Thoughts on the AAO I-924 Dismissal of September 5, 2014
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Thoughts on the AAO I-924 Dismissal of September 5, 2014 By Joseph P. Whalen (October 5, 2014) Contact: [email protected](716) 604-4233 OR (716) 768-6506 Page 1 On or about October 1, 2014, an appeal dismissal by the Administrative Appeals Office (AAO) dated September 5, 2014, for a Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program that had been filed pursuant to Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. No. 102-395, 106 Stat. 1874 (1992), as amended , was posted on the USCIS website. Pages 2 through 6 of that decision follow some introductory remarks. I have added highlighting and commentary along the way which is clearly discernible from the text of the decision. A “clean copy” of the decision as it appears on the website is appended. But first, I discuss a few points. In a nutshell, the request for Regional Center (RC) Designation was put forth by an E-2 nonimmigrant Treaty Investor who wanted to convert his E-2 investment into an EB-5 immigrant visa. The major problem was that he had no employees of his own. Heck, he did not even have any contractors that he might have converted. The only possible employment creation associated with his investment would have been “indirect jobs” in a tenant business 1 which is why he desired Regional Center Designation. There were so many misguided notions in this application that it is difficult to figure out where to start. I won’t let that stop me, I think I can manage to provide some useful insights even if the ideas are less organized than I’ d like. The following characteristics are clear signs that it won’t work as an EB -5 RC: It would only involve one project EVER. In other words, it would be a “one-time only” deal. (See items here and here .) It would only have one EB-5 investor EVER, as a landlord , see here . The jobs already exist and: o No new jobs will be added; o The business is not being radically restructured; o The business is not being expanded by 40% or more; and o The business is not a troubled business where jobs will be preserved instead of lost . (See Part IV, here .) Even the indirect jobs already existed. 1 As a mere landlord who did nothing to neither facilitate the establishment of the business nor stimulate any job growth, the indirect jobs would not count in any case.
Thoughts on the AAO I-924 Dismissal of September 5, 2014
This is the latest EB-5 Decision as of this posting. I found the AAO Decision posted on Oct. 1st, 2014.
Citation preview
1. Thoughts on the AAO I-924 Dismissal of September 5, 2014 By
Joseph P. Whalen (October 5, 2014) Contact:
[email protected] (716) 604-4233 OR (716) 768-6506 Page 1
On or about October 1, 2014, an appeal dismissal by the
Administrative Appeals Office (AAO) dated September 5, 2014, for a
Form I-924, Application for Regional Center Under the Immigrant
Investor Pilot Program that had been filed pursuant to Section 610
of the Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 1993, Pub. L. No. 102-395,
106 Stat. 1874 (1992), as amended, was posted on the USCIS website.
Pages 2 through 6 of that decision follow some introductory
remarks. I have added highlighting and commentary along the way
which is clearly discernible from the text of the decision. A clean
copy of the decision as it appears on the website is appended. But
first, I discuss a few points. In a nutshell, the request for
Regional Center (RC) Designation was put forth by an E-2
nonimmigrant Treaty Investor who wanted to convert his E-2
investment into an EB-5 immigrant visa. The major problem was that
he had no employees of his own. Heck, he did not even have any
contractors that he might have converted. The only possible
employment creation associated with his investment would have been
indirect jobs in a tenant business1 which is why he desired
Regional Center Designation. There were so many misguided notions
in this application that it is difficult to figure out where to
start. I wont let that stop me, I think I can manage to provide
some useful insights even if the ideas are less organized than Id
like. The following characteristics are clear signs that it wont
work as an EB-5 RC: It would only involve one project EVER. In
other words, it would be a one-time only deal. (See items here and
here.) It would only have one EB-5 investor EVER, as a landlord,
see here. The jobs already exist and: o No new jobs will be added;
o The business is not being radically restructured; o The business
is not being expanded by 40% or more; and o The business is not a
troubled business where jobs will be preserved instead of lost.
(See Part IV, here.) Even the indirect jobs already existed. 1 As a
mere landlord who did nothing to neither facilitate the
establishment of the business nor stimulate any job growth, the
indirect jobs would not count in any case.
2. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 2 While it is true that an EB-5 Direct
Investment that takes place outside of the EB-5 Regional Center
Program can succeed when the investor has long since started the
business while in some other lawful nonimmigrant status; that
success will require, inter alia, the creation of EB-5 direct jobs.
Those EB-5 direct jobs require a true employer-employee
relationship as understood in the immigration context. Those jobs
will have to be for a select group of full-time work-authorized
employees as defined in 8 C.F.R. 204.6(e) and INA 203(b)(5)(D) [8
U.S.C. 1153 (b)(5)(D)]. (See more about jobs here and here.) The
applicant who sought Regional Center Designation thoroughly
misunderstood the basic precepts of the Program. That
misunderstanding is plainly described by the AAO in the
introductory portion of this appeal dismissal as shown in the
following excerpt. . .The applicant stated initially that the
regional center "will be used to facilitate only the [Form] I-526
[Immigrant Petition by Alien Entrepreneur] for application of one
high net worth foreign alien [the applicant's sole member]," who is
unable to "apply on an individual basis" because his investment in
a leased airport hangar during his stay as an E-2 nonimmigrant
investor has created only indirect jobs. The chief denied the
application, determining that the proposal did not demonstrate in
verifiable detail how jobs will be created indirectly and did not
describe how it will promote economic growth. On appeal, the
applicant has not overcome any of the chief's grounds for denial.
As an additional issue, the applicant has not demonstrated that its
regional center proposal is consistent with the purpose of
concentrating pooled investment as required by statute. (AAO
SEP052014_01K1610.pdf) at p. 2 While USCIS has not promulgated any
regulation restricting Regional Center applicants to U.S. citizens
or lawful permanent residents of the U.S. (or other lawful
immigrants) or majority U.S.- owned businesses nor has Congress
limited eligibility in the statute, it is highly doubtful that
anyone envisioned that a non-immigrant E-2 treaty investor would
seek Regional Center Designation in the manner that this applicant
did. As I have stated previously, EB-5 Regional Centers are not
meant to be used as umbrellas for mom-n-pop operations to count
indirect jobs because they are places where non-qualifying
employees would normally work (families) or as incubators for
extremely small businesses that simply will not create enough
permanent full-time jobs per investor. Many franchise businesses
also will not qualify if based on a business model that relies on
part-time workers or is seasonal in nature or is just not labor
intensive enough for EB-5 purposes. See (AAO Nov162010_03K1610.pdf)
at p. 2 noting that the applicant has not overcome all of the
director's concerns especially as the direct employment projection
for the Holiday Inn Express lacks
3. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 3 credibility. In addition, a review of the
proposed limited partnership agreement reveals a term that is
problematic. [Emphasis added]. Another recent EB-5 case involved a
direct investment also by an E-2 nonimmigrant. In that case it was
through an EB-5 Direct Investment contained in an I-526 visa
petition. Also in that case, the investor and spouse both worked in
the business, along with the petitioners brother who while not
disqualified by the family relationship was using an EAD which
indicated that he was a nonimmigrant and therefore was also
excluded from the regulatory definition of a qualifying employee.
The decision did not specify but the brother may have been an E-2
employee in that E-2 business. Here is an excerpt from that
decision which explains it well. ..The regulation at 8 C.F.R.
204.6(e) specifically precludes independent contractors from the
definition of employee. Moreover, out of the remaining 11
employees, the petitioner, his wife, and his brother do not count
toward the minimum of at least 10 employees. Specifically, the
regulation at 8 C.F.R. 204.6(e) (definition of qualifying employee)
excludes the petitioner and the petitioner's spouse. Regarding the
petitioner's brother, the Form I-9 indicates that he has work
authorization until June 2015, indicating that the petitioner's
brother is a nonimmigrant, a category of workers that the
regulatory definition of qualifying employee also specifically
excludes. Consequently, only four of the 11 current workers meet
the definition of both employee and qualifying employee at 8 C.F.R.
204.6(e). (AAO JUL022014_01B7203.pdf) at p. 11. It is not
impossible for an E-2 Treaty Investor to start out in that status
and later seek an EB-5 immigrant visa, it is not easy. (See an
article here.) Additionally, an E-1 or E-2 is not precluded from
obtaining nonimmigrant status due to a known desire to seek an
immigrant visa. Although worded slightly differently, it is an
acceptable dual intent non-immigrant category like the A, G, H, L,
K, S, T, U, and V. Some people (like me) would also include the TN.
I am sorry if I missed any but I think you see the point. As
promised in the beginning, what follows next are pages 2-6 of the
September 5, 2014, AAO Appeal Dismissal of an I-924. I have added
highlighting and comments are clearly delineated as separate
discussion. Now, on with the show! Comments that break into the
text of the decision will look like this.
4. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 4 NON-PRECEDENT DECISION Page 2 DISCUSSION: The
Chief, Immigrant Investor Program, denied the application for
designation as a regional center. The matter is now before the
Administrative Appeals Office (AAO) on appeal. The appeal will be
dismissed. The applicant filed Form I-924, Application for Regional
Center under the Immigrant Investor Pilot Program seeking
designation as a regional center as, [REDACTED] pursuant to section
610 of the Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L.
No. 102-395, 106 Stat. 1828 (1992), as amended by section 116 of
Pub. L. No. 105-119, 111 Stat. 2440 (1997); section 402 of Pub. L.
No. 106-396, 114 Stat. 1637 (2000); section 11037 of Pub. L. No.
107-273, 116 Stat. 1758 (2002); section 4 of Pub. L. No. 108- 156,
117 Stat. 1944 (2003); and section 1 of Pub. L. No. 112-176, 126
Stat. 1325 (2012) (1993 Appropriations Act). The applicant stated
initially that the regional center "will be used to facilitate only
the [Form] I-526 [Immigrant Petition by Alien Entrepreneur] for
application of one high net worth foreign alien [the applicant's
sole member]," who is unable to "apply on an individual basis"
because his investment in a leased airport hangar during his stay
as an E-2 nonimmigrant investor has created only indirect jobs. The
preceding and following are where I found the excerpt included in
the introductory portion of this article. The additional issue
identified by AAO (highlighted in blue, below) is a pet peeve of
mine. I have been writing for years that it is simply impossible
for a single EB-5 investor to pool investment funds. I have gone
further than AAO on this topic by saying that a single EB-5
investor who combines their funds with non-EB-5 investors still
wont count for a Regional Center investment. This is because the
EB-5 Regional Center Program is defined based on regional centers
and the text of 610(a) describes a regional center as being applied
to multiple alien investors when it states that. [t]he
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,.. To
my mind, the above statute demands that a Regional Center will
concentrate pooled investments of multiple EB-5 alien investors
into its projects in order to justify the counting of indirect jobs
to satisfy the 10 full-time jobs per investor minimum employment
creation requirement. I have heard folks suggest that a Regional
Center can use business models where a single EB-5 investor would
be set up in a business via a single franchise store (location) as
an individual small business. That approach simply WILL NOT work
even if the single location has ten full-time jobs all by itself.
Why? You ask. Well, because if it meets the basic requirements for
EB-5 Direct Jobs it does not need to be in a Regional Center. So,
that leaves small franchises with part-time workforces or merely
less than 10 full-time positions such that in either case, it is
like our applicant from the September 5, 2014, I-924 Dismissal,
someone who cant make it in terms of EB-5 direct jobs who is
seeking to inappropriately count indirect jobs. The chief denied
the application, determining that the proposal did not demonstrate
in verifiable detail how jobs will be created indirectly and did
not describe how it will promote economic growth. On appeal, the
applicant has not overcome any of the chief's grounds for denial.
As an additional issue, the applicant
5. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 5 has not demonstrated that its regional center
proposal is consistent with the purpose of concentrating pooled
investment as required by statute.2 The appeal is dismissed. I. THE
LAW AND REGULATIONS Section 610(a) of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act 1993 (" 1993 Appropriations Act"), as amended,
sets aside employment creation visas under section 203(b)(5) of the
Immigration and Nationality Act (the Act), 8 U.S.C. 1153(b)(5), for
a program in which U.S. Citizenship and Immigration Services
(USCIS) designates regional centers with jurisdiction over a
limited geographic area to promote economic growth. The statute, as
amended, explains that "a regional center shall have jurisdiction
over a limited geographic area, which shall be described in [a]
proposal and consistent with the purpose of concentrating pooled
investment in defined economic zones." Id. The same law provides
that "[t]he 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." Id. The regulation at
8 C.F.R. 204.6(e) defines a regional center as "any economic unit,
public or private, which is involved with the promotion of economic
growth, including increased export sales, improved regional
productivity, job creation, and increased domestic capital
investment." The regulation at 8 C.F.R. 204.6(m)(3)(i) provides, in
pertinent part, that a regional center proposal must include "in
verifiable detail how jobs will be created indirectly."
NON-PRECEDENT DECISION Page 3 II. ANALYSIS A Job Creation The
applicant does not propose a future project. Instead, the proposal
focuses on existing employment on property at the [REDACTED] that
[REDACTED] currently subleases to another employer. Following
adjustments in ownership of the relevant property due to a Base
Closure and Realignment in 1992, in May 2001, [REDACTED] obtained
an option to purchase a leasehold for the portion of the airport
property containing a newly built hangar. [REDACTED] is currently
subleasing the hangar to [REDACTED]. According to the initial
business plan, [REDACTED] the entity from which obtained the
leasehold, completed the hangar on the leasehold property in August
2001. The applicant claimed that "[t]he total new permanent jobs
created has settled between 18-25 people that operate from this
hangar alone," and that the jobs that were created were for pilots,
flight attendants, maintenance personnel, and security. According
to the applicant's business plan, [REDACTED] venture at the hangar
created new indirect jobs rather than transferring jobs from
another location. The applicant further explained that the
positions have remained stable such that the regional center will
be able to demonstrate at least 10 jobs at the hangar. In response
to the director's request for evidence, the applicant explained
that many of the questions on the Form I-924 did not apply because
"the jobs were already in place." The applicant further asserted
that 2 I am quite interested in this point and will expound upon it
later along in this article.
6. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 6 it would be inappropriate to request a study
pertaining to future job creation for the same reason. The
applicant also submitted an "Economic Benefit Analysis: FY2010
[REDACTED] that did not reflect an economic benefit analysis of the
single [REDACTED] hangar subleases and [REDACTED] operates; rather
it reflected an analysis of the [REDACTED] as a whole for fiscal
year 2010. In response to the director's notice of intent to deny
(NOID), the applicant's managing member claimed that "[c]reating
more new jobs is not viable under the current scenario since this
project would be considered to be at full capacity, and it would
not be reasonable for me to assume, or assure you that any
additional new employment would be created from this date forward."
In response to the director's email requesting clarification, the
applicant submitted an email from [REDACTED] Business Analyst for
[REDACTED], who stated that "in the summer of 2001 [an undisclosed
number of] full time people began working in the hangar" and "[w]e
have held an average of 29 full time jobs at the hangar for the
past 12 years." The applicant also submitted an "Economic Impact
Analysis: Fiscal Year 2013" that again reflected the economic
impact of the [REDACTED] rather than the economic impact of the
hangar that [REDACTED] subleases to [REDACTED]. Accordingly, the
initial filing and responses to the NOID and USCIS email did not
indicate the amount of jobs had created or the projected number of
jobs that [REDACTED] would create. The chief denied the application
determining that "the applicant's assertion that jobs created in
2001 can be []credited to the regional center is unfounded." On
appeal, the applicant claims that the chief did not cite any
statutes or regulations to support his decision, and the chief
incorrectly assumed that only jobs created going forward from this
time are "new." By statute, a regional center is designated by
USCIS "on the basis of a general proposal, for the promotion of
economic growth." Section 610(a) of the 1993 Appropriations Act, as
amended (emphasis added). Moreover the general proposal "may be
based NON-PRECEDENT DECISION Page 4 upon general predictions ...
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 other
positive economic effects such capital investments will have." Id.
(emphasis added). By regulation, a regional center is required to
show prospective benefits, including job creation. The regulations
provide that an applicant shall submit a proposal that clearly
describes how the regional center "will" promote economic growth
through job creation. 8 C.F.R. 204.6(m)(3)(i). An applicant shall
also submit a proposal that provides verifiable details about how
jobs "will" be created indirectly. 8 C.F.R. 204.6(m)(3)(ii). A
proposal shall be submitted that details predictions on how a
regional center "will" have a positive impact on the regional or
national economy. 8 C.F.R. 204.6(m)(3)(iv). Once designated, a
regional center must annually update USCIS with information
demonstrating that it "continue[s] to promote economic growth,
improved regional productivity, job creation, or increased domestic
capital investment in the approved geographic area." 8 C.F.R.
204.6(m)(6). USCIS may terminate a designated regional center that
no longer serves the purpose of promoting job creation. Id. Once a
regional center is approved, an alien investor must show that such
investment "will" create jobs indirectly from the new commercial
enterprise. 8 C.F.R. 204.6(m)(7). In addition, the instructions to
the Form I-924, page 2, item 5, require a general prediction
regarding the "prospective impact" of the proposed regional center
projects. Compare 8 C.F.R. 204.6(j)( 4)(A) (requiring evidence to
support the filing of a Form I-526 by
7. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 7 an investor to demonstrate that at least 10
full-time positions have already been created following the
establishment of a new commercial enterprise). The law governing
the designation of Regional Centers is replete with forward looking
statements. RCs need to make future contributions rather than lay
claim solely to past accomplishments. A "Direct EB-5 Investor" may
succeed with EB-5 "direct jobs" already created at time of filing
his or her I-526 Visa Petition. The same, however, cannot be said
for Regional Centers. It is this writers belief that it was, at
least in part, Congress intent for the EB-5 Regional Centers to
become lasting additions to our Regional Economic Infrastructures
across the nation. Also, RCs were not intended to be used as
"umbrellas" for either mom-n-pop operations or successful ventures
in order to count EB-5 "indirect jobs" inappropriately. The
applicant did not project any additional direct or indirect jobs
would be created beyond those jobs [REDACTED] created in 2001 or
that there would be additional capital investment in the commercial
enterprise. Therefore, upon approval, the regional center would not
create any future jobs; it is exclusively relying on previously
created indirect jobs. Although the applicant on appeal relies on
the regulation at 8 C.F.R. 204.6(j)(4)(i)(A) for the assertion that
a regional center need not project future investment or job
creation, that regulation pertains to the Form I-526 that an
investor may file once USCIS approves the regional center. The
applicant did not establish how the regional center will promote
economic growth through job creation and how jobs will be created
indirectly pursuant to the regulation at 8 C.F.R. 204.6(m)(3)(i).
On appeal, the applicant also relies on language from Operational
Guidance for EB-5 Cases Involving Tenant-Occupancy, GM-602-0001
(Dec. 20, 2012) to support the proposition that a regional center
proposal need not create any new jobs and can rely on existing
jobs. Specifically, the applicant noted that the guidance
memorandum provides that applicants and petitioners must "project
the number of newly created jobs that would not have been created
but for the economic activity of the EB-5 commercial enterprise."
However, the applicant's reliance on a statement taken out of
context ignores the regulatory requirements for regional centers,
specifically the requirement to "promote economic growth through
increased export sales, improved regional productivity, job
creation, or increased domestic capital investment" at 8 C.F.R.
204.6(m)(3)(i). The idea that the applicant sought to twist out of
shape is a concept I hold near and dear. Namely, that when a
Regional Center Project facilitates job creation it is serving the
purpose of the program. However, within the EB-5 Regional Center
Program, that concept is to be applied prospectively. That is even
true when EB-5 money is used to pay off bridge loans as long as
such loans were always meant to be a short-term fix while other
arrangements were being made. In that the EB-5 filing process is so
complex it is highly unlikely that EB-5 money being used to pay off
bridge financing is happened upon by sheer luck. Although
theoretically such a possibility is not affirmatively ruled-out! It
is just very highly improbable.
8. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 8 B. Promotion of Economic Growth within the
Selected Geographic Area Section 610(a) of the 1993 Appropriations
Act, as amended, provides that a regional center shall have
jurisdiction over a limited geographical area for the promotion of
economic growth, including increased NON-PRECEDENT DECISION Page 5
export sales, improved regional productivity, job creation, or
increased domestic capital investment. The regulation at 8 C.F.R.
204.6(m)(3)(i) provides that a regional center shall submit a
proposal that clearly describes how it will focus on a geographical
region of the United States, and how it will promote economic
growth through increased export sales, improved regional
productivity, job creation, and increased domestic capital
investment. As previously discussed, the "Economic Benefit
Analysis: FY2010 [REDACTED] and "Economic Impact Analysis: Fiscal
Year 2013" reflect only the economic impact of the [REDACTED]. They
do not reflect how [REDACTED] would promote economic growth within
the geographic area. In fact, neither analysis mentions [REDACTED].
On appeal, the applicant's managing member claims that the original
economic impact study "was specific to employment and economic
benefits related exclusively to our airport location," and that he
personally compiled a table claiming that the revenue sources,
earnings sources, and employment sources were related to [REDACTED]
jobs. The applicant's revised table purportedly relates to economic
benefits from [REDACTED] within the "Airport Service Area." On the
Form I-924, however, the applicant does not define the geographic
area of the proposed regional center other than to provide the
location of the [REDACTED] hangar. As the applicant has not defined
the geographic boundaries of the proposed regional center, the
applicant has not established that the revised table is relevant.
Moreover, the applicant has not provided any documentation in order
to support his economic multipliers, one of which differs from the
similar chart in the initial economic analysis. The applicant also
does not explain the source of the visitor spending, wage, on-
airport benefits, and visitor benefits' numbers, which drive his
calculation of secondary economic benefits using multipliers. In
fact, the applicant's managing member stated in his appellate
statement that he "was only able to personally substantiate the
building rental since [he did] not have detailed information on the
additional spending required to keep the jets operational on a
daily basis." At the initial filing of the application, the
applicant did not claim any intention to purchase additional
hangars or to expand [REDACTED]. In response to the chiefs NOID,
the applicant's managing member claimed that his "only option at
this stage to help preserve these existing jobs is by making
[REDACTED] an attractive term offer for lease extensions."1 The
applicant claims no further plans to expand [REDACTED], offer any
new projects, or create any further jobs; rather, the applicant
claimed it would maintain the 2001 staffing levels. Accordingly,
the applicant has not demonstrated that the regional center will
promote economic growth pursuant to the regulation at 8 C.F.R.
204.6(m)(3)(i). __________________________________ 1 At the time of
the applicant's interview, the applicant's managing member claimed
that he was thinking of purchasing additional hangars and was in
negotiations with three other companies. On appeal, the applicant's
managing member states that this "potential purchase ... would not
have been an addition to the [REDACTED] regional center application
for many reasons," and
9. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 9 was "not related to the [REDACTED] current
application." Accordingly, the possibility that the applicant's
managing member might purchase additional hangars is not probative
to whether the applicant will promote economic growth. Firstly,
according to footnote 1, this applicant was interviewed. That seems
out of the ordinary to say the least. Im just pointing it out and
will let it go. The next thing that clinches the correctness of the
denial, for me is that the applicant affirmed that there was NO
FUTURE for the Regional Center. It seems obvious to me but
apparently it is NOT obvious to everyone out there (and I do mean
out there), that something that exists as part of a Program was
never intended to be used as a ONE-TIME ONLY WILDCARD. That would
make no sense whatsoever! NON-PRECEDENT DECISION Page 6 C. Pooled
Investment Beyond the chiefs decision, the applicant's proposal is
not consistent with the purpose of concentrating pooled investment2
Section 610(a) of the 1993 Appropriations Act, as amended, provides
that "[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 Immigrant Investor Program was
implemented with the goal of spurring greater economic growth in
the geographic area in which the regional center is developed. EB-5
Adjudications Policy, PM-602- 0083, p. 14 (May 30, 2013). The
employment creation requirements for an investor under the program
are essentially the same as in the standard employment creation
investor program, except investments made through regional centers
can take advantage of a more expansive concept of job creation
including both direct and indirect jobs. 8 C.F.R. 204.6(e),
204.6(j)(4)(iii), and 204.6(m)(7)(ii). It is investments with the
potential for greater regional economic growth from a pooled
investment that allow an investor to rely on indirect job creation.
The applicant has maintained throughout this proceeding, including
on appeal, that the applicant's managing member will be the only
investor, and he has no intention of pooling funds from other
investors. The applicant seeks approval for a regional center so
that the managing member can then file Form I-526 based on his
previous investment located within what would become a regional
center and use the existing indirect jobs. As the applicant's
managing member will be the sole investor, and the proposal does
not include any plans for future investors or project the need for
additional capital, the proposal is not "consistent with the
purpose of concentrating pooled investment." Section 610(a) of the
1993 Appropriations Act, as amended. Therefore, the applicant's
proposal does not meet the requirements for a regional center
pursuant to the statute. III. CONCLUSION The appeal will be
dismissed for the above stated reasons. In application proceedings,
it is the applicant's burden to establish eligibility for the
immigration benefit sought. Section 291 of the Act, 8 U.S.C. 1361.
Here, the applicant has not met that burden. ORDER: The appeal is
dismissed.
10. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 10 ____________________________________ 2 We may
dismiss an appeal on an application that fails to comply with the
technical requirements of the law even if the underlying decision
does not identify all of the grounds for denial. See Spencer
Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043
(E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also
Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the
AAO conducts appellate review on a de novo basis). Once again I
find myself repeating and restating what I feel is quite obvious
but which certain other do not seem to grasp. Forgive me if you are
sick and tired of hearing this same diatribe, you can stop reading
now. Here goes: The Regional Center solely exists within a program.
The Program parameters are written with forward looking statements
in the statute itself. The regulations were promulgated with that
same prospective slant. For example: o 8 CFR 204.6(m) was
promulgated shortly after Congress passed the law creating the
Program because Congress dumped that responsibility in the lap of
the Executive Branch. o 8 CFR 204.6(m)(4) initially allowed the
first Regional Center Proposals to be filed on August 24, 1993. o 8
CFR 204.6(m)(8) initially allowed the first I-526 Visa Petitions to
be filed under the Program on October 1, 1993, which was both the
first day of a new fiscal year and more than a month after the
first Regional Center Proposals could be submitted. o 8 CFR
204.6(m)(8) additionally stipulated that such affiliated I-526 Visa
Petitions could be filed in accordance with the provisions of this
section if the alien entrepreneur has invested or is actively in
the process of investing within a regional center which has been
approved..for participation in the Program. o 8 CFR
204.6(m)(7)states: Requirements for alien entrepreneurs. An alien
seeking an immigrant visa as an alien entrepreneur under the
Immigrant Investor Pilot Program must demonstrate that his or her
qualifying investment is within a regional center approved pursuant
to paragraph (m)(4) of this section and that such investment will
create jobs indirectly through revenues generated from increased
exports resulting from the new commercial enterprise. o Although
the dates are now meaningless by themselves, when viewed for
context sake, they tell us quite a bit more. In order to be allowed
to file as affiliated with a Regional Center, that Regional Center
must have been approved already.
11. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 11 ABOUT THE AUTHOR I tell you what you NEED to
hear, not what you WANT to hear! Joseph P. Whalen Independent EB-5
Consultant, EB-5 Advocate, Mentor, Trainer and Advisor 238 Ontario
Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 (cell) or
(716) 768-6506 (home, land-line) E-mail: [email protected]
web http://www.slideshare.net/BigJoe5 or
http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: The
opinions expressed herein are those of the writer only. That is to
say that they are opinions of a layperson, non-attorney,
non-economist, non-accountant, non-FINRA or SEC registered broker
or adviser. Any information or consultation that seems like
incidental investment advice is intended merely as educational,
coaching, and mentoring3. Opinions are based on work experience as
an Adjudications Officer within INS and USCIS with particular
involvement in the revitalization of USCIS EB-5 Program, especially
that portion dealing with Regional Centers. This writer wrote the
Unofficial Instructions on how to apply for Regional Center
Designation which later formed the basis for the I-924 Form
Instructions. The writer is an outspoken advocate for improved
adjudications at USCIS. Lastly, this reviewer is published in
various immigration law outlets with well over 100 scholarly
articles and opinion pieces widely circulated as well as a
published contributing author in three EB-5 Law Books; co-editor in
the most recent. NAICS Code: 611430 Professional and Management
Development Training 2012 naics definition: 611430 professional and
management development training This industry comprises
establishments primarily engaged in offering an array of short
duration courses and seminars for management and professional
development. Training for career development may be provided
directly to individuals or through employers' training programs;
and courses may be customized or modified to meet the special needs
of customers. Instruction may be provided in diverse settings, such
as the establishment's or client's training facilities, educational
institutions, the workplace, or the home, and through diverse
means, such as correspondence, television, the internet, or other
electronic and distance-learning methods. The training provided by
these establishments may include the use of simulators and
simulation methods. Thats My Two-Cents, For Now! 3 See: 15 U.S.C.
80b2. (a)(11) or go to:
http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b-2%20edition:prelim)%20OR%20(granuleid:USC-prelim-
title15-section80b-2)&f=treesort&edition=prelim&num=0&jumpTo=true
12. Contact: [email protected] (716)604-4233 OR
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13. Contact: [email protected] (716)604-4233 OR
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14. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 14
15. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 15
16. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 16
17. Contact: [email protected] (716)604-4233 OR
(716)768-6506 Page 17