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Still learning from the recent AAO Regional Center Appeal Dismissals

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Still learning from the recent AAO Regional Center Appeal Dismissals

  1. 1. Still Learning From The Recent AAO Regional Center Appeal Dismissals By Joseph P. Whalen (September 14, 2012)In this second installment, I will offer some observations on the AAO non-precedent Regional Center Appeal Dismissal of November 23, 2010. This caseoffers an opportunity to discuss relevance and a brief history lesson on the relevantregulations. Counsel challenged the law, regulations, policy decisions, andexpressed a desire to see a rulemaking in this area. That’s all interesting subjectmatter and I agree to a point. That said, what the hell has that got to withaddressing substandard evidence in the instant case? Obfuscation will not curepoor quality business plans and inadequate economic analysis. The director determined that the economic analyses provided were insufficient. On appeal, the applicant asserts that the pertinent regulations are ambiguous, inconsistent and have been superseded by statute and that U.S. Citizenship and Immigration Services (USCIS) improperly issued a policy memorandum that continues to violate congressional intent rather than promulgate new regulations consistent with that intent. Regardless of whether the promulgation of new regulations would be useful both to adjudicators and regional center applicants, it remains that we are bound by the current regulation at 8 C.F.R. § 204.6(m), which has not been overturned by a federal court or, for the most part, Congress. Other than Congress explicit reversal of the programs prior focus on exports, Congress has not expressly negated the provisions set forth at 8 C.F.R. § 204.6(m).I shall answer Counsel’s charge that the “regulations” “have been superseded”.The EB-5 visa was the result of a Congressional adoption of an earlier regulatorylabor certification exemption. Congress created a statutory visa category at INA §203(b)(5) [8 USC § 1153(b)(5)] via IMMACT90. The EB-5 visa is the basiccomponent around which the Pilot Immigration Program was built. The program isfound in a statute which is separate and apart from the INA. Public Law 102-395 isone in a long line of “Appropriations Acts” which is routinely re-authorized. ThePilot Program was into existence in the 1993 version so is continually referencedas the source. The Pilot Program was embodied in § 610 of the original statute butit has been placed into the United States Code along with the INA. You will findthe authorizing statutory authority at 8 USC § 1153 Note: Pilot ImmigrationProgram. Guess what, it just got re-authorized AGAIN! The Senate had alreadypassed a bill on August 2, 2012, and the House did its part on September 13, 2012.The vote in the House was 412 yeahs, 3 nays, and 14 not voting. The Presidentmay sign it before you even read this. Page 1 of 4
  2. 2. You might be asking something like, “ Why is he telling me all this?” I am tellingyou this to show that the EB-5 visa pre-dates the Pilot Program and the RegionalCenters by several years. The original regulations at 8 CFR § 204.6 onlyaddressed the original stand-alone visa. The Regional Center had not been createdyet when the first regulations were written. In the initial statute creating the PilotProgram and Regional Centers, Congress specifically stated on § 610: (c) In determining compliance with section 203(b)(5)(A)(iii) of the Immigration and Nationality Act, and notwithstanding the requirements of 8 CFR 204.6, the Attorney General shall permit aliens admitted under the pilot program described in this section to establish reasonable methodologies for determining the number of jobs created by the pilot program, including such jobs which are estimated to have been created indirectly through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.The specific regulation referenced was that which existed as of the date ofenactment. Since this very statute created the Pilot Program, none of theregulations that specifically address the Pilot Program and Regional Centers hadbeen written yet. Therefore, this reference does not have any meaning whatsoeveras to the Regional Center specific regulations. None of them may be ignored. Inaddition, Congress added the "general proposal" language and the final sentence ofsubparagraph (a) discussing "general predictions" in 2002, after the regulation at 8C.F.R. § 204.6(m)(3) was promulgated. (a) Such pilot program shall involve a regional center in the United States, designated by the Attorney General on the basis of a general proposal, for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have.The initial Regional Center regulations demanded, inter alia, clear descriptions,“verifiable detail”, “detailed statements”, “detailed predictions”, “valid forecastingtools”, and things such as “feasibility studies”. These terms were chosen based onthe “reasonable methodologies” language from subparagraph (c) and theseconcepts were left intact in both the statute and the regulations during the 2002amendment. In conclusion, on that point, Counsel’s argument was not wellresearched. Page 2 of 4
  3. 3. With all the preceding freshly churned up in your head, consider this simple truth:“General” does not equal “vague”. Counsel also asserts that 8 C.F.R. § 204.6(m)(3) conflicts with 8 C.F.R. § 204.6(m)(7), which states than aliens seeking benefits under section 203(b)(5) of the Act through an investment in a regional center must demonstrate that his or her investment will create jobs indirectly and 8 C.F.R. § 204.6(j)(4)(iii),which states that such an alien may demonstrate indirect job creation through reasonable methodologies. We do not contest that the regional center proposal may be more general that a Form I-526, which must be based on a specific investment. We find no conflict, however, among the regulations cited by counsel. The regulation at 8 C.F.R. § 204.6(j)(4)(iii) states that the alien may utilize reasonable methodologies "including those set forth in paragraph (m)(3) of this section." Thus, the regulation clearly anticipated that the regional center proposal would set forth the methodologies on which the alien would then be able to rely in submitting the Form I-526 petition.To the above I will add that a Regional Center applicant needs to think in terms ofprogressive case development. The Regional Center defines its own scope whichUSCIS eventually accepts and may in fact help to define through the back-and-forth exchange of RFEs or NOIDs and the applicant’s response or rebuttalevidence. Looking to the future, direct discussions with the adjudicators as well asthe newly forming Regional Center “Decision Board” is likely to add a completelynew dimension to the way in which the operational parameters, which is anotherway of expressing scope, will be formed and settled up-front.I will leave you with this statement and the accompanying excerpt and conclusionbelow. The Regional Center sets the stage upon which its investments mustperform according to the Pilot Program demands of achieving statutorilyprescribed results. While we acknowledge that the applicant need not submit an exemplar project and need only submit a general proposal, the petitioner has not provided a sufficient general proposal. The record is absent any multipliers or tools that will be utilized to project direct, indirect and induced jobs for all of the industries identified in the general proposal. If the gasification plant is submitted as an exemplar, the inconsistencies in the number of direct jobs and the failure of the analysis submitted on appeal to explain the discrepancies between the original and final projections for the coal gasification plant alone prevents USCIS from considering this proposal credible.In conclusion, this record is absent tools that will be utilized to project jobs; andthe inconsistencies, the failure of the analysis, and discrepancies prevents USCISfrom considering this proposal credible. That’s my two-cents, for now. Page 3 of 4
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