Questions & Comments Submitted for the USCIS EB-5 Immigrant Investor Program Stakeholder Engagement on July 28, 2016 at 1 p.m. (Eastern)
Page 1 of 4 Tuesday, June 28, 2016
Questions & Comments Submitted for the USCIS
EB-5 Immigrant Investor Program Stakeholder Engagement
To be held on July 28, 2016 at 1 p.m. (Eastern)
from Joseph P. Whalen
USCIS apparently has at least two Program Offices that are in the process of
formulating revised regulations. In addition to IPO, AAO has had its rulemaking on and
off the regulatory agenda since the early 1990s when it was renamed Administrative
Appeals Office, as opposed to Administrative Appeals Unit (AAU), during a
reorganization of I.N.S. under A.G. Janet Reno in 1994. Even though AAO and USCIS
management have publicly declared that a notice of proposed rulemaking (NPRM) is in
the works, it continually fails to materialize.
The EB-5 Program would benefit from a rule that required exhaustion of an
administrative appeal process. Unfortunately, the wording in current EB-5 and AAO
regulations allows an unhappy alien self-petitioner to challenge the denial of an I-526 in
the U.S. District Court directly thus bypassing AAO. Likewise, an unhappy Regional
Center applicant may file a challenge to the denial of an I-924 directly in the U.S. District
Court thus bypassing AAO also.
Rumor has it that AAO is contemplating adding an exhaustion requirement to its
regulations, unless a particular statute demands or commands other treatment. Rumors,
however, are not good enough. Action is long past due.
Will IPO include administrative appeal exhaustion requirements for EB-5 Visa
Self-Petitioners and Regional Center Applicants in its own rulemaking, regardless
of whether AAO moves in that direction or not?
Although INA § 216A [8 U.S.C. § 1186b] provides for review or renewal of an I-829
petition before an Immigration Judge in Removal Proceedings, it is unlikely to happen or
succeed if it does. While the regulation currently bars the appeal of an I-829, the statute
does not absolutely demand that course of action. IPO might want to confer with AAO on
whether to include an administrative appeal to AAO before relinquishing the case to an
Q2: Will USCIS add an I-829 appeal process through IPO’s EB-5 rulemaking?
For easy reference when considering Q2:
INA § 216A [8 U.S.C. §1186b] Conditional permanent resident status for certain alien
entrepreneurs, spouses, and children
* * * * *
(b) Termination of status if finding that qualifying entrepreneurship improper
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(1) In general
In the case of an alien entrepreneur with permanent resident status on a conditional basis
under subsection (a), if the Attorney General [Secretary through USCIS] determines,
before the second anniversary of the alien's obtaining the status of lawful admission for
permanent residence, that-
(A) the investment in the commercial enterprise was intended solely as a means of
evading the immigration laws of the United States,
(B)(i) the alien did not invest, or was not actively in the process of investing, the
requisite capital; or
(ii) the alien was not sustaining the actions described in clause (i) throughout the
period of the alien's residence in the United States; or
(C) the alien was otherwise not conforming to the requirements of section
1153(b)(5) of this title,
then the Attorney General [Secretary through USCIS] shall so notify the alien involved
and, subject to paragraph (2), shall terminate the permanent resident status of the alien
(and the alien spouse and alien child) involved as of the date of the determination.
(2) Hearing in removal proceeding
Any alien whose permanent resident status is terminated under paragraph (1) may request
a review of such determination in a proceeding to remove the alien. In such proceeding,
the burden of proof shall be on the Attorney General [Secretary through USCIS] to
establish, by a preponderance of the evidence, that a condition described in paragraph (1)
(c) Requirements of timely petition and interview for removal of condition
(1) In general
In order for the conditional basis established under subsection (a) for an alien
entrepreneur, alien spouse, or alien child to be removed-
(A) the alien entrepreneur must submit to the Attorney General [Secretary
through USCIS], during the period described in subsection (d)(2), a petition which
requests the removal of such conditional basis and which states, under penalty of
perjury, the facts and information described in subsection (d)(1), and
(B) in accordance with subsection (d)(3), the alien entrepreneur must appear for a
personal interview before an officer or employee of the Service [USCIS] respecting
the facts and information described in subsection (d)(1).
(2) Termination of permanent resident status for failure to file petition or
have personal interview
(A) In general
In the case of an alien with permanent resident status on a conditional basis under
subsection (a), if-
(i) no petition is filed with respect to the alien in accordance with the
provisions of paragraph (1)(A), or
(ii) unless there is good cause shown, the alien entrepreneur fails to appear
at the interview described in paragraph (1)(B) (if required under
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the Attorney General [Secretary through USCIS] shall terminate the permanent
resident status of the alien (and the alien's spouse and children if it was obtained
on a conditional basis under this section or section 1186a [INA § 216] of this title)
as of the second anniversary of the alien's lawful admission for permanent
(B) Hearing in removal proceeding
In any removal proceeding with respect to an alien whose permanent resident
status is terminated under subparagraph (A), the burden of proof shall be on the
alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B).
8 C.F.R. § 216.6 Petition by entrepreneur to remove conditional basis of lawful
permanent resident status.
* * * * *
(2) Denial. If, after initial review or after the interview, the director denies the petition, he
or she shall provide written notice to the alien of the decision and the reason(s) therefor,
and shall issue an order to show cause why the alien should not be deported from the
United States. The alien's lawful permanent resident status and that of his or her spouse
and any children shall be terminated as of the date of the director's written decision. The
alien shall also be instructed to surrender any Permanent Resident Card previously issued
by the Service. No appeal shall lie from this decision; however, the alien may seek review
of the decision in deportation proceedings. In deportation proceedings, the burden shall
rest with the Service to establish by a preponderance of the evidence that the facts and
information in the alien's petition for removal of conditions are not true and that the
petition was properly denied.
“8 C.F.R. § 204.6(e) Definitions” have been points of contention in various APA
challenges to certain I-526 denials in U.S. District Courts. As is their ilk, immigration
practitioners have attempted to “push the limits” of the definitions of “invest”, “capital”,
“new”, and “commercial enterprise”, just to name a few. Some of the interpretations have
become difficult to understand. It might be a worthwhile exercise to engage EB-5
stakeholders in an iterative dialogue in advance of proposing any official changes to these
definitions in order to make the official notice-and-comment process quicker.
It might be a worthwhile exercise to define the word “entity” as it relates to an I-924
Q3: Will USCIS be adding, updating, or altering any EB-5 related definitions? For
example, will USCIS please define “entity” (or a similar term) to represent a
qualified applicant for I-924 filings?
Q4: Has USCIS conferred with any other federal agencies on the process by which
TEAs are determined & designated? If yes, please elaborate. Will States lose
authority to designate TEAs? If not, why not?
Page 4 of 4 Tuesday, June 28, 2016
“Pooled Investments” comprise the vast majority of EB-5 investments, and the vast
majority of those are through Regional Centers. Large development projects may, from
time to time, run into issues that alter plans and timelines. In such situations, it might be
necessary for the RC/Developer to present some type of “Follow-Up” or “Hindsight”
Report in order to explain what actually transpired. Presenting such a Report would
probably be easier for IPO to process on a macro-level as opposed to during the
adjudications of perhaps hundreds of individual I-829 petitions. This situation might be
suitable to filing one I-924 Amendment as an I-829 Exemplar seeking a Provisional
Approval, leaving only the money trail to verify in the individual I-829 adjudications,
Q5: Will USCIS consider allowing the filing of “Exemplar I-829 Petitions”?
Members of Congress and various self-appointed “watchdog” groups are concerned about
foreign “ownership” of Reginal Centers. In addition, there are concerns about the buying
and selling of Regional Centers. I am of the opinion that it’s improper & illegal to transfer
Regional Center designation by selling the business that obtained that RC-Designation!
Q6: Will USCIS clarify exactly who may obtain Regional Center designation and what
would be required in order to be a “successor-in-interest” in the RC context when
the underlying business is sold? Also, will USCIS please affirmatively state when
an amendment must be filed (a.) following or (b.) preceding a change in principal
vs. mere personnel change in larger entity?
Q7: Will USCIS please clarify the required knowledge, skills, and abilities (KSAs) that
need to be demonstrated in order to obtain Regional Center Designation?
Q8: Will USCIS memorialize in regulation the functions and highlights to be expected
in “EB-5 site visits”?
Q9: Will USCIS consider ameliorative rules for investors who are victims of fraud?
Q10: Will USCIS be either codifying or quashing any policy or precedent
interpretations? If yes, which ones?
This list of comments & questions is being made public at:
http://www.slideshare.net/BigJoe5 and possibly elsewhere.