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I am in favor of adding appeal rights to USCIS EB-5 regulations and making such appeal mandatory as to exhaustion of administrative rights BEFORE any NTA could be issued or before an action is considered "a final agency action" that could be challenged under the APA. Also, pending Removal Proceedings should eventually allow the case to rise to the various Circuit Courts of Appeals.
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The Case for AAO Appeals for I-829 Petitions By Joseph P. Whalen (October 13, 2014)
I. INTRODUCTION
As things stand now, when an I-829, Petition by Entrepreneur to Removal 1
Conditions is denied, USCIS is supposed to terminate status and issue a Notice to 2
Appear (NTA) for Removal Proceedings and place the alien’s future in the hands of 3
an Immigration Judge (IJ). Technically, the alien can “renew” their petition and try 4
to make their case to the IJ. The reality is that no IJ wants to deal with and precious 5
few, if any, are knowledgeable enough to tackle the issues involved. The natural 6
progression for the case is a “rubber-stamp” of whatever USCIS determined and IF 7
that case were further challenged THEN it would go to the Board of Immigration 8
Appeals (BIA) who would perhaps expound a bit but in the end merely mask their 9
own “rubber-stamp” of whatever USCIS determined. There would be nothing wrong 10
with that because, USCIS would most likely have “certified” the denial to AAO 11
before releasing it to EOIR through issuance of the NTA. One more consideration 12
is that ICE counsel would not be equipped to deal with the intricacies involved so 13
would also most likely be relying on whatever USCIS had determined. In the end, 14
IF the BIA decision were further challenged, THEN it would go to the Circuit Court 15
of Appeals with jurisdiction. The final reality is that the Circuit Court would be 16
more likely than not reviewing the essence of the AAO Decision. The Circuit 17
Courts have a wider arrange of experience in that they deal with the full gamut of 18
criminal and civil cases across many contexts so would be, or could easily become, 19
well-equipped to substantially tackle the intricate questions involved in an EB-5 case. 20
They have done it before. 21
II. A NOTE ABOUT THE CURRENT REGULATIONS
As things now stand, the bulk of the EB-5 regulations were written by Legacy INS 22
which was a law enforcement agency (LEA) first and foremost. The benefits 23
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adjudications were a very large part of the workload but were subjugated to the “gung 1
ho” quasi-military attitudes and behaviors associated with the law enforcement side 2
of the agency. The current regulations indicate that there is no direct appeal to the 3
AAO for a denied I-829 and the status is to be terminated and an NTA is to be 4
issued, period. However, there is also some wiggle room that allows USCIS to 5
accept late filed I-829s and there is authority to “stay” proceedings. In essence there 6
is ample authority for an IJ to stop removal proceedings either by administrative 7
closure, terminating proceedings, or granting a joint motion to remand the case back 8
to USCIS. 9
Current regulations are awkward and cumbersome. IF there were a direct AAO 10
appeal path, it would be well worth it and more cost effective. Under the current 11
scheme, many I-829 Denials get certified to AAO anyway and there is no fee 12
charged for it. In addition, AAO would then be in much better position to issue 13
Precedent Decisions relating to this aspect of EB-5 via decisions on direct appeals 14
rather than on any certified decision. 15
III. INA § 216A 16
The initial “conditional” nature of an EB-5 immigrant’s status is mandated and 17
controlled by statute. The criteria necessary for the lifting of conditions is stated in, 18
and the implementing regulations derive from, the statute. The statute does not 19
forbid an administrative appeal to AAO. Have a look for yourself, more discussion 20
on this topic to follow the raw statute (included for easy reference). 21
INA § 216A [8 U.S.C. §1186b] Conditional permanent resident status for certain 22 alien entrepreneurs, spouses, and children 23
(a) In general 24
(1) Conditional basis for status 25 Notwithstanding any other provision of this chapter, an alien entrepreneur (as 26
defined in subsection (f)(1) of this section), alien spouse, and alien child (as 27 defined in subsection (f)(2) of this section) shall be considered, at the time of 28 obtaining the status of an alien lawfully admitted for permanent residence, to have 29
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obtained such status on a conditional basis subject to the provisions of this 1 section. 2
(2) Notice of requirements 3
(A) At time of obtaining permanent residence 4
At the time an alien entrepreneur, alien spouse, or alien child obtains 5 permanent resident status on a conditional basis under paragraph (1), the 6 Attorney General [USCIS]1 shall provide for notice to such an 7
entrepreneur, spouse, or child respecting the provisions of this section and 8 the requirements of subsection (c)(1) of this section to have the 9
conditional basis of such status removed. 10
(B) At time of required petition 11 In addition, the Attorney General [USCIS] shall attempt to provide notice 12
to such an entrepreneur, spouse, or child, at or about the beginning of the 13 90-day period described in subsection (d)(2)(A) of this section, of the 14
requirements of subsection (c)(1) of this section. 15
(C) Effect of failure to provide notice 16 The failure of the Attorney General [USCIS] to provide a notice under this 17
paragraph shall not affect the enforcement of the provisions of this section 18 with respect to such an entrepreneur, spouse, or child. 19
(b) Termination of status if finding that qualifying entrepreneurship improper 20 [INCLUDES: FRAUD/MISREPRESENTATION/ANY CRIMINALITY] 21
(1) In general 22
In the case of an alien entrepreneur with permanent resident status on a 23 conditional basis under subsection (a) of this section, if the Attorney General 24
[USCIS] determines, before the second anniversary of the alien's obtaining the 25 status of lawful admission for permanent residence, that— 26
(A) the investment in the commercial enterprise was intended solely as a 27
means of evading the immigration laws of the United States, 28
(B) (i) the alien did not invest, or was not actively in the process of 29
investing, the requisite capital; or 30
(ii) the alien was not sustaining the actions described in clause (i) 31 throughout the period of the alien's residence in the United States; 32
or 33
1 The authority changed from the Attorney General to the Secretary of Homeland Security then delegated to USCIS. References to “the Service” are now references to “USCIS”. USCIS is
shown for convenience sake.
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(C) the alien was otherwise not conforming to the requirements of section 1 1153(b)(5) of this title, [INA § 203(b)(5)] 2
3 then the Attorney General [USCIS] shall so notify the alien involved and, subject 4
to paragraph (2), shall terminate the permanent resident status of the alien (and 5 the alien spouse and alien child) involved as of the date of the determination. 6
(2) Hearing in removal proceeding 7
Any alien whose permanent resident status is terminated under paragraph (1) may 8 request a review of such determination in a proceeding to remove the alien. In 9 such proceeding, the burden of proof shall be on the Attorney General [USCIS] to 10
establish, by a preponderance of the evidence, that a condition described in 11 paragraph (1) is met. 12
(c) Requirements of timely petition and interview for removal of condition 13
(1) In general 14
In order for the conditional basis established under subsection (a) of this section 15 for an alien entrepreneur, alien spouse, or alien child to be removed— 16
(A) the alien entrepreneur must submit to the Attorney General[USCIS], 17
during the period described in subsection (d)(2) of this section, a petition 18 which requests the removal of such conditional basis and which states, 19
under penalty of perjury, the facts and information described in subsection 20 (d)(1) of this section, and 21
(B) in accordance with subsection (d)(3) of this section, the alien 22
entrepreneur must appear for a personal interview before an officer or 23 employee of the Service [USCIS] respecting the facts and information 24
described in subsection (d)(1) of this section. 25
(2) Termination of permanent resident status for failure to file petition or 26 have personal interview 27
(A) In general 28 In the case of an alien with permanent resident status on a conditional 29
basis under subsection (a) of this section, if— 30
(i) no petition is filed with respect to the alien in accordance with 31 the provisions of paragraph (1)(A), or 32
(ii) unless there is good cause shown, the alien entrepreneur fails to 33 appear at the interview described in paragraph (1)(B) (if required 34
under subsection (d)(3) of this section), 35 36 the Attorney General [USCIS] shall terminate the permanent resident 37
status of the alien (and the alien's spouse and children if it was obtained on 38 a conditional basis under this section or section 1186a of this title) as of 39
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the second anniversary of the alien's lawful admission for permanent 1 residence. 2
(B) Hearing in removal proceeding 3 In any removal proceeding with respect to an alien whose permanent 4
resident status is terminated under subparagraph (A) [← failure to file I-5 829], the burden of proof shall be on the alien to establish compliance with 6 the conditions of paragraphs (1)(A) and (1)(B). 7
(3) Determination after petition and interview 8
(A) In general 9
If— 10 (i) a petition is filed in accordance with the provisions of paragraph 11 (1)(A), and 12
(ii) the alien entrepreneur appears at any interview described in 13 paragraph (1)(B), 14
15 the Attorney General [USCIS] shall make a determination, within 90 days 16 of the date of the such filing or interview (whichever is later), as to 17
whether the facts and information described in subsection (d)(1) of this 18 section and alleged in the petition are true with respect to the qualifying 19
commercial enterprise. 20
(B) Removal of conditional basis if favorable determination 21 If the Attorney General [USCIS] determines that such facts and 22
information are true, the Attorney General [USCIS] shall so notify the 23 alien involved and shall remove the conditional basis of the alien's status 24
effective as of the second anniversary of the alien's lawful admission for 25 permanent residence. 26
(C) Termination if adverse determination 27
If the Attorney General [USCIS] determines that such facts and 28 information are not true, the Attorney General [USCIS] shall so notify the 29
alien involved and, subject to subparagraph (D), [?the Attorney 30 General?]2 shall terminate the permanent resident status of an alien 31 entrepreneur, alien spouse, or alien child as of the date of the 32
determination. 33
(D) Hearing in removal proceeding 34
Any alien whose permanent resident status is terminated under 35 subparagraph (C) may request a review of such determination in a 36
2 It is unclear if the power to terminate status remains with the Attorney General in this clause. An argument may be made either way but I would lean towards “yes, send the alien to an
Immigration Judge UNLESS an AAO appeal process is adopted”.
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proceeding to remove the alien. In such proceeding, the burden of proof 1 shall be on the Attorney General [USCIS] to establish, by a preponderance 2
of the evidence, that the facts and information described in subsection 3 (d)(1) of this section and alleged in the petition are not true with respect to 4
the qualifying commercial enterprise. 5
(d) Details of petition and interview 6 (1) Contents of petition 7
Each petition under subsection (c)(1)(A) of this section shall contain facts and 8 information demonstrating that the alien— 9
(A) 10 (i) invested, or is actively in the process of investing, the requisite 11 capital; and 12
(ii) sustained the actions described in clause (i) throughout the 13 period of the alien's residence in the United States; and 14
(B) is otherwise conforming to the requirements of section 1153(b)(5) of 15 this title. 16
(2) Period for filing petition 17
(A) 90-day period before second anniversary 18 Except as provided in subparagraph (B), the petition under subsection 19
(c)(1)(A) of this section must be filed during the 90-day period before the 20 second anniversary of the alien's lawful admission for permanent 21 residence. 22
(B) D[L]ate petitions for good cause 23 Such a petition may be considered if filed after such date, but only if the 24
alien establishes to the satisfaction of the Attorney General [USCIS] good 25 cause and extenuating circumstances for failure to file the petition during 26 the period described in subparagraph (A). 27
(C) Filing of petitions during removal 28 In the case of an alien who is the subject of removal hearings as a result of 29
failure to file a petition on a timely basis in accordance with subparagraph 30 (A), the Attorney General3 may stay such removal proceedings against 31 an alien pending the filing of the petition under subparagraph (B). 32
(3) Personal interview 33 The interview under subsection (c)(1)(B) of this section shall be conducted within 34
90 days after the date of submitting a petition under subsection (c)(1)(A) of this 35 section and at a local office of the Service [USCIS], designated by the Attorney 36
3 In this reference, since it was written prior to the creation of DHS, may now be a “shared”
authority allowing USCIS to refrain from issuing an NTA, ICE Counsel to join a Motion to
Terminate/Admin Close and/or Remand the case back to USCIS, or an IJ to administratively close
or terminate proceedings, without prejudice to re-calendar.
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General [USCIS], which is convenient to the parties involved. The Attorney 1 General [USCIS], in the Attorney General's [its] discretion, may waive the 2
deadline for such an interview or the requirement for such an interview in such 3 cases as may be appropriate. 4
(e) Treatment of period for purposes of naturalization 5 For purposes of subchapter III, in the case of an alien who is in the United States as a 6 lawful permanent resident on a conditional basis under this section, the alien shall be 7
considered to have been admitted as an alien lawfully admitted for permanent residence 8 and to be in the United States as an alien lawfully admitted to the United States for 9
permanent residence. [This allows filing an N-400 but does not allow taking the Oath 10 until conditions are successfully removed.] 11
(f) Definitions 12 In this section: 13
(1) The term “alien entrepreneur” means an alien who obtains the status of an 14
alien lawfully admitted for permanent residence (whether on a conditional basis 15 or otherwise) under section 1153(b)(5) of this title. 16
(2) The term “alien spouse” and the term “alien child” mean an alien who 17
obtains the status of an alien lawfully admitted for permanent residence (whether 18 on a conditional basis or otherwise) by virtue of being the spouse or child, 19
respectively, of an alien entrepreneur. 20
(3) The term “commercial enterprise” includes a limited partnership. 21
IV. WHAT DOES THE STATUTE DEMAND FOR I-829 PROCESSING? 22
In essence, INA § 216A (c)(3)(A) demands that USCIS make a determination 23
within 90 days of filing OR of an interview – whichever is LATER, and (C) demands 24
that LPR status must be terminate if the result is to deny the petition. When 25
Congress passed the Homeland Security Act in 2002 (HSA 2002), there was a 26
general shift in statutory authority. USCIS was carved out of the former INS and 27
landed in DHS under the Secretary of Homeland Security. AAO landed in USCIS 28
and exercises delegated authority from the Secretary. The EOIR remained in DOJ 29
under the Attorney General. Immigration Judges and the BIA exercise the authority 30
delegated from the Attorney General. The two functions stated in INA § 216A 31
(c)(3)(C), should be split between the Secretary and the Attorney General. 32
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I have found over the years that folks are quite willing to “waive” deadlines 1
whenever it is in their favor to do so, IF it is within their power to do so. The alien 2
entrepreneur may waive the statutory deadline imposed on USCIS by either 3
expressly doing so OR by not demanding that it be enforced. USCIS is required to 4
actually reach a decision as to the question of: removal of conditions versus 5
termination of status. Additional “Due Process” can be affirmatively provided by 6
regulation or a regulation may simply serve to clarify the above-referenced “split” in 7
INA § 216A (c)(3)(C). When additional “rights” are offered even if just as an 8
“option”, I can’t see how any “customer” affected by them could object to them. 9
With all of the foregoing in mind, I sure hope that USCIS will consider allowing at 10
least “optional” AAO appeal rights for the I-829 Petition as opposed to immediate 11
status termination and NTA issuance. Additionally, I don’t like seeing aliens’ whose 12
status should have been terminated, being allowed to languish and being forced to 13
file lawsuits when an AAO appeal would potentially be more beneficial all around. 14
V. 8 § CFR 216.6
§ 216.6 Petition by entrepreneur to remove conditional basis of lawful permanent resident 15 status. 16
(a) Filing the petition— 17
(1) General procedures. A petition to remove the conditional basis of the permanent resident 18 status of an alien accorded conditional permanent residence pursuant to section 203(b)(5) of the 19 Act must be filed by the alien entrepreneur on Form I-829, Petition by Entrepreneur to Remove 20 Conditions. The alien entrepreneur must file Form I-829 within the 90-day period preceding the 21 second anniversary of his or her admission to the United States as a conditional permanent 22 resident. Before Form I-829 may be considered as properly filed, it must be accompanied by the 23 fee required under §103.7(b)(1) of this chapter, and by documentation as described in paragraph 24 (a)(4) of this section, and it must be properly signed by the alien. Upon receipt of a properly filed 25 Form I-829, the alien's conditional permanent resident status shall be extended automatically, if 26 necessary, until such time as the director has adjudicated the petition. The entrepreneur's spouse 27 and children should be included in the petition to remove conditions. Children who have reached 28 the age of twenty-one or who have married during the period of conditional permanent residence 29 and the former spouse of an entrepreneur, who was divorced from the entrepreneur during the 30 period of conditional permanent residence, may be included in the alien entrepreneur's petition or 31 may file a separate petition. 32
(2) [Reserved] 33
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(3) Physical presence at time of filing. A petition may be filed regardless of whether the alien is 1 physically present in the United States. However, if the alien is outside the United States at the 2 time of filing, he or she must return to the United States, with his or her spouse and children, if 3 necessary, to comply with the interview requirements contained in the Act. Once the petition has 4 been properly filed, the alien may travel outside the United States and return if in possession of 5 documentation as set forth in §211.1(b)(1) of this chapter, provided the alien complies with the 6 interview requirements described in paragraph (b) of this section. An alien who is not physically 7 present in the United States during the filing period but subsequently applies for admission to the 8 United States shall be processed in accordance with §235.11 of this chapter. 9
(4) Documentation. The petition for removal of conditions must be accompanied by the following 10 evidence: 11
(i) Evidence that a commercial enterprise was established the alien. Such evidence may 12 include, but is not limited to, Federal income tax returns; 13
[(i) Evidence that the “new commercial enterprise” meets the applicable definitions 14 and requirements as described in the controlling statute and in section 204.6, of this 15 title.]
4 16
(ii) Evidence that the alien invested or was actively in the process of investing the 17 requisite capital. Such evidence may include, but is not limited to, an audited financial 18 statement or other probative evidence; and 19
(iii) Evidence that the alien sustained the actions described in paragraph (a)(4)(i) and 20 (a)(4)(ii) of this section throughout the period of the alien's residence in the United States. 21 The alien will be considered to have sustained the actions required for removal of 22 conditions if he or she has, in good faith, substantially met the capital investment 23 requirement of the statute and continuously maintained his or her capital investment over 24 the two years of conditional residence. Such evidence may include, but is not limited to, 25 bank statements, invoices, receipts, contracts, business licenses, Federal or State 26 income tax returns, and Federal or State quarterly tax statements. 27
(iv) Evidence that the alien created or can be expected to create within a reasonable time 28 ten full-time jobs for qualifying employees. In the case of a “t roubled business” as defined 29 in 8 CFR 204.6(j)(4)(ii), the alien entrepreneur must submit evidence that the commercial 30 enterprise maintained the number of existing employees at no less than the pre-31 investment level for the period following his or her admission as a conditional permanent 32 resident. Such evidence may include payroll records, relevant tax documents, and Forms 33 I-9. 34
(5) Termination of status for failure to file petition. Failure to properly file Form I-829 within the 90-35 day period immediately preceding the second anniversary of the date on which the alien obtained 36 lawful permanent residence on a conditional basis shall result in the automatic termination of the 37 alien's permanent resident status and the initiation of deportation proceedings. The director shall 38 send a written notice of termination and an order to show cause to an alien entrepreneur wh o fails 39 to timely file a petition for removal of conditions. No appeal shall lie from this decision; however, 40 the alien may request a review of the determination during deportation proceedings. In 41 deportation proceedings, the burden of proof shall rest with the alien to show by a preponderance 42 of the evidence that he or she complied with the requirement to file the petition within the 43 designated period. The director may deem the petition to have been filed prior to the second 44 anniversary of the alien's obtaining conditional permanent resident status and accept and 45
4 A suggested change because current (4)(i) is obsolete due to statutory change.
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consider a late petition if the alien demonstrates to the director's satisfaction that failure to file a 1 timely petition was for good cause and due to extenuating circumstances. If the late petition is 2 filed prior to jurisdiction vesting with the immigration judge in deportation proceedings and the 3 director excuses the late filing and approves the petition, he or she shall restore the alien's 4 permanent resident status, remove the conditional basis of such status, and cancel any 5 outstanding order to show cause in accordance with §242.7 of this chapter. If the petition is not 6 filed until after jurisdiction vests with the immigration judge, the immigration judge may terminate 7 the matter upon joint motion by the alien and the Service. 8
(6) Death of entrepreneur and effect on spouse and children. If an entrepreneur dies during the 9 prescribed two-year period of conditional permanent residence, the spouse and children of the 10 entrepreneur will be eligible for removal of conditions if it can be demonstrated that the conditions 11 set forth in paragraph (a)(4) of this section have been met. 12
(b) Petition review— 13
(1) Authority to waive interview. The director of the service center shall review the Form I-829 and 14 the supporting documents to determine whether to waive the interview required by the Act. If 15 satisfied that the requirements set forth in paragraph (c)(1) of this section have been met, the 16 service center director may waive the interview and approve the petition. If not so satisfied, then 17 the service center director shall forward the petition to the district director having jurisdiction over 18 the location of the alien entrepreneur's commercial enterprise in the United States so that an 19 interview of the alien entrepreneur may be conducted. The director must either waive the 20 requirement for an interview and adjudicate the petition or arrange for an interview within 90 days 21 of the date on which the petition was properly filed. 22
(2) Location of interview. Unless waived, an interview relating to the Form I-829 shall be 23 conducted by an immigration examiner or other officer so designated by the district director at the 24 district office that has jurisdiction over the location of the alien entrepreneur's commercial 25 enterprise in the United States. 26
(3) Termination of status for failure to appear for interview. If the alien fails to appear for an 27 interview in connection with the petition when requested by the Service, the alien's permanent 28 resident status will be automatically terminated as of the second anniversary of the date on which 29 the alien obtained permanent residence. The alien will be provided with written notification of the 30 termination and the reasons therefore, and an order to show cause shall be issued placing the 31 alien under deportation proceedings. The alien may seek review of the decision to terminate his 32 or her status in such proceedings, but the burden shall be on the alien to establish by a 33 preponderance of the evidence that he or she complied with the interview requirements. If the 34 alien has failed to appear for a scheduled interview, he or she may submit a written request to the 35 district director asking that the interview be rescheduled or that the interview be waived. That 36 request should explain his or her failure to appear for the scheduled interview, and if a request for 37 waiver of the interview, the reasons such waiver should be granted. If the district director 38 determines that there is good cause for granting the request, the interview may be rescheduled or 39 waived, as appropriate. If the district director waives the interview, he or she shall restore the 40 alien's conditional permanent resident status, cancel any outstanding order to show cause in 41 accordance with §242.7 of this chapter, and proceed to adjudicate the alien's petition. If the 42 district director reschedules that alien's interview, he or she shall restore the alien's conditional 43 permanent resident status, and cancel any outstanding order to show cause in accordance with 44 §242.7 of this chapter. If the interview is rescheduled at the request of the alien, the Service shall 45 not be required to conduct the interview within the 90-day period following the filing of the petition. 46
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(c) Adjudication of petition. 1
(1) The decision on the petition shall be made within 90 days of the date of filing or within 90 days 2 of the interview, whichever is later. In adjudicating the petition, the director shall determine 3 whether: 4
(i) A commercial enterprise was established [?funded?] by the alien; [?NCE meets 5 applicable requirements?]; 6
(ii) The alien invested or was actively in the process of investing the requisite capital; and 7
(iii) The alien sustained the actions described in paragraphs (c)(1)(i) and (c)(1)(ii) of this 8 section throughout the period of the alien's residence in the United States. The alien will 9 be considered to have sustained the actions required for removal of conditions if he or 10 she has, in good faith, substantially met the capital investment requirement of the statute 11 and continuously maintained his or her capital investment over the two years of 12 conditional residence. 13
(iv) The alien created or can be expected to create within a reasonable period of time ten 14 full-time jobs to qualifying employees. In the case of a “t roubled business” as defined in 8 15 CFR 204.6(j)(4)(ii), the alien maintained the number of existing employees at no less than 16 the pre-investment level for the previous two years. 17
(2) If derogatory information is determined regarding any of these issues or it becomes known to 18 the government that the entrepreneur obtained his or her investment funds through other than 19 legal means (such as through the sale of illegal drugs), the director shall offer the alien 20 entrepreneur the opportunity to rebut such information. If the alien entrepreneur fails to overcome 21 such derogatory information or evidence the investment funds were obtained through other than 22 legal means, the director may deny the petition, terminate the alien's permanent resident status, 23 and issue an order to show cause. If derogatory information not relating to any of these issues is 24 determined during the course of the interview, such information shall be forwarded to the 25 investigations unit for appropriate action. If no unresolved derogatory information is determined 26 relating to these issues, the petition shall be approved and the conditional basis of the alien's 27 permanent resident status removed, regardless of any action taken or contemplated regarding 28 other possible grounds for deportation. 29
(d) Decision— 30
(1) Approval. If, after initial review or after the interview, the director approves the petition, he or 31 she will remove the conditional basis of the alien's permanent resident status as of the second 32 anniversary of the alien's entry as a conditional permanent resident. He or she shall provide 33 written notice of the decision to the alien and shall require the alien to report to the appropriate 34 district office for processing for a new Permanent Resident Card, Form I -551, at which time the 35 alien shall surrender any Permanent Resident Card previously issued. 36
(2) Denial. If, after initial review or after the interview, the director denies the petition, he or she 37 shall provide written notice to the alien of the decision and the reason(s) therefor, and shall issue 38 an order to show cause why the alien should not be deported from the United States. The alien's 39 lawful permanent resident status and that of his or her spouse and any children shall be 40 terminated as of the date of the director's written decision. The alien shall also be instructed to 41 surrender any Permanent Resident Card previously issued by the Service. No appeal shall lie 42 from this decision; however, the alien may seek review of the decision in deportation 43 proceedings. In deportation proceedings, the burden shall rest with the Service to establish by a 44
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preponderance of the evidence that the facts and information in the alien's petition for removal of 1 conditions are not true and that the petition was properly denied. 2
[59 FR 26591, May 23, 1994, as amended at 63 FR 70315, Dec. 21, 1998; 74 FR 26939, June 5, 2009] 3
It should be noted that the preceding regulations were only superficially updated 4
in 2009. They are woefully inadequate and out of touch with the current state of 5
the law, as well as EB-5 theory and practice. They are also lacking in regard to 6
current processing steps, such as the need to perhaps report to an ASC for 7
biometrics collection rather than to a local district or “field” office. USCIS has 8
announced plans to update EB-5 regulations I have offered some suggestions. I 9
hope I am not alone in that effort. 10
VI. WHAT DO THE CONTROLLING REGULATIONS TELL US?
The I-829 is filed and adjudicated in accordance with 8 CFR § 216.6 as shown 11
above and in accordance with the form instructions. I did have a little bit to do with 12
the changes to those form instructions the last time the form was up for review. I 13
pleaded with USCIS to do away with the redundant request for previously submitted 14
court documents and to narrow the request to only any new items since the prior 15
submission of such information. As long as the narrative has rolled around to the 16
topic of “information” I want to point out the phrase “facts and information” which 17
is rather ubiquitous in the statute but is reworded in the regulations pertaining to the 18
“lifting of conditions”. 19
To my mind, the popular phrase “facts and information” means presenting 20
logical narrative or “legal argument” or “brief” which is supported by corroborating 21
evidence leading to: (1) fact-finding, (2) the drawing of reasonable inferences, and (3) 22
reaching a conclusion through sound judgment. When one has to show that money 23
was spent and how it was spent, there are tons of pieces of paper to choose from. 24
The “information” presented should be no more than what is necessary to 25
demonstrate the desired “facts”. The corroborating evidence needs to be selected 26
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carefully. At all costs, the “kitchen sink” approach to case preparation is to be 1
avoided like the plague. That sloppy overly inclusive approach demonstrates 2
confusion on the part of the petitioner or counsel and is most likely to beget further 3
confusion on the part of the adjudicator. 4
The myriad forms of evidence more likely than not to demonstrate job creation 5
are highly variable. Certain documentation comes from among “specific evidence” 6
listed in the regulation, such as for EB-5 “direct” jobs of the alien entrepreneur. 7
When the alien investor is affiliated with a Regional Center and will be 8
demonstrating EB-5 “indirect” jobs, then the task of evidence selection may be a bit 9
more challenging. One must be clear of which facts are necessary to prove the job 10
creation and then focus on determining which documents will demonstrate those 11
facts. If the BP and EIA were well written and were actually followed, then they are 12
the place to start the process of case preparation. Those foundational documents tell 13
a story of a business and the reasonable methods used to support indirect job 14
creation. 15
When dealing with the somewhat abstract and debatable “facts and information” 16
in an EB-5 case, especially in the Regional Center context, it would be highly 17
desirable to have an in-house administrative appeal path. The EB-5 “expertise” 18
resides within USCIS and it makes better sense to have the primary agency address 19
the key questions before reaching an ultimate decision on the merits . A “merits-20
based” decision is best made before releasing the case to any Immigration Court 21
Removal Proceeding. The present reality is that many I-829s that are to be denied 22
are certified to AAO. At that juncture, the petitioner is notified and provided an 23
opportunity to submit additional evidence and argument to support their version of 24
the “facts and information” needed to lift conditions from LPR status. It’s basically a 25
no-fee automatic appeal. 26
Contact: [email protected] (716) 606-4233 or (716) 768-6506 Page 14
VII. CONCLUSION
I suggest that there be an affirmative right of appeal of the Form I-829, a petition 1
to lift conditions, to AAO which must be exhausted prior to either issuance of an 2
NTA or any ability to file a lawsuit in District Court. Such appeal rights could be 3
introduced through the anticipated EB-5 rulemaking process. By itself, under the 4
current process, certification to AAO prevents the Denial of the “Director” or 5
“Chief” from qualifying as a “final agency action” under the APA [5 U.S.C. § 551] 6
and thereby preventing the filing of a petition in District Court for that type of 7
review. It is also noted that the issuance of an NTA will block the ability to file a suit 8
in District Court while the Removal Proceedings remain in-process. IF a Removal 9
Order is eventually issued then eventually the matter may wind up in a Circuit Court 10
of Appeals. INA § 242 [8 U.S.C. § 1252] governs that review process. 11
§ 5 U.S.C. § 706. Scope of review 12
To the extent necessary to decision and when presented, the reviewing court shall decide all 13 relevant questions of law, interpret constitutional and statutory provisions, and determine the 14
meaning or applicability of the terms of an agency action. The reviewing court shall- 15
(1) compel agency action unlawfully withheld or unreasonably delayed; and 16 (2) hold unlawful and set aside agency action, findings, and conclusions found to be- 17
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 18
(B) contrary to constitutional right, power, privilege, or immunity; 19 (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; 20
(D) without observance of procedure required by law; 21 (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this 22
title or otherwise reviewed on the record of an agency hearing provided by statute; or 23
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the 24 reviewing court. 25
In making the foregoing determinations, the court shall review the whole record or those parts of 26
it cited by a party, and due account shall be taken of the rule of prejudicial error. 27
( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393 .) 28
The last thing that USCIS or AAO want is to be overruled as arbitrary, 29
capricious, for abusing discretion, or otherwise not acting in accordance with law. 30
Contact: [email protected] (716) 606-4233 or (716) 768-6506 Page 15
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 mentoring5. 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 dis tance-learning methods. The training provided by these
establishments may include the use of simulators and simula tion methods.
That’s My Two-Cents, For Now!
5 See: 15 U.S.C. §80b–2. (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
