submitted material again.4.) Regional Centers and their EB-5 investors need additional clarifications as tothe broad concept of the poorly named “Tenant Occupancy” methodology. Theconcept truly entails meeting a need and creating specific spaces for new and/orexpanding business. These specific spaces would usually be considered asassumptions and/or conditions precedent for demonstrating indirect jobs. Ioften use the examples of “mall tenants’ employees” equally with “factoryworkers”.5.) Regional Centers and their EB-5 investors need additional clarifications as tothe broad concept of Feasibility and Justification for a specific commercialdevelopment project. In other words, it must be repeatedly stressed that theBusiness Decisions Must Come First! Does it make sense to develop, build, and/or expand this property or business, in this place, at this time, and for thispurpose?6.) Regional Centers and their EB-5 investors need additional clarifications as tothe broad concept of “Mixed-Use Developments”. Unfortunately, in the real estatebrokers’ world this might more readily mean condos and c-op plus a fewtownhouses. In other words, a mix of different types of residences and maybe, justmaybe a small convenience store and Laundromat or dry-cleaner to serviceresidents. For EB-5 purposes, residential real estate in a mixed-use is peripheral ifit is there at all. Commercial “Mixed-Use” such as shopping center withrestaurants, a cinema, and perhaps some professional office space is more alongthe lines of EB-5 qualifying.7.) Regional Centers and their EB-5 investors need additional clarifications as tothe broad concept of the two different meanings and contexts for the wordEXEMPLAR. Page 2 of 4
  3. 3.  Exemplar or Hypothetical Project: The generic “kind of commercial enterprise” that is desired for inclusion in a Basic Designation as a Regional Center as part of the operational parameters or scope of the Regional Center. This is also sometimes called a “Straw Man”: o A "straw-man proposal"1, also known as an Aunt Sally, is a brainstormed simple proposal intended to generate discussion of its disadvantages and to provoke the generation of new and better proposals. Often, a straw man document will be prepared by one or two people prior to kicking off a larger project. In this way, the team can jump start their discussions with a document that is likely to contain many, but not all the key aspects to be discussed. As the document is revised, it may be given other edition names such as the more solid-sounding "stone-man", "iron-man", and so on. ***Not to be confused with a straw man argument. o A straw man 2, known in the UK as an Aunt Sally, is a type of argument and is an informal fallacy based on misrepresentation of an opponents position.[1] To "attack a straw man" is to create the illusion of having refuted a proposition by replacing it with a superficially similar yet unequivalent proposition (the "straw man"), and refuting it, without ever having actually refuted the original position.  Exemplar or Dummy I-526: As noted in (2) above, this would be submitted as a variety of I-924 Amendment. Included in this filing should most likely be the shared: o business plans, o economic analyses, and o thoroughly vetted standardized business documents [i.e., agreements for partnerships, operations, bylaws, charters, escrow (if any), offering instruments, memorandum agreements (such as for job credit allocation amongst EB-5 investors), and the like)]. o These shared documents would comprise the bulk of the prima facie evidence packet for the “Specific Project”. o Having a USCIS-vetted and provisionally approved packet as evidence of prima facie eligibility to be submitted en masse by individual EB-5 investors merely supplemented by their individual financial and personal documents is a valuable marketing tool and a marketable commodity.1 Page 3 of 4
  4. 4. o In light of recent problems with “other people’s money” (OPM), it might be worthwhile submitting as much financial documentation as feasible pertaining to the non-EB-5 investors in bulk up-front with that dummy I-526.8.) Collateral estoppel is another way of saying issue preclusion and it is a conceptthat does apply to the immigration context. Certain interim proceedings includefact-finding and the settlement of a variety of different “hypertechnical” matters,issues, points, methodologies, approaches, mechanisms, and/or agreements.The four collateral estoppel conditions applied to the EB-5 context might look likethis: (A) the issue at stake was identical in both proceedings; The provisionally approved shared investment instruments, offering and agreement documents have not been materially altered or changed in such a manner as to fall out of EB-5 compliance and/or negate eligibility. (B) the issue was actually litigated and decided in the prior proceedings; The Matter of Ho-compliant Business Plan/Model and the Economic Analysis based upon it, including job creation predictions and other pertinent facts and factors as well and were submitted as an “EXEMPLAR I-526 Petition” with an adjudication conducted and concluded. (C) there was a full and fair opportunity to litigate the issue; and USCIS has been afforded the opportunity to assess the plans, analysis, and other documents and any concerns have been addressed via RFEs, NOIDS, or communications with the adjudications team and/or Decision Board; and the applicant has fully responded to the satisfaction of USCIS. (D) the issue was necessary to decide the merits. The above has resulted in a Provisional Approval contingent upon successful effectuation of the plan, with the proviso that any necessary variance due to outside forces remains primarily and principally within the approved operational parameters or “scope” of the Regional Center.9.) Regional Centers and their EB-5 investors need additional clarifications as tothe broad 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 pass their“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. Page 4 of 4