Commentary written and edited by
Boyd F. Campbell, Attorney and Civil Law Notary
and continuously via the World Wide Web since 1994
© Boyd F. Campbell, All Rights Reserved
Read and comment on Boyd Campbell's EB-5 immigrant investor blog: eb5greencard.blogspot.com
Read and comment on immigration policy on Boyd Campbell's personal blog: boydcampbell.blogspot.com
How the 2013 immigration bill affects the EB-5 Program
Makes permanent the Immigrant Investor Pilot Program, also known as the
EB-5 regional center program. It has periodically
by Congress for periods of years since 1992. Last year Congress extended
the Immigrant Investor Pilot Program until September 30, 2015.
Recaptures unused immigrant visa numbers from prior fiscal years.
Eliminates per country quotas for employment-based immigrant visa numbers. This has significant implications for China, which is predicted to reach its quota of employment-based immigrant visas in fiscal year 2014.
the employment based immigrant visa numbers for spouses and children of
principal EB-5 applicants, this means that visa numbers which are currently capped at 10,000
for the EB-5 Program would be allocated solely to principal
Adds immigrant visas numbers for the EB-5 program as a whole.
includes recapture of unused immigration visas from past fiscal years, making
the Immigrant Investor Pilot Program,
also known as
the EB-5 regional center program, permanent (it was originally introduced as a
pilot program in 1992), eliminates per country quotas for visa numbers (the Department of
State predicted that China would reach the quota in 2014),
more immigrant visa
numbers specifically for the EB-5 Program and the exemption of spouses and
children from the employment-based immigrant visa numbers of principal applicants
(which is capped at 10,000 visas).
These provisions to make the program a permanent one will have the effect of improving the U.S. economy by attracting foreign investors and creating jobs for U.S. workers. The bill also encourages immigrant entrepreneurs of high-tech start-ups and small businesses via a new visa platform that emulates similar programs in other countries. By allocating more visas for foreign entrepreneurs and investors, Congress is moving U.S. immigration policy in the right direction, taking its cue from the Canadian immigration system, which reformed its approach to immigration in 2001, giving more immigrant visa numbers to highly skilled and highly educated foreigners.
To read a summary of the bill's provisions prepared by the American Immigration Lawyers Association, CLICK HERE.
New regulation for waivers of unlawful presence in effect
Citizenship and Immigration Services (USCIS) has finalized its regulation
concerning the adjudication of waivers for people who need to go through consular
processing and would be subject to
presence ground of inadmissibility. As of March 4, 2013, the rule, “Provisional
Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives”
is in effect, and USCIS will begin
adjudicating provisional waiver applications. Applicants will use a new Form
I-601A. The filing fee is $585.
The rule allows certain immediate relatives of U.S. citizens who are in the United States without lawful status to request waiver of their unlawful presences and establishes a process in which the USICS will adjudicate these waivers before the applicants leave the United States for their immigrant visa interview in their home country. Please note that the regulations do not address all the issues that may arise when waiver filings commence.
To qualify for a provisional unlawful presence waiver, the immediate relative must:
• Be immediate relatives of U.S. citizen (spouses, parents of adult U.S. citizens at least 21 years of age, and minor children);
• Be present in the U.S at the time of filing the waiver application and for biometrics exam;
• Be inadmissible only based on unlawful presence, and not subject to any other grounds of inadmissibility upon departure and at the time of the consular interview;
• Have an approved I-130 or I-360 petition and have paid the immigrant visa processing fee;
• Depart the U.S to obtain an immigrant visa abroad; and
• Prove extreme hardship to a qualifying U.S. citizen spouse or parent if the waiver is denied.
USCIS Director Alejandro Mayorkas indicated that USCIS may consider expanding eligibility for the provisional waiver after it reviews the impact the program has had on its operations.
Notwithstanding the eligibility criteria listed in the rule, a provisional unlawful presence waiver will not be granted if:
• USCIS has “reason to believe” that the alien may be subject to inadmissibility grounds other than unlawful presence: criminal activity, fraud or misrepresentation to entry or attempted entry, without inspection following a prior period of unlawful presence in the U.S. in excess of one year;
• Applicant is younger than 17;
• Applicant does not have a case pending with DOS based on the approved I-130 immediate relative petition or has not paid the immigrant visa processing fee;
• Applicant had been scheduled before January 3, 2013, for a consular interview; or
• Applicant is in removal proceedings, unless such proceedings have been administratively closed.
A significant number of immediate relatives of U.S. citizens who are present in the United States, who entered the country without an inspection, unlawfully, are not eligible to apply for lawful permanent resident (LPR) status in the United States. Before this regulation was available, they had to depart the United States to apply for LPR status and request waivers of inadmissibility due to their prior unlawful presence, which often resulted in a heavy toll of separation from their U.S. citizen relative and uncertainty in the process. Because of lengthy separation for the uncertain amount of time in the process, many immediate relatives of U.S. citizens have remained in the shadows without applying for LPR status.
If the waiver is granted, the applicants will be notified that they may proceed with consular processing. Eligible aliens must still leave the United States and apply for and receive an immigrant visa abroad before returning to the United States. However, the length of time that U.S. citizen families are forced to remain separated should be deceased considerably.
There is no appeal if the provisional waiver is denied, but an applicant whose application is denied may re-apply.
SEC halts $150 Million scheme, charges it duped foreign investors, exploited visa program
Read the complaint
Washington, D.C., Feb. 8, 2013 - The
Securities and Exchange Commission (SEC) has announced charges and an asset
freeze against an Illinois man and two companies behind an investment scheme it
alleges defrauded foreign investors seeking profitable returns and a legal path
to U.S. residence through a federal visa program.
The SEC alleges that Anshoo R. Sethi created A Chicago Convention Center (ACCC) and Intercontinental Regional Center Trust of Chicago (IRCTC) and fraudulently sold more than $145 million in securities and collected $11 million in administrative fees from more than 250 investors primarily from China. The SEC alleges that Sethi and his companies duped investors into believing that by purchasing interests in ACCC, they would be financing construction of the World's first "Zero Carbon Emission Zero Platinum LEED certified" hotel and conference center near Chicago’s O’Hare Airport.
The SEC alleges that foreign investors were misled to believe their investments were simultaneously enhancing their prospects for U.S. citizenship through the EB-5 Immigrant Investor Pilot Program (aka, the EB-5 Program for regional centers), which provides foreign investors an avenue to U.S. residency by investing in domestic projects that will create or preserve a minimum number of 10 jobs per investor for U.S. workers.
The SEC alleges that Sethi and his companies falsely boasted to investors that they had acquired all the necessary building permits and that several major hotel chains had signed onto the project. They also provided falsified documents to U.S. Citizenship and Immigration Services (USCIS) - the federal agency that administers the EB-5 program - in an attempt to secure the agency’s preliminary approval of the project and investors’ provisional visas. Meanwhile, Sethi and his companies have spent more than 90 percent of the administrative fees collected from investors despite their promise to return this money to investors if their visa applications are denied. More than $2.5 million of these funds were directed to Sethi’s personal bank account in Hong Kong.
Swift coordination between the SEC and USCIS has brought the scheme to a halt in its application stage at USCIS. The SEC filed its complaint under seal earlier this week and obtained an emergency court order to protect the remaining $145 million in investor assets that were at risk of being similarly misappropriated by Sethi and his companies.
“Sethi orchestrated an elaborate scheme and exploited these investors’ dream of earning legal U.S. residence along with a positive return on their investment in a project that was not nearly the done deal that he portrayed,” said Stephen L. Cohen, Associate Director in the SEC’s Division of Enforcement. “The good news is that working closely with USCIS, we intervened early and stopped him from getting very far, and the asset freeze preserves nearly all of the money invested.”
The EB-5 program enables foreign investors to possibly qualify for a green card if they invest $1 million (or $500,000 in a “Targeted Employment Area” with a high unemployment rate) in a project that creates or preserves at least 10 jobs for U.S. workers, excluding the investor and his or her immediate family.
The SEC alleges that Sethi and his companies used the lure of a pathway to U.S. citizenship to convince investors to wire a minimum of $500,000 apiece plus a $41,500 “administrative fee” to U.S. bank accounts. These administrative fees are separate from the investment capital that the EB-5 program requires to be deployed into a job-creating enterprise. More than $11 million in administrative fees were collected with the claim that they were fully refundable to investors if their visa applications are rejected. Sethi and his companies have instead been spending those funds.
The SEC alleges that Sethi submitted false claims about the project to USCIS. Among the phony documentation that he provided to the agency in seeking preliminary approval for the project under the EB-5 program were a comfort letter from Hyatt Hotels and a backup financing letter from the Qatar Investment Authority.
The SEC alleges that Sethi and his companies made a number of misrepresentations about the project to dupe investors. Offering materials stated that investors’ funds would help build “a convention center and hotel complex, including convention and meeting space, five upscale hotels, and amenities including restaurants, lounges, bars, and entertainment facilities.” Sethi and his companies prominently featured in their marketing materials the purported participation of three major hotel chains in the project: Hyatt, Intercontinental Hotel Group, and Starwood Hotels. However, none of these hotel chains executed franchise agreements to include a brand hotel in the project as represented to investors in offering materials. Two of the chains actually terminated prior deals with other Sethi-related entities more than two years before offering materials were circulated to investors.
The SEC further alleges that offering materials falsely stated that construction would begin in summer 2012 and occupancy of the first tower would occur in early spring 2014. A search of the Chicago building permits database for the project address shows that the only recent permits are for a tent for a purported groundbreaking ceremony held in November 2012, a demolition permit, construction of a fence, and a minor electrical wiring permit.
According to the SEC’s complaint, Sethi, 29, misrepresented to investors in offering materials that he has “over fifteen years of experience in real estate development and management, specifically in the lodging area.” Offering materials also misleadingly state that the project’s developer Upgrowth LLC has “more than 35 years of experience.” Illinois corporate records show that Upgrowth was organized in 2010.
The SEC alleges that Sethi, ACCC, and IRCTC violated Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. In addition to the temporary restraining order and asset freeze granted by the court, the SEC’s complaint seeks permanent injunctions and other monetary relief.
The SEC acknowledges the substantial assistance of USCIS.
USCIS announces realignment of EB-5 Program
EB-5 stakeholders got some good news out of USCIS Director Alejandro Mayorkas during a December 3 conference call. Mayorkas announced that he has decided to realign EB-5 responsibilities by putting the leadership of the EB-5 Program in USCIS headquarters in Washington, D.C. The office will be staffed with lawyers, economists, and immigration service officers (also called "adjudicators"). The chief of the realigned EB-5 Program in the Washington office will report directly to USCIS deputy director. Mayorkas said he hopes to have the realignment completed within four to six months. This realignment returns the EB-5 Program to a situation that existed in 2009 before USCIS directors banished the EB-5 Program to the California Service Center, where confusion has reigned ever since. Mayorkas said again (as he has for years) that USCIS's goal is 90 to 120 days' processing time on average for I-526 petitions.
E-2 to EB-5 conversion in Clearwater
I was asked to appear on a panel at the Central Florida Chapater of the American Immigration Lawyers Association concerning a fairly tricky maneuver, i.e., converting an E-2 (treaty investor) visaholder to E-B (alien entrepreneur immigrant visa). Sometimes one can accomplish that goal; sometimes it can't be done for a variety of reasons. My panel members and I will delved into the basics of conversion on Friday, October 5 (my birthday). For more information, please click on the link to my EB-5 green card blog above.
For the latest information about deferred action from USCIS, click on the link below
DHS announces deferred action on some young illegal aliens
On June 15, 2012, Secretary of
Homeland Security Janet Napolitano announced a new policy with regard to young
people who are illegally present in the United States.
Certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.
“Our nation’s immigration laws must be enforced in a firm and sensible manner,” said Secretary Napolitano. “But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.”
The secretary said the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders. Today’s action further enhances the Department’s ability to focus on these priority removals.
Under the new DHS directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:
1. Came to the United States when
younger than 16;
2. Have continuously resided in the United States for a least five years prior to June 15, 2012, and are present in the United States on June 15, 2012;
3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5. Are not older than 30.
Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than five years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. There are no assurances that all such requests will be granted. DHS said that use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only Congress, it said, acting through its legislative authority, can confer these rights.
EB-5 Program statistics released
The EB-5 immigrant investor visa
program is still woefully underutilized, if newly released statistics are any
guide. The Office of Performance and Quality of U.S. Citizenship and
Immigration Services shows that 1,563 I-526 petitions (for the conditional
immigrant visa) were approved in federal fiscal year 2011, up from 1,369 in FY
But based upon preliminary data from the first two quarters of FY 2012, 2,101 I-526 petitions were approved. That's better, but still nothing for USCIS to crow about considering Congress makes available 10,000 visas each federal fiscal year.
On the backside of the process, USCIS approved 1,067 I-829 petitions to remove conditions on residence, and there were 522 approvals during the first two quarters of FY 2012.
The approval percentage for I-526 petitions in FY 2011 was 81 percent, and for the first two quarters of FY 2012, it was 85 percent.
'Tenant occupancy' emerges as the latest big policy change from USCIS
The February 17 USCIS memo was less than one page, but it had a 911-style impact on its customers like nothing else in recent memory. And here it is:
methodology seeks credit for job creation by independent tenant businesses that
lease space in buildings developed with EB-5 funding. USCIS continues to
recognize that whether it is economically reasonable to attribute such
“tenant-occupancy” jobs to the underlying EB-5 commercial
real estate project is a fact-specific question. Each case filed will depend on the specific facts presented and the accompanying economic analysis.
"USCIS is now moving forward with the adjudication of certain pending I-924 Applications For Regional Centers Under the Immigrant Investor Pilot Program that are supported by the 'tenant-occupancy' economic methodology. Our newly-hired economists and business analysts will be bringing expertise to these new adjudications, and requests for evidence will be issued to certain applicants and petitioners to address any questions or issues we have about the economic methodologies employed in their specific cases. Our adjudications will continue to be made on a case-by-case basis and we do not intend to revisit factual findings. I-526 Immigrant Petitions by Alien Entrepreneurs and I-829 Petitions by Entrepreneurs to Remove Conditions will have predictability in connection with early regional center adjudications."
Oh, brother! USCIS cannot make the case that they are not bomb-throwers. The EB-5 immigration lawyers, including my AILA EB-5 Investors Committee, dropped everything and got in the agency's face. This USCIS policy change was released without any feedback from its customers, which was an innovation of the current director initiated, assiduously pursued, and then promptly and unaccountably abandoned.
When USCIS states that it does not "intend to revisit factual findings," what does the writer mean? Does this mean that regional centers that adopted the "tenant occupancy" model will still be able to claim tenant jobs as direct jobs? Or will USCIS apply this policy change change retroactively and cause notices of intent to revoke to be sent to affected regional centers and denial notices sent to alien investors who file I-829 petitions to remove conditions?
What are we paying for?
It is always great to have a guest editorial in this space. This month I have invited another colleague, Brandon Meyer, of San Diego, to offer his opinion concerning the so-called "exemplar" or "pre-approval" process for EB-5 Program investment projects. Brandon thinks the $6,230 filing fee paid to USCIS for this "service" is a waste of money, and I agree. CLICK HERE.
Federal appeals court will proceed with AL, GA immigration appeals
Although the U.S. Supreme Court has agreed to hear arguments for and against Arizona's immigration laws, the U.S. Court of Appeals for the Eleventh Circuit in Atlanta turned down motions last month to stay appeal proceedings over Alabama's and Georgia's immigration laws. Oral arguments concerning Arizona's immigration laws may be heard as early as late Spring.
Immigration Law Center among 'Best Law Firms'
The Immigration Law Center has been included, once again, as one of America's 'best law firms'. See:
Judge temporarily blocks Alabama immigration law
A federal judge has temporarily
blocked Alabama's new immigration law from going into effect on Sept. 1.
The brief order of U.S. District Court Presiding Judge Sharon Blackburn says she is not ruling on the merits of the motions filed by the parties in court, but will issue an order so ruling no later than Sept. 28.
The injunction is in effect until Sept. 29 or when the judge rules on the motions, whichever comes first.
EB-5 visa issuance for FY 2009 and 2010 tell the sad story
I took a long, hard look at EB-5 visa issuance by the Department of State for fiscal years 2009 and 2010, the latest available, and realized why I am so worried about the survival of the EB-5 immigrant investor visa program. You can take your own look at my report by clicking HERE.
USCIS is 'tougher', certainly not 'permissive' in handling EB-5 Program
Following is another guest editorial by Young Noh, one of the best thinkers in the EB-5 arena.
Someone from the Center for Immigration Studies wrote an article titled "USCIS Hails More Permissive Handling of EB-5 Alien Investor Program". You can read it for yourself at:
I wish the author had selected a more appropriate title for his article because many EB-5 practitioners are reporting these days a tougher, rather than permissive, handling of EB-5 cases by USCIS. From what we hear, USCIS is definitely not handling EB-5 cases more permissively. We also would like to point out several inaccurate statements or assumptions in the article about the EB-5 Program.
Inaccurate statement 1:
Apparently nothing frustrates USCIS more than an underutilized visa program, such as the one that allows a well-to-do-investor's family to get a collection of green cards by - briefly - investing half a million dollars in the U.S. So, the agency has announced its efforts to expand that program. USCIS is not all that frustrated that the EB-5 Program is underutilized. Congress and many companies which want to attract EB-5 money, as well as regional centers who want to work with U.S. businesses that will create jobs, are frustrated. In fact, many would argue that the reason the EB-5 Program is in fact underutilized is due to USCIS policies which often discourage commercial investments. USCIS is not handling the EB-5 Program loosely and is in fact handling the EB-5 Program too tightly, creating obstacles that discourage, rather than spur, investments.
Inaccurate statement 2:
Other nations, such as Canada and Australia have demanded that the immigrant investor actually operate a company that hires real people - but not the U.S. The use of a contrived, indirect job-creation formula is all that is needed. The EB-5 investor need not even visit the state where the two-year investment is located, much less actually manage a business; all he has to do is send a check. Canadian green card investment programs does not even require any sort of job creation. Anyone familiar with the investment green card programs of Canada, Australia and USA should know that the EB-5 Program of USA is one of the most cumbersome and risky of any investment green card programs. In fact, if you take out Asian EB-5 investors who are willing to take some risks due to their desire to send their children to American universities, which they perceive as "the best in the world," not that many people in fact go through the EB-5 Program run by USCIS -- and rightly so. That should tell you something. In our opinion, if the US offered a similar EB-5 Program to that of Canada, which in fact guarantees the return of the investment in 5 years without any need to show any job creation, the number of EB-5 investors would double or triple immediately.
Inaccurate statement 3:
Looking at this from another angle, let's step back for a moment and ask what kind of serious venture capitalist seeks funding in half million dollar chunks, investments that can be withdrawn after 24 months? My venture capitalist stepson, with a Harvard MBA piled on top of a PhD in chemical engineering and a decade of experience in the field, would laugh at the thought. The author seems to believe that there are regional centers out there which actually return the EB-5 investment money after 24 months. Perhaps there are regional centers which wishes they could return the money that quickly, but we can confidently say that the EB-5 investment structures do not allow EB-5 projects to return the money that quickly. No regional center wants one EB-5 investor to invest once every 3 months or 6 months; they need all EB-5 investors to invest within one year. In fact, I know several American businesses who are frustrated by having to wait for I-526 approvals which are taking sometimes more than 1 year, before they can receive EB-5 moneys. No regional center returns the investment money after 24 months, and in fact, the way the EB-5 case process is set up, it is very, very difficult to return the money before 4 or 5 years. In fact, EB-5 investors' chief worry is that for many regional center programs, they don't know when, if ever, they will get back their money. It's very hard to get back the money, and most, if not all, regional center based projects cannot afford to return the EB-5 investments before 5 years, precisely because, as the writer implies, many businesses need to use the money for longer periods. If the author asks his stepson with a Harvard MBA whether a venture company would not like to use money for 5 years at a very low interest rate, I am sure the stepson would say "hell, yes."
Inaccurate statement 4:
A denial rate of 14 percent in the EB-5 program must mean that the USCIS staff is seeing a set of applications that are far below average for the agency. The denials, incidentally, are for the I-829 petitions, which allow the investor to withdraw his or her money and receive green cards for the entire family. This happens a couple of years after the investment is made. The real reason for the high denial rate for EB-5 cases is because USCIS has many ways to deny EB-5 cases, because the EB-5 law is very unclear on many key issues. There is a greater chance of denial for EB-5 petitions than probably any other type of immigration petitions, that much is true; but that's because USCIS applies the EB-5 requirements very strictly and narrowly, rather than loosely or liberally. One must also keep in mind that actual denial rates of EB-5 cases are much greater because many petitioners simply choose to withdraw their cases before denials, and these withdrawals do not count as denials. Many petitioners, rather than risk the cases being sent to AAO, simply choose to abandon their cases, and this is because whenever USCIS denies a case and the case goes to AAO, AAO has never overturned the denial decision of USCIS -- which is pretty incredible when you think about it -- but it goes to show you, that there are many ways to deny EB-5 cases if USCIS wanted to. Simply put, it is very difficult to put one over the tough, strict USCIS, and not many regional centers even try, because their reputation would be shot and they have something to lose. As a result, EB-5 money does not seem to be going primarily into promising start-ups or into Silicon Valley; it is more likely to show up in decaying ski resorts in Vermont (beloved to Sen. Leahy (D VT), head of the Judiciary Committee), in an uneconomical sewage treatment plant in the Mojave desert and in a questionable effort to revive the Watergate Hotel in Washington, D.C., and in similar ventures.
The writer makes an accurate observation that not many EB-5 investors choose venture projects, but there is a good reason for this. The EB-5 Program requires 10 full-time jobs, and start-ups or venture companies simply are unable to accomplish this with any consistency. Also, USCIS policy makes it almost impossible to spread money among multiple businesses, including some venture companies. Classic conservative economic theory is that government should not pick winners and losers in the marketplace; I do not necessarily accept that thought, but if a government agency gets to play that role, I would prefer it would be one experienced in finance (such as Treasury or Commerce) not one whose expertise is in immigration. Actually, many EB-5 practitioners feel that USCIS, an immigration agency, is simply not equipped to deal with an investment program, and that the Department of Commerce should play the primary role. In this sense, I actually agree.
Meanwhile, in a multi-trillion dollar economy, the amount of money raised (for two years) in the EB-5 program is peanuts. Let's say that each of the 814 approvals this year will raise half a million dollars, that's only $407 million - is the game worth the candle? Yes, it's a simply a drop, but every drop helps in this economy. More importantly, why is the writer against EB-5 investors and dependents immigrating to the US, when EB-5 investors and dependents do not take away jobs from Americans, and probably all they do are buying expensive houses and cars, putting their kids in private schools or universities and spending money in the US? Is that so bad? And during this economy, many businesses have a hard time finding any loans from regular banks, and the EB-5 Program offers a loan for 5 years at a very low rate. What is wrong with that? If the Congress or USCIS wishes to do away with the EB-5 Program, so be it. But while the EB-5 Program is on-going, at least run it efficiently and consistently. Otherwise, shut it down by all means and let other countries receive EB-5 investors and families with open arms.
My biggest concern about USCIS mishandling of the EB-5 Program
Following is a guest editorial written by Young Noh, the newest member of the EB-5 Investors Committee of the American Immigration Lawyers Association (AILA). Young is an expert in removing conditions on residence in the EB-5 Program. I wish the federal employees who are in charge of mismanaging the EB-5 Program had half his knowledge and understanding of the EB-5 Program. The name of his excellent website follows his name at the end of his editorial.
If someone asked me what is my
single biggest concern (or constructive criticism) of the way USCIS has and is
handling the EB-5 Program, it would be that their policy guidance memos not only
affect prospective EB-5 projects and petitions, but sometimes adversely and
retroactively affect past EB-5 projects and EB-5 petitions. Let me explain
I came to accept the fact that USCIS can do pretty much anything to the EB-5 Program because it is a governmental agency in charge of the EB-5 Program. I have no problem with this in so far as USCIS acts within reason. This sounds like a defeatist attitude but it's a realistic attitude born of experience and realization that I simply cannot affect or influence whatever policy USCIS will eventually adopt.
Most regional centers and EB-5 practitioners simply accept the USCIS's many policy guidance memos and try to operate under the changed landscape, and I am one of them. But what the heck are you supposed to do with the past EB-5 projects and/or EB-5 petitions, which in good faith, proceeded under the old EB-5 law full of holes, at the time when the EB-5 law failed to address many important issues which were never properly analyzed and decided upon? For example, many new issues concerning job-creating issues for the purpose of meeting I-829 requirements have arisen during the last several years. In essence, the EB-5 law is being made up as we go along.
The fundamental fairness dictates that USCIS should apply its new policy memos prospectively, and treat the past EB-5 projects and petitions in a fair manner. But sadly, this is not the case. More often than not, USCIS appears to want to justify that its new positions taken via so-called policy guidance memos were in fact what the EB-5 law has been all along. Experienced EB-5 attorneys know that this was not the case.
For example, in the past there was
no concept of "material change" in the EB-5 law when it comes to the
adjudication of I-829 petitions. Katigbak and Izummi cases are simply not
applicable to these cases; they are only relevant when there are changes while
I-526 is pending. In fact, when you review I-829 statutes and regulations, there
is no mention of "material change" concept anywhere. There is only no
de-coupling language in the 9th Circuit Chang case, but that does not mean that
changes to the job-creating project cannot take place, as long as the specific
I-829 requirements are met.
Aside from the fact that USCIS policy guidance memos are not as clear as they could be and create more new issues than resolve them, I have absolutely no complaint or problem with USCIS's creating and applying whatever new policy guidance memos prospectively. I am willing to follow what USCIS wants us to do, as long as they are applied prospectively. No one wants to be a hero and fight USCIS when you can avoid doing so. [Just consider how many times USCIS changes it position on construction jobs and TEA census tracts issue. Actually, I still do not know what the official USCIS position and rationale is on the issue of combining contiguous census tracts! The June 30th 2011 presentation materials state that USCIS is reviewing this issue.] But USCIS has to be fair in recognizing that in the past, many of the EB-5 issues and procedures simply did not exist and at best, were very unclear, so that no one, including USCIS, knew what the USCIS policy or position was on many important EB-5 issues or areas; and that is the very reason why USCIS is issuing guidance memos in the first place: To create and apply new policies to EB-5 issues that have not been properly addressed before.
All I am asking is that USCIS be clear in communicating its new EB-5 policies and be fair in applying its new policies prospective and not retroactively, especially when the new policies adversely affect the past or pending EB-5 projects or petitions. Is this too much to ask? All I am asking is that USCIS be fair and honest about the EB-5 history; and recognize that for the EB-5 Program to succeed, regional centers and USCIS must cooperate rather than be adversaries. -- Young Noh, eb-5center.com
HERE IS OUR WARNING AGAIN: Your friends, relatives, and co-workers are good sources of bad information about immigration and nationality law and federal administrative procedures. If you really want to know what to do about an immigration or visa situation, please consult a qualified immigration lawyer. If you don't know one, please call the American Immigration Lawyers Association (AILA) Lawyer Referral Service in Washington, D.C., go to www.ailalawyer.com . AILA's Lawyer Referral Service cannot assure you that you will get the best immigration lawyer, but you should be able to get competent legal help and guidance. Remember: CIS considers every petition or application filed as a legal case for adjudication under the federal Administrative Procedures Act and federal regulations. When people help themselves or others by filling out forms and filing them with CIS, they are filing a legal case before an administrative agency of the federal government for adjudication. If the case runs into trouble or is denied, the alien and his family members rarely know what to do next or how to get the legal matter resolved. Some visa applicants have monthly telephone bills that are larger than any fee they will ever pay to a qualified immigration lawyer. For information about how to hire and work with an immigration lawyer, click on the following link: Why Hire an Immigration Lawyer? Also, don't forget to check out our web links to other helpful (and FREE) information: CLICK HERE
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