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Regional Center Application Balancing Acts                       By Joseph P. Whalen (September 14, 2012)    You Can’t Alw...
Collateral estoppel is another way of saying issue preclusion and it is a conceptthat does apply to the immigration contex...
(3) there was a full and fair opportunity to litigate the issue; and      USCIS has been afforded the opportunity to asses...
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Regional Center Application Balancing Acts

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Regional Center Application Balancing Acts

  1. 1. Regional Center Application Balancing Acts By Joseph P. Whalen (September 14, 2012) You Can’t Always Get What You, But Sometimes You Get What You Need!Reasonable reliance based on an expectation of deference in future petition filingsis the optimal outcome of your request for USCIS licensure as a sort of EB-5Agent through Designation as a Regional Center. How do you get it? It is not asimple task so you must make a worthwhile effort to put your best foot forward up-front in the I-924 stage and demonstrate that you have what it takes to followthrough in order to meet the back end burden of proof. I have written plentyalready about the broad concepts involved and some of the minute detailsdemanded. You will have the greatest chance for success if you can reconcile thebroader esoteric aspects with the finely nuanced points. Hence, you must strike abalance between the wide and narrow, the high and low, and make sure that theright hand knows what the left hand is doing!The Regional Center hopeful needs to choose realistic geographic areas of a sizethat it can handle. They also need to select industries in which they have sufficientknowledge, skills, and abilities (KSAs) to have a good chance for success. Ahighly successful vegetable farmer, clothing manufacturer, or computerprogrammer probably does not know a heck of a lot about drilling oil wells, orrunning restaurants, hotels, or nightclub businesses. If you don’t have the neededKSAs, find someone who does and partner with them or hire them to consult. AnI-924 applicant needs to build the supporting documentation package withprofessional help. After all, a Regional Center Project is going to take a lot ofadvance planning because we are talking about projects ranging into tens tohundreds of millions of dollars. A poor quality application package done “on thecheap” will always fail miserably. I usually don’t like to use “absolutes” but in thisinstance I feel safe doing so. Nobody in their right mind will ever approve anamateurish Business Plan and homemade Economic Analysis. Failure to retain thistype of Professional Help may be a sign that you need some other kind ofProfessional Help, if you get the drift! The need for balance goes both ways; this process can be a double-edged sword.USCIS also must strike a balance in working with Regional Centers in settingappropriate limits without placing a chokehold on economic growth regionally ornationally. Excessive demands made by forcing Regional Center applicants tojump through too many hoops runs the risk of transforming that final hoop into anoose if USCIS pushes so far as to venture in the realm of collateral estoppel. Page 1 of 3
  2. 2. 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.Collateral estoppel applies to a question, issue, or fact when four conditions aremet: (1) the issue at stake was identical in both proceedings; (2) the issue was actually litigated and decided in the prior proceedings; (3) there was a full and fair opportunity to litigate the issue; and (4) the issue was necessary to decide the merits.See Montana v. United States, 440 U.S. 147, 153-54 (1979); Clark v. Bear Stearns& Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992).Applied to the EB-5 Regional Center context, it would most likely come into playwhen an Exemplar (or Dummy) I-526 has been submitted as an I-924 “SpecificProject” amendment and approved as to: the shared business plans, economicanalyses, and thoroughly vetted standardized business documents [i.e., agreementsfor partnerships, operations, bylaws, charters, escrow (if any), offering instruments,memorandum agreements (such as for job credit allocation amongst EB-5investors), and the like)]. These shared documents would comprise the bulk of theprima facie evidence packet for the “Specific Project”. Having a USCIS-vetted andprovisionally approved packet as evidence of prima facie eligibility to be submitteden masse by individual EB-5 investors merely supplemented by their individualfinancial and personal documents is a valuable marketing tool and a marketablecommodity. In light of recent problems with “other people’s money” (OPM), itmight be worthwhile submitting as much financial documentation as feasiblepertaining to the non-EB-5 investors in bulk up-front with that dummy I-526.The four estoppel conditions applied to the EB-5 context might look like this: (1) 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. (2) 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. Page 2 of 3
  3. 3. (3) 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. (4) 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.In conclusion, the Regional Center Applicant has to make a sufficient showing thatdemonstrates the required KSAs in order to pass their “audition” through survivingthe rigorous vetting involved in this particular adjudication process. On theflipside, USCIS will have been satisfied that the Applicant has the required KSAsand wherewithal to get the job done.USCIS must make certain demands up-front in order to be confident enough toallow the Regional Center to offer immigration-related services and charge fees forthose services in the tens of thousands of dollars per investor. The RegionalCenter must also demonstrate that it understands its duties and obligations to theEB-5 investors and that it (the RC) has mechanisms in place to follow up on theback end by collecting the necessary data, information, and corroboratingdocumentary evidence along the way.That’s my two-cents, for now.e-mail me at: joseph.whalen774@gmail.com Page 3 of 3

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