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The Method to my Madness versus the Madness of my Methods

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Hot off the presses! March 7, 2012 just before Midnight in Buffalo, NY. Updated (corrected typos) March 8, 2012.

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The Method to my Madness versus the Madness of my Methods

  1. 1. The Method to My Madness versus the Madness of My Methods By Joseph P. Whalen (March 7, 2012) Introduction & BackgroundThe approach I always took towards learning was innate and intuitive. I was notone of those kids who tried to write down every word the teacher said. Instead, Ilistened very attentively and tried to get the point and merely write that down.In test-taking, I sometimes had a problem “showing the work”. I actually learned(in order to avoid being accused of cheating) to go back and work out the problemstep-by-step after I got the answer and wrote it out. I sometimes ran out of timeand teachers just assumed that remaining correct answers were “good guesses”. Inthe real world of Regional Centers, if you present a lousy case, offer conclusorystatements, fail to explain assumptions and a sufficient nexus, or give a poorresponse to an RFE, USCIS won’t cut you a break, you get denied or terminated.Later in life, I used that attentive, innate, and intuitive focus; and my go back andfill in the blanks approach very constructively. When I became an adjudicator, Iapplied that thought process to “isolate pertinent issues” and discard the rest. I usedthat ability somewhat in reverse because I had to cut through the extraneousmaterials submitted and find the pertinent facts in the often-voluminous evidencesubmitted with applications and petitions. In essence, I would perform apainstaking dissection and distillation of the documentation submitted as evidencein that case. As the AAO has characterized it, I too discard hyperbolic assertionsin the kitchen sink approach to case presentation for the useless clutter that theyare. Practitioners would help their clients’ cases move along faster via betterselection and preparation of evidence and improved overall case presentation. From Learning Approach to Teaching/Training MethodIn my approach to teaching or training, I use a hybrid of the Socratic Method andattempt to make training more like seminars and less like lectures. Even when I amdoing most of the talking, I talk to people and make eye contact (I want to makesure they haven’t glazed over) rather than talk at or talk down to them. I often tryto get folks to select and address the underlying issues and find or devise the most Page 1 of 7
  2. 2. direct and substantive approach to making an argument. That deeply focusedapproach is the one I implore pupils to employ in the structuring and preparation ofany case for presentation. That, in turn, boils down to making very carefulselections of evidence to submit in support of an application or petition andpresenting it in a straightforward and logical manner. Borrow From The Best (of What You Know) & Forget The RestIn building a case for Regional Center Designation, I often use concepts from therealm of naturalization proceedings as a guide when training practitioners. I cutmy (INA & 8 CFR) teeth as a naturalization adjudicator. I find this approach helpsindividuals to isolate the proper evidence to support their assertions by usingsomething many are familiar with already.For instance, I ask: “How do you clearly demonstrate that the alien (LPR) who hasmany foreign trips but is now seeking naturalization meets the physical presencerequirement of being present inside the U.S. for at least half of their statutoryperiod?” They answer: “Make a list of the foreign trips and do the math.” I ask:“How do you prove the dates that are entered on that list?” They at first lookpuzzled. Then, eventually, most answer: “Show the passport pages with stampsshowing the dates.” That is usually the answer and you can stop right there.However, what if the applicant lost their passport or had to surrender the passportwhen it was recently renewed. What do you do then? A wide variety ofpossibilities exists and it may require following more than just one avenue ofinquiry1 in a particular case. One can look around for itinerary information,boarding passes, ticket stubs, credit card statements (for tickets and hotel rooms),or even to the extreme last resort of filing a FOIA request with CBP for entry-exitinformation. Yuck! They then tell their naturalization-applicant client that theyshould have thought about this issue much sooner because now it is a big hassle forthem to gather all the evidence.1 See: Avenues of Inquiry in Historical Archaeology by Kathleen Deagan in Advances in Archaeological Methodand Theory Vol. 5, (1982), pp. 151-177 Published by: Springer; Stable URL: http://www.jstor.org/stable/20210055 Page 2 of 7
  3. 3. Now, I ask the Regional Center Sponsor: “How will you demonstrate job creationfor your EB-5 investors when they file their I-829s?” Some scratch their heads andjust a few might say: “That’s the investor’s problem.” To that I say: “Don’t let thedoor hit you in the ass on your way out. Good-bye.”Others, still scratching their heads and possibly shrugging their shoulders, maybegin to babble monosyllabically and in an interrogative tone mutter: “Umm.”“Hmmm.” “I-9s?” “W-2s?” “Quarterly Tax Reports?” and a few might say “Idunno!” I decide that these folks need help and endeavor to help them figure it outin an “as applied” manner. It is not easy or straightforward but it is necessary.Let the interrogation begin! We have to figure out precisely what facts and/orassumptions underlie the job predictions/projections that were utilized in order tocome up with that job count figure which the Regional Center pledged to its EB-5investors when it took their money. They wish that they had thought about thisissue much sooner. There is no possibility of filing a FOIA for your own oldforgotten memories, forget about grilling your consultant years after the fact! A Word Of Caution —> Failing to Plan = Planning to Fail!!!!It is easiest to figure out how the lifting of conditions (I-829) adjudication will besupported with probative and credible evidence regarding “indirect” job creationwhen preparing the economic analysis near the beginning of the process. In orderto identify the actual evidence that will be required at the end of the immigrationprocess, you must clearly isolate and define which facts and/or assumptions youwill eventually need to “prove to the satisfaction of” USCIS. Then track thatinformation and collect documentation for use as evidence two to four years later.You will need to meet the “preponderance of the evidence standard” in most 2cases. Indirect job projections must be based on clearly defined assumptions. Atthe end of the process you need to establish that the conditions precedentunderlying the stated assumptions have been fulfilled or are on the cusp of being2 When actual “EB-5 Direct Jobs” are used in the count or to support the projections of additional “EB-5 IndirectJobs” then those few direct jobs require “specific evidence” described in the regulations (I-9, W-2, Quarterly statetax reports, company payroll records, etc...). Page 3 of 7
  4. 4. achieved within a reasonable period of time. You need to know exactly what actualphysical evidence at the end will support the assertions made up front. I call this aback-end burden of proof but others may describe it differently. How about ex postfacto (after-the-fact)? How about substantiation or verification? How aboutputting your money where your mouth is? [Mere lip-service won’t work!] Identification & Clear Statement of All Assumptions Supporting Job Counts 3Did you base indirect job projections/predictions on a base-level of realidentifiable jobs? Did you use these real identifiable jobs as input in aneconometric model where it asked for new “direct” jobs? Whose payroll arethose employees on? Does the EB-5 alien have an ownership/equity interest in that“employer”? If they are not on the alien’s payroll then those employees representthe actual employees of some third-party. As such, those third-party employeesrepresent an assumption used in the economic analysis for EB-5evidentiarypurposes. The base-level “direct-like” jobs that were used as “input” in aneconometric model that was used to produce an economic analysis might moreappropriately be viewed as “indirect” for EB-5 purposes. In other words, you arepresenting something that will need both justifications up-front in the business planand associated economic analysis and verification of facts supporting fulfillment ofassumptions via a back-end burden of proof.“Assumption”= “identifiable third-party employees=base-level EA direct jobs input” Demonstrating Sufficient Nexus Throughout An Overall ProjectAre those third-party employees who are being counted for EB-5 purpose, actuallyworking in a business that has a direct connection (palpable nexus) to the overallproject in which the Regional Center is committed? Are they really a part of theproject? Are they really within reach? Are they so distant, peripheral, and/ordisconnected that there is no realistic nexus, which is easily perceptible to anyrational mind? Are they the employees of a “customer” rather than the employeesof a “partner (even a distant partner) in the project”? In this sense, I am not3 See: "Within the Scope" Analysis Of the EB-5 Regional Center Is Analogous To AC21s "SameOr Similar Occupation Classification" Determination by Joseph P. Whalen in Immigration Dailyat: http://www.ilw.com/articles/2012,0104-whalen.shtm especially footnote 9. Page 4 of 7
  5. 5. confining the inclusion of only partners that can be traced on paper. Papers can befaked. A realistic nexus is not something that can be faked. The concept of a fakeor false nexus is an oxymoron. A nexus can be: strong vs. weak, or clear vs. vague,or sufficient vs. insufficient, etc....While nexus cannot be faked it may be difficult to explain or hard to see. If anyrelationship is supported by fake paperwork, then that is fraud, which may alsoqualify as criminal behavior. However, it is absolutely possible for a realrelationship, which is not supported by a paper trail to be clearly seen with thenaked eye. In summary, nexus can be straightforward and obvious, complex,convoluted, or tenuous. In any of those cases, it is there to a degree. Exactly atwhat point it is too tenuous to count towards EB-5 indirect job totals is fact-specific and case-specific. It will ultimately be a finding-of-fact by the adjudicatorbased upon the evidence presented as to whether it counts or not. If one appealssuch a finding-of-fact as determined by CSC to AAO, AAO is likely to perform ade novo review of the case. That means that they will look at it from scratch. AAOwill accept additional evidence on appeal as allowed by the I-290B forminstructions, which have been incorporated by, and given the force of, regulation.Upon receipt of a denial you have 30 days to file and are automatically allowed tostate that you will take another 30 days to submit additional evidence, however,you may ask AAO for an extension if need be and you submit a clear explanationfor needing an extension. It is up to the person seeking the benefit to meet theirburden of proof. See INA § 291 [8 U.S.C. § 1361] Timing and Level of Commitment to the Overall ProjectWhat is the extent of the Regional Center’s as well as their EB-5 aliens’commitment to and involvement in the overall project? Will the base-level jobsnot be created absent the completion of the overall project? What part is played bythe various project participants in the overall project? Where does the palpableconnection end between a specific business entity and the overall project? Whichassociated entities are or are not really participants in the overall project withwhich the Regional Center has affiliated itself? (How closely associated are theentities?) Defining the role of the EB-5 component is one way to make your casefor inclusion, but it is not the only factor to consider. See 8 CFR § 204.6(g) for anexplanation of jobs being allocated only to those EB-5 aliens who need them for Page 5 of 7
  6. 6. evidence in support of their cases. Even more important than the role is thetiming of the Regional Centers’ commitment to the overall project. RegionalCenters cannot hang back, shop around for a done deal, and try to enter acompleted project through the backdoor. Establishing Reasonable Methodologies to Prove Indirect Jobs & NexusWhen responding to a Tenant-Occupancy RFE, please remember that the RegionalCenter exists within a larger “Pilot Program”. The Pilot Program embraces“economic growth” through “increased domestic capital investment, improvedregional productivity, increased revenues (originally through increased exports),and job creation”. Any of those “statutorily mandated contexts” can be used as abasis for establishing “reasonable methodologies” for estimating “indirect jobcreation as a result of” the particular overall project affiliated with the RegionalCenter, or with which the Regional Center is affiliated. Congress did not performa wholesale importation of concepts from econometric theory. Congress statedthat the agency must allow the participants in this Pilot Program to establish themethodologies. USCIS is not authorized to impose methodologies, but it candetermine if it accepts something as “reasonable”. 8 USC § 1153 NOTE Pilot Immigration Program * * * * * “(c) In determining compliance with section 203(b)(5)(A)(iii)[(ii)] of the Immigration and Nationality Act [8 U.S.C. 1153(b)(5)(A)(iii)[(ii)]], and notwithstanding the requirements of 8 CFR 204.6, the Secretary of Homeland Security 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  [Laundry list of potential nexus for Economist to work within!]  revenues generated from increased exports,  improved regional productivity,  job creation, or  increased domestic capital investment  resulting from the pilot program.” Page 6 of 7
  7. 7. Carpe Diem! Seize the Day! Opportunity is Knocking, Will you answer the door?The new USCIS economists and business analysts have to be taught about EB-5and the Pilot Program. Take this as an opportunity to teach them to think outsidetheir particular boxes or “comfort zones”. Embrace the challenge!Here are some additional tools for your use:http://www.slideshare.net/BigJoe5/within-the-scope-analysis-of-the-eb5-regional-center-01012012-jpwhttp://www.slideshare.net/BigJoe5/rc-affilated-eb5-structure-optionhttp://www.slideshare.net/BigJoe5/depictions-of-eb5-money-to-jobs-nexushttp://www.slideshare.net/BigJoe5/what-is-the-immigration-pilot-programhttp://www.slideshare.net/BigJoe5/how-many-kinds-of-nexus-can-you-find-within-eb5http://www.slideshare.net/BigJoe5/eb-5-newsletter-march-2012http://www.slideshare.net/BigJoe5/transparent-complexity-to-achieve-flexibility-in-eb-5-plans-and-proposals-05242011http://www.slideshare.net/BigJoe5/business-plan-and-the-economic-model-and-evidence-considerations-for-an-i-924-may-17-2011http://www.slideshare.net/BigJoe5/essentials-of-a-regional-center-proposal-public-copy(Get it before I take it down!)http://www.slideshare.net/BigJoe5/a-survey-of-the-immigrant-investor-visa-1966-2011-june-27-2011-jw (Get itbefore I take it down!)http://www.slideshare.net/BigJoe5/due-diligence-in-eb5http://www.slideshare.net/BigJoe5/ntas-for-unsuccessful-eb5sJoseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor51 Ashton Place | Buffalo, NY 14220-2107 Phone: (716) 604-4233 (E-mail is preferred!)E-mail: joseph.whalen774@gmail.com or Silver.SurferEB5@gmail.com or twitter@JoeWhalen1On the web: http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surferDISCLAIMER: Work is performed by a non-attorney independent business consultant. It is the clients responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I serve RegionalCenter Principals and their counsel. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators incomplex issues within immigration and nationality law. I do not prepare forms, write business plans, or create economic analyses. I do reviewthem for clients prior to submission and suggest corrections and/or modifications. Page 7 of 7

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