Meeting in Washington

I am in Washington, D.C., for a meeting with USCIS Director Alejandro Mayorkas. The EB-5 Investors Committee of the American Immigration Lawyers Association is doing its best to lay out a prescription to treat issues created by USCIS itself that have harmed the EB-5 Program and could take the entire investor visa program down.

I will file a report in this blog when I get back to my office.

More fuzzy thinking, courtesy of USCIS HQ

During the last EB-5 stakeholders call, USCIS HQ issued a Q&A that contained this gem, twice:

Q. If jobs are created on an indefinite full-time basis and then lost (such as by downturn of the business) after all EB-5 capital has been plowed into the business, but before the end of CPR status, can they be counted?

A. Jobs created as a result of the EB-5 investment must be maintained through the entire two-year period of conditional permanent residence. INA 216A(d) and 8 CFR 216.6(c)(iv).

Q. If jobs must last to the end of CPR, what is the critical moment: filing of I-829 (which might precede end of two years of CPR by up to 90 days), end of CPR (two years), or approval of I-829?

A. The job created as a result of the EB-5 investment must be maintained through the entire period of conditional residence. The conditional residence ends when the conditions are removed, at the time of approval of the I-829.

Who knows when jobs will be created or lost? Conditions change, the economy falters, growth is slow. Some EB-5 new commercial enterprises go forward without full funding. Some don't. Some go forward but cannot afford to hire enough workers to have 10 workers for each investor at their individual I-829 petition stage or maybe all 10 workers were not on the job during the investor's two-year conditional residence period, but are on the job when the investor's I-829 petition is filed.

How is it in the interests of USCIS to deny the investor's I-829 petition because all 10 jobs did not exist at the time the investor entered the United States or adjusted status if in the United States. That's an arbitrary date that the investor has little, if any, control over. And, typically, the investor has no control over the new commercial enterprise. USCIS is essentially making the investor responsible for job creation, and that is patently unfair.

Comments like these out of HQ betray lack of knowledge on the part of this agency and failure to take into account business realities. If the jobs are there at the time the I-829 petition is filed with USCIS, I say approve it.

I'm tired of this fuzzy thinking when the focus should be on job creation, stupid!

Please come to Boston

On July 29 I will join my colleagues in Boston for the 2011 EB-5 Investment Summit: Dealmakers Conference. I will deliver information about how to run a regional center. The program indicates all of the bases are covered, so please come to Boston.

For information and to register, go here: http://www.eb5bostonsummit.org/

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
www.acfi-usa.com

U.S. government giving foreign investors the shaft

I've been doing a lot of thinking about EB-5 investors lately.
What happens when they get to the I-829 petition stage (removal of conditions) and there is insufficient information from the investment project that the investor's money was "fully invested" as required by federal regulations?
What happens to the investor if there is insufficient information from the investment project that it created at least 10 U.S. worker jobs as required by federal regulations?
What happens to the investor if the investment project fails? What happens to the investor if a regional center fails?
What happens if the investor is approved for removal of conditions but the investment project goes bankrupt?
Apparently neither Congress nor U.S. Citizenship and Immigration Services (USCIS) gave much thought to this because it wasn't happening when the law was passed and the regulations were written. It's happening now. As everyone knows, the worst recession in our lifetimes delivered a roundhouse punch to the U.S. economy, and the recovery -- which is occurring in some parts of the United States -- is extremely slow.
It is in this economic environment that EB-5 investment projects are not doing well or failing. Insufficient jobs are being created to cover EB-5 investment project investors (minimum of 10 U.S. worker jobs each). EB-5 investors' money is being lost. And the consequences for the foreign investors -- who, in good faith, put their hard-earned money down and in many cases sent their families to the United States and their children to enroll in school -- are brutal and patently unfair and unjust.
When the investors have insufficient information and documentation to deliver to USCIS along with their I-829 petitions, the petitions are denied and the investor and family members -- if in the United States -- are put in deportation (removal) proceedings.
One can argue about the unfairness and injustice of this for quite awhile, but what we (immigration lawyers, Congress, USCIS, regional centers) need to focus on is how to protect the investors. These problems are not their fault and they should not be denied immigration benefits if their money is lost and/or an insuffucient number of U.S. worker jobs is created through no fault of their own.
It is my understanding, although records are incomplete, that USCIS is denying about one-third of the I-829 petitions filed with the California Service Center. This situation is not sustainable if the EB-5 Program is to survive.
News travels fast, and bad news travels faster. If I have a one in three chance of not obtaining a permanent "green card" if I invest through the EB-5 Program, my money is staying home.
There is a precedent in U.S. visa programs for situations where there are failures of eligibility requirements. On October 28, 2009, Congress passed the Department of Homeland Security Appropriations Act for FY2010. Thanks to Brent Renison's organizational skills and relentless lobbying, it contained help for family immigration beneficiaries.
"The Act contains two measures to address survivors’ issues: (1) self-petitioning rights for all widow(er)s of American citizens and their children contained in section 568(c) of the Act; and (2) certain survivors’ rights for family based, employment based, and other immigrants contained in section 568(d)," Renison wrote.
"The 'widow penalty', whereby spouses of U.S. citizens and their children faced automatic denial of a visa petition if the death of the spouse occurred prior to adjudication and prior to two years of marriage, effectively ended upon the passage of § 568(c). That section removes the two-year marriage requirement from the current law that permits widows and widowers ('widow(er)s') of U.S. citizens to file a self-petition for themselves and their children.
"By removing the two-year precondition to a current statutory program, Congress retained the widow(er) self-petition procedure including the requirement to show a good faith marriage. The law does not alter the rights of widow(er)s who were married two years or more, who have been able to self-petition since 1990.
"The deletion of the two-year marriage requirement will allow a widow(er) who was married less than two years at the time of the citizen spouse’s death to file a Form I-360 self-petition within two years of the law’s passage, or within two years of the spouse’s death, whichever is later."
Do you see any parallels by applying the above to the troubled EB-5 Program? First, when it was writing regulations for the EB-5 Program, USCIS plucked the "two-year rule" from the marriage fraud amendments without any consideration of its impact in the business world. That is the two-year conditional period during which the EB-5
investor must "fully invest" his or her money and create 10 U.S. worker jobs.
I am, of course, using the analogy of a deceased U.S. citizen spouse for my proposition that failed EB-5 investment projects or regional centers are akin to the death of a petitioning spouse.
If an EB-5 investment project fails and I, as a foreign investor, have fully invested my money in good faith, should I be able to self-petition for removal of conditions at the I-829 petition phase? I think it's only fair that I be allowed to do so.
What do you think? Should the federal government give these foreign investors the shaft when they cannot (through no fault of their own) meet all of the requirements for removal of conditions (to the permanent "green card"), or should there be a means to self-petition if an EB-5 investment project or regional center fails?

Dogged reporters cover Atlantic Yards

One of the largest development projects in the United States trying to take advantage of the EB-5 Program and foreign investment is Brooklyn Navy Yard in the Atlantic Yards development, a multi-phase project of the New York City Regional Center.
Controversy has dogged the development since its announcement.
Barclays Center is to be the new home of the New Jersey Nets, which would be renamed the Brooklyn Nets.
Two of the most dogged reporters covering the project are Matt Chaban of the New York Observer, and Norman Oder, a blogger who announced last September that he was quitting his day job to write a book about Atlantic Yards.

See: http://www.observer.com/site-search?keys=Atlantic+Yards&sa.x=6&sa.y=15

and

http://www.huffingtonpost.com/norman-oder/reuters-nails-lies-by-pro_b_801070.html

Engagement or Dis-Engagement?

U.S. Citizenship and Immigration Services (USCIS) has an Office of Public Engagement. According to USCIS, "[t]he Office of Public Engagement (OPE) coordinates and directs agency-wide dialogue with external stakeholders. OPE actively collaborates with, and seeks feedback from, stakeholders to inform USCIS policies, priorities, and organizational performance reviews. OPE facilitates open and transparent communication between the Agency, external stakeholders, and the customers they represent by sharing feedback, working with Agency leadership, coordinating follow-up, and reporting back to stakeholders. The Office also works closely with other USCIS offices to support the implementation of highly visible outreach programs and public education initiatives."
OPE has three divisions: the Community Relations and Engagement Division, the Intergovernmental Affairs Division, and the Protocol Division. The first and third divisions are those with which I have had the most "engagement". I must say that Community Relations and Engagement is trying. I have been to a couple of community relations events and it appears USCIS district offices are reaching out to the general public to offer better information about what it does.
What is not working are the stakeholders' "engagements" conducted by the Protocol Division, specifically with reference to a little-known job-creation program that could provide badly needed jobs to out-of-work Americans. As I write this, the national unemployment rate has jumped to 9.8 percent!
Each time USCIS has had an opportunity to choose a way to change the EB-5 Program (as this foreign investor immigrant visa program is called), either via memo or via request for evidence, it has always selected the most restrictive change, thus strangling to death the only immigration-related visa program Congress seems to like and support.
Today, for example, USCIS is misapplying its own regulations and guidance and is denying about one-third of the Form I-829 investor petitions to remove conditions on residence (for the permanent green card). This is not sustainable and will be the death of the EB-5 Program.
I have a recommendation. Toss the word "engagement" and use the word "conversation". "Engagement" has a very military meaning to me as someone with 12 years of prior service in the Army. I prefer the word "conversation." Then let's have a few before this important (and unique) job-creating investor visa program goes down the tubes.