Wednesday, April 20, 2011

Baker's Dozen

Robert Divine (partner with Baker Donelson, Chattanooga, former Acting Director of USCIS, fellow member of the EB-5 Investors Committee of the American Immigration Lawyers Association, and a personal friend) asked me to prove what USCIS has said and done to show its hostility toward the EB-5 Program.

It was too easy. All of the following issues below come from my file of USCIS misinterpretations of the law or regulations, from official USCIS memos, official requests for additional evidence, or from USCIS stakeholder conference calls and USCIS reports on those calls.

Here's my baker's dirty dozen list.

1. The two-year rule on full investment and creation of jobs for purposes of removal of conditions, which USCIS snatched out of the marriage fraud amendments, without any apparent basis in reality. Why two years? Could have been four or five, if the goal is job creation. Done.
2. First USCIS said constructions jobs did count (2007) then said they didn't (2009), then said construction jobs must last two years (another two-year rule pulled out of the marriage fraud amendments, without any apparent basis in reality). Why not five years? Why not six months? Said.
3. First USCIS said we could have "rural areas" within MSAs, then it said we couldn't. Said.
4. Capital from sole proprietorships is not "personal assets" for purposes of investment. Said and Done.
5. First USCIS examined regional center applications based upon the business plan and the industries and geographic areas requested. Now it is "project-centric" and requires real or exemplar investment projects for each industry or economic sector and each geographic area (looks like county level, not sure). USCIS analyzes and "adjudicates" or "pre-approves" exemplar projects that do not exist and when they are not even asked to adjudicate them, which is very strange. In short, ACFI's application for designation as a regional center would not be approved today because the agency fails to apply its own laws, regulations and official guidance in a manner in keeping with the congressional intent of this job-creation program. Done.
6. USCIS is denying almost one-third of I-829s. As a prospective investor in the EB-5 Program, if I knew there was a one in three chance that I would not get my permanent green card, I would not invest. Done.
7. Given a choice of allowing an amended I-526 or a new I-526 upon the event of a "material change" in an EB-5 investment project, USCIS chose "new petition". Done.
8. The California Service Center (CSC) adjudicates I-526 petitions with the presumption that the applicant is either a terrorist or a drug dealer. CSC adjudicates I-829s without giving weight to or recognizing the "reasonable time" regulatory standard for job creation. Done.
9. First USCIS said we couldn't count indirect jobs outside the boundaries of the regional center. Then it said we could (Mayorkas letter to Sen. Leahy). Then it said we couldn't count indirect or induced jobs outside a TEA (targeted employment area). Then it said we could. Said and who knows?
10. First USCIS said we couldn't gerrymander TEAs, then it said we could, but most recently said we couldn't. Said.
11. CSC immigration service officers are over-relying on the four Administrative Appeals Office (AAO) "precedent decisions" and under-relying on the law and regulations. Requests for additional evidence coming out of the CSC strongly indicate that CSC officers are not using the preponderance of the evidence standard that statute law and case law require them to apply. Instead, CSC officers are imposing the beyond a reasonable doubt evidentiary standard.
12. USCIS's stated goal is 90 days processing time for an I-526 petition. Current processing time often exceeds nine months or more. While the I-526 petitions are pending, in most cases the investment capital sits in escrow. EB-5 investment project developers cannot wait on the capital that long. Many good job-creating investment projects are dying on the vine. Said and Done.
13. In a "troubled business" scenario, in which jobs are preserved rather than created, USCIS has stated that indirect jobs are not considered preserved, then they said they were. Said.

I could have added four or five more issues to this Baker's Dozen, proving that USCIS is confusing the hell out of foreign investors, their lawyers, investment project developers, and people who run regional centers. I hope it is not viewed as hyper-critical of USCIS, which it is not meant to be. I hope it is viewed for what it is: A list of evidence that the agency has mismanaged the EB-5 Program for a very long time to the everlasting detriment of the people the agency's employees are sworn to serve. In my view, the trend will continue.

I have lost hope that this trend will reverse itself.

Boyd Campbell
Vice President and General Counsel

America's Center for Foreign Investment, LLC