Terminated Entrepreneurs in Removal Proceedings                       By Joseph P. Whalen (November 5, 2012)No EB-5 invest...
alien spouse, and alien child (as defined in subsection (f)(2)) shall be     considered, at the time of obtaining the stat...
(B) *****                 (i) the alien did not invest, or was not actively in the                 process of investing, t...
(2) Termination of permanent resident status for failure to filepetition or have personal interview.-     (A) In general.-...
the petition are true with respect to the qualifying                  commercial enterprise.            (B) Removal of con...
throughout the period of the aliens residence in the                 United States; and           (B) is otherwise conform...
be considered to have been admitted as an alien lawfully admitted forpermanent residence and to be in the United States as...
initiation of deportation proceedings. The director shall send a writtennotice of termination and an order to show cause t...
deportation proceedings. The alien may seek review of the decision toterminate his or her status in such proceedings, but ...
*         *        *         *        *(d) Decision — .....                            *      *     *     *     *     (2) ...
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Terminated entrepreneurs in removal proceedings

  1. 1. Terminated Entrepreneurs in Removal Proceedings By Joseph P. Whalen (November 5, 2012)No EB-5 investor wants to have to ever even think about thepossibility that their investment might fail, their I-829 may bedenied (and likely certified to AAO), being served with an NTA 1,and facing an Immigration Judge. In all honesty, I don’t thinkanyone does, not even USCIS wants to let that happen. I believethat USCIS is so tough up-front for a variety of reasons butespecially because the potential outcome I just described is sodevastating to the EB-5 investor and family. In addition, it is “badfor business” and by that, I mean not only the EB-5 Program butalso the American worker and regional or local economies.While some denounce USCIS for “forcing” investors to re-file newI-526s in better investments, others denounce USCIS for“coddling” these phony-baloney investors. In reality, I believe thatthat the re-filing process is an attempt to be as fair as possible tothe would-be immigrants while seeking to allow more potentiallyjob-creating investments to occur as well as spare folks who havemade an honest effort to spur job creation and who have gainedreal equities in the U.S. from being kicked-out.Which laws guide and control the process when this unfortunatesituation occurs? Let’s take a look!INA § 216A [8 U.S.C. § 1186b] CONDITIONAL PERMANENTRESIDENT STATUS FOR CERTAIN ALIEN ENTREPRENEURS,SPOUSED, AND CHILDREN(a) In general.- (1) Conditional basis for status.-Notwithstanding any other provision of this Act, an alien entrepreneur (as defined in subsection (f)(1)),1NTA = Notice To Appear. This paper (form I-862) is filed by any of the three DHSimmigration components to initiate Removal Proceedings. Page 1 of 10
  2. 2. alien spouse, and alien child (as defined in subsection (f)(2)) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section. (2) Notice of requirements.- (A) At time of obtaining permanent residence.-At the time an alien entrepreneur, alien spouse, or alien child obtains permanent resident status on a conditional basis under paragraph (1), the [*Secretary of Homeland Security] shall provide for notice to such an entrepreneur, spouse, or child respecting the provisions of this section and the requirements of subsection (c)(1) to have the conditional basis of such status removed. (B) At time of required petition.-In addition, the [*Secretary of Homeland Security] shall attempt to provide notice to such an entrepreneur, spouse, or child, at or about the beginning of the 90-day period described in subsection (d)(2)(A), of the requirements of subsection (c)(1). (C) Effect of failure to provide notice.-The failure of the [*Secretary of Homeland Security] to provide a notice under this paragraph shall not affect the enforcement of the provisions of this section with respect to such an entrepreneur, spouse, or child.(b) Termination of status if finding that qualifying entrepreneurshipimproper.- (1) In general.-In the case of an alien entrepreneur with permanent resident status on a conditional basis under subsection (a), if the [*Secretary of Homeland Security], before the second anniversary of the aliens 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, Page 2 of 10
  3. 3. (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 aliens residence in the United States; or (C) the alien was otherwise not conforming to the requirements of section 203(b)(5) , then the [*Secretary of Homeland Security] 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 [*Secretary of Homeland Security] to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.(c) Requirements of Timely Petition and Interview for Removal ofCondition.- (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 [*Secretary of Homeland Security], 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 ...[USCIS]... respecting the facts and information described in subsection (d)(1). Page 3 of 10
  4. 4. (2) Termination of permanent resident status for failure to filepetition 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 subsection (d)(3)), the [*Secretary of Homeland Security] shall terminate the permanent resident status of the alien (and the aliens spouse and children if it was obtained on a conditional basis under this section or section 216) as of the second anniversary of the aliens lawful admission for permanent residence. (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).(3) Determination after petition and interview.- (A) In general.-If- (i) a petition is filed in accordance with the provisions of paragraph (1)(A), and (ii) the alien entrepreneur appears at any interview described in paragraph (1)(B), the [*Secretary of Homeland Security] shall make a determination, within 90 days of the date of the such filing or interview (whichever is later), as to whether the facts and information described in subsection (d)(1) and alleged in Page 4 of 10
  5. 5. the petition are true with respect to the qualifying commercial enterprise. (B) Removal of conditional basis if favorable determination.-If the [*Secretary of Homeland Security] determines that such facts and information are true, the [*Secretary of Homeland Security] shall so notify the alien involved and shall remove the conditional basis of the aliens status effective as of the second anniversary of the aliens lawful admission for permanent residence. (C) Termination if adverse determination.-If the [*Secretary of Homeland Security] determines that such facts and information are not true, the [*Secretary of Homeland Security] shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien entrepreneur, alien spouse, or alien child as of the date of the determination. (D) Hearing in removal proceeding.-Any alien whose permanent resident status is terminated under subparagraph (C) 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 [*Secretary of Homeland Security] to establish, by a preponderance of the evidence, that the facts and information described in subsection (d)(1) and alleged in the petition are not true with respect to the qualifying commercial enterprise.(d) Details of Petition and Interview.- (1) Contents of petition.--Each petition under subsection (c)(1)(A) shall contain facts and information demonstrating that the alien (A) ***** (i) invested, or is actively in the process of investing, the requisite capital; and (ii) sustained the actions described in clause (i) Page 5 of 10
  6. 6. throughout the period of the aliens residence in the United States; and (B) is otherwise conforming to the requirements of section 203(b)(5) . (2) Period for filing petition.- (A) 90-day period before second anniversary.-Except as provided in subparagraph (B), the petition under subsection (c)(1)(A) must be filed during the 90-day period before the second anniversary of the aliens lawful admission for permanent residence. (B) Late petitions for good cause.-Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of the [*Secretary of Homeland Security] good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A). (C) Filing of petitions during removal.-In the case of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A), the Attorney General may stay such removal proceedings against an alien pending the filing of the petition under subparagraph (B). (3) Personal interview.-The interview under subsection (c)(1)(B) shall be conducted within 90 days after the date of submitting a petition under subsection (c)(1)(A) and at a local office of ...[USCIS], designated by the [*Secretary of Homeland Security], which is convenient to the parties involved. The [*Secretary of Homeland Security], in the [*Secretary of Homeland Securitys] discretion, may waive the deadline for such an interview or the requirement for such an interview in such cases as may be appropriate.(e) Treatment of Period for Purposes of Naturalization.-For purposes oftitle III, in the case of an alien who is in the United States as a lawfulpermanent resident on a conditional basis under this section, the alien shall Page 6 of 10
  7. 7. be considered to have been admitted as an alien lawfully admitted forpermanent residence and to be in the United States as an alien lawfullyadmitted to the United States for permanent residence.(f) Definitions.-In this section: (1) The term "alien entrepreneur" means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) under section 203(b)(5) . (2) The term "alien spouse" and the term "alien child" mean an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the spouse or child, respectively, of an alien entrepreneur. (3) The term `commercial enterprise includes a limited partnership.8 CFR § 216.6 Petition by entrepreneur to remove conditionalbasis of lawful permanent resident status. * * * * *(a) Filing the petition — * * * * * (3) Physical presence at time of filing. A petition may be filedregardless of whether the alien is physically present in the United States.However, if the alien is outside the United States at the time of filing, he orshe must return to the United States, with his or her spouse and children, ifnecessary, to comply with the interview requirements contained in the Act.Once the petition has been properly filed, the alien may travel outside theUnited States and return if in possession of documentation as set forth in§ 211.1(b)(1) of this chapter, provided the alien complies with the interviewrequirements described in paragraph (b) of this section. An alien who is notphysically present in the United States during the filing period butsubsequently applies for admission to the United States shall beprocessed in accordance with § 235.11 of this chapter. * * * * * (5) Termination of status for failure to file petition. Failure toproperly file Form I-829 within the 90-day period immediately precedingthe second anniversary of the date on which the alien obtained lawfulpermanent residence on a conditional basis shall result in theautomatic termination of the aliens permanent resident status and the Page 7 of 10
  8. 8. initiation of deportation proceedings. The director shall send a writtennotice of termination and an order to show cause to an alien entrepreneurwho fails to timely file a petition for removal of conditions. No appealshall lie from this decision; however, the alien may request areview of the determination during deportation proceedings. Indeportation proceedings, the burden of proof shall rest with the alien toshow by a preponderance of the evidence that he or she complied with therequirement to file the petition within the designated period. The directormay deem the petition to have been filed prior to the second anniversary ofthe aliens obtaining conditional permanent resident status and accept andconsider a late petition if the alien demonstrates to the directorssatisfaction that failure to file a timely petition was for good cause and dueto extenuating circumstances. If the late petition is filed prior tojurisdiction vesting with the immigration judge in deportationproceedings and the director excuses the late filing and approves thepetition, he or she shall restore the aliens permanent residentstatus, remove the conditional basis of such status, and cancel anyoutstanding order to show cause in accordance with § 242.7 of thischapter. If the petition is not filed until after jurisdiction vests withthe immigration judge, the immigration judge may terminate thematter upon joint motion by the alien and ...[USCIS]. (6) Death of entrepreneur and effect on spouse and children. If anentrepreneur dies during the prescribed two-year period of conditionalpermanent residence, the spouse and children of the entrepreneurwill be eligible for removal of conditions if it can be demonstratedthat the conditions set forth in paragraph (a)(4) of this section have beenmet.(b) Petition review — * * * * * (1) Authority to waive interview..... * * * * * (3) Termination of status for failure to appear for interview. If thealien fails to appear for an interview in connection with the petition whenrequested by ...[USCIS], the aliens permanent resident status will beautomatically terminated as of the second anniversary of the date onwhich the alien obtained permanent residence. The alien will be providedwith written notification of the termination and the reasons therefore, andan order to show cause shall be issued placing the alien under Page 8 of 10
  9. 9. deportation proceedings. The alien may seek review of the decision toterminate his or her status in such proceedings, but the burden shall beon the alien to establish by a preponderance of the evidence thathe or she complied with the interview requirements. If the alienhas failed to appear for a scheduled interview, he or she may submit awritten request to the district director asking that the interview berescheduled or that the interview be waived. That request should explainhis or her failure to appear for the scheduled interview, and if a request forwaiver of the interview, the reasons such waiver should be granted. If thedistrict director determines that there is good cause for grantingthe request, the interview may be rescheduled or waived, as appropriate. Ifthe district director waives the interview, he or she shall restore thealiens conditional permanent resident status, cancel anyoutstanding order to show cause in accordance with § 242.7 of thischapter, and proceed to adjudicate the aliens petition. If the districtdirector reschedules that aliens interview, he or she shall restore the aliensconditional permanent resident status, and cancel any outstanding order toshow cause in accordance with § 242.7 of this chapter. If the interview isrescheduled at the request of the alien, the Service shall not be required toconduct the interview within the 90-day period following the filing of thepetition. * * * * *(c) Adjudication of petition. * * * * * (2) If derogatory information is determined regarding any of theseissues or it becomes known to the government that the entrepreneurobtained his or her investment funds through other than legal means (suchas through the sale of illegal drugs), the director shall offer the alienentrepreneur the opportunity to rebut such information. If thealien entrepreneur fails to overcome such derogatory information orevidence the investment funds were obtained through other than legalmeans, the director may deny the petition, terminate the aliens permanentresident status, and issue an order to show cause. If derogatory informationnot relating to any of these issues is determined during the course of theinterview, such information shall be forwarded to the investigations unit forappropriate action. If no unresolved derogatory information isdetermined relating to these issues, the petition shall beapproved and the conditional basis of the aliens permanentresident status removed, regardless of any action taken orcontemplated regarding other possible grounds for deportation. Page 9 of 10
  10. 10. * * * * *(d) Decision — ..... * * * * * (2) Denial. If, after initial review or after the interview, the directordenies the petition, he or she shall provide written notice to the alien of thedecision and the reason(s) therefor, and shall issue an order to show causewhy the alien should not be deported from the United States. The alienslawful permanent resident status and that of his or her spouse and anychildren shall be terminated as of the date of the directors writtendecision. The alien shall also be instructed to surrender any PermanentResident Card previously issued by ...[USCIS]. No appeal shall lie fromthis decision; however, the alien may seek review of the decision indeportation proceedings. In deportation proceedings, the burdenshall rest with ...[USCIS] to establish by a preponderance of theevidence that the facts and information in the aliens petition for removalof conditions are not true and that the petition was properly denied.Order to Show Cause (OSC) is the old name for the document issued toplace an alien in Deportation Proceedings. Notice to Appear (NTA) is thecurrent name of the document to place an alien in Removal Proceedings.The statute and regulations allow quite a lot of discretion for USCIS torefrain from rushing to placing an alien entrepreneur in RemovalProceedings. Also, even if an NTA has been issued, it can be cancelled or anIJ can quite easily hand the case back to USCIS. But before any of that willcome into play, USCIS will allow the re-filing of a new I-526 to start theprocess over and IF an I-829 is to be denied due to the investment failing,that case is most likely going to be certified 2 to AAO before any NTA isissued. In the event that a Regional Center Project fails, at least onerepresentative case from among the effected investors will most likely makeit to AAO (formerly AAU) before any NTA is issued. That last statementexcludes those individual cases that involve lawful fund issues.2§ 103.4 Certifications. (a) Certification of other than special agricultural worker and legalization cases —(1) General. TheCommissioner or the Commissioners delegate may direct that any case or class of cases be certified to another Serviceofficial for decision. ............ 2) Notice to affected party. When a case is certified to a Service officer, the official certifying the case shallnotify the affected party using a Notice of Certification (Form I-290C). The affected party may submit a brief to theofficer to whom the case is certified within 30 days after service of the notice. If the affected party does not wish tosubmit a brief, the affected party may waive the 30-day period. ****** (5) Certification to AAU. A case described in paragraph (a)(4) of this section may be certified to the AAU. Page 10 of 10

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