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Comparing Apples To Apples – USCIS Approved and Designated Independent Credentialing Organizations For Immigrant Healthcare Workers Vs. Regional Centers

For Immigrant Investors and Entrepreneurs By Joseph P. Whalen (September 4, 2012)

I am an advocate for consistency and for the general improvement in adjudications for benefits requests and requests for relief under the Immigration and Nationality Act (INA) and related laws. One area of particular interest to me is the EB-5 Regional Center. USCIS and INS before it have had many “growing pains” in formulating the proper approach to evaluating requests for designation as an EB-5 Regional Center. After long and careful study of this area, I have come to hold some rather strong opinions on this topic. I have had direct hands-on personal experience adjudicating Proposals for Regional Center Designations while with USCIS. I have continued to study and review the topic and have provided training, analysis, and deeply focused consultation to practitioners, related-topic specialists, and applicants. In the course of study and research I found that the closest comparable adjudication to the USCIS Form I-924 performed by the agency is the adjudication of Form I-905. The I-905, Application for Authorization to Issue Certification for Health Care Workers, has been described by AAO as “seeking licensure to certify”.... “medical positions” and/or “medical professionals”. AAO has made it clear that the applicant for that license needs to “demonstrate that its evaluators are competent to certify the educational credentials of those medical professionals seeking such certifications”. They have gone on to state that “the Form I-905 requests that the applicant "Explain [its] expertise, knowledge, and experience in the health care occupations for which [it seeks] authorization."” I feel that the I-924, Application For Regional Center Under the Immigrant Investor Pilot Program could be improved by looking to the form I-905 and the AAO Administrative decision posted as Nov092006_01M4212.pdf in which it found that the applicant for approval as an “Independent Credentialing Organization” provided insufficient information as to its knowledge, skills, and abilities (KSAs) required for the task. AAO summed up that “[t]he applicant did not otherwise explain its expertise, knowledge, and experience pertinent to health care occupations.”

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I would rather just make the general suggestion that USCIS closely examine these closely related “licensing applications” and compare the underlying fundamentals involved but I won’t leave it at that. When I have done so in the past, USCIS has conveniently stated something along the lines of “the commenter made no specific suggestions therefore no changes will be made based on this comment”. Well, I want USCIS to make some specific changes to the I-924 Form and Instructions, so I will make some very specific suggestions as follows: Under the heading: “What is the Purpose of this Form?” item #1 should be expanded upon by adding more precise language as to the required KSAs. As an example, I offer the following:

“... A critical component of this request entails demonstrating that the applicant entity possesses the necessary knowledge, skills, and abilities (KSAs) to successfully operate the Regional Center in conformance with its legally mandated purposes. As per 8 CFR § 204.6(m)(6) “...a regional center must provide USCIS with updated information to demonstrate the regional center is continuing to promote economic growth, improved regional productivity, job creation, or increased domestic capital investment in the approved geographic area.” Therefore, the entity must present evidence that it understands its role and has the required expertise to perform its underlying functions. The preceding is in addition to the specific KSAs needed for the facilitation of the specifically desired “kinds of commercial enterprises that will receive capital from aliens” as represented by the chosen NACIS codes, in which it seeks licensure to assist EB-5 investors establish and/or invest.”

As stated, the above is merely a suggestion to work from. Naturally, corresponding changes under the heading “Initial Evidence Requirements” would need to be made there. By way of example, in that I-905 AAO non-precedential Administrative Decision linked above, AAO remarked on the similar topic in that context in footnote 2, as follows:

“The standards described in the instructions sheet include all of the standards listed in at 8 C.F.R. § 212.15(k)(l) - (8), set out above.”

The I-905 Applicants have more guidance and so do the USCIS Adjudicators who decide those requests. Congress was more specific and the regulations are more developed. INS had considerable help from two other Departments, Education and Health and Human Services. With EB-5, INS (now USCIS) led State. Not good.

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The I-924 Applicant needs to be told their role and obligations to their EB-5 investor partners as well as how to properly plan to fulfill that role. The Regional Center seeks licensure to provide specific services to aliens in their individual requests for immigrant visas and to later have conditions lifted from status. The Regional Center has responsibilities and obligations towards its various investment partners. USCIS is most concerned with the Regional Center’s understanding of its specific obligations to its EB-5 investor partners/clients. Regional Centers charge hefty fees to its EB-5 investors. I say, make them justify earning those fees! USCIS needs to closely examine the role of the Regional Centers and produce practical expectations of the services it needs to provide. Once that is sorted out, USCIS must discern basic KSAs for the Regional Centers to demonstrate and have some baseline suggestions and parameters spelled out. I would caution against being too rigid. By way of example to avoid, do not copy the “evidence possibilities” embodied in the extraordinary ability or exceptional ability immigrant visa categories. Those were based in statute. The requirements for Regional Centers are much more loosely defined in the statute and the regulations need to be quite open-ended. That said, very broad possibilities, loosely defined are the way to go with this. Numerous non-committal and wishy-washy possibilities are best. I say this because of the huge number of possibilities available under the NAICS codes. The base 2012 NAICS Codes structure encompasses well over two-thousand industry categories. There are too many potential means to satisfy the KSAs for the Regional Center applicants to be overly specific. I would stick with making the applicant define its own parameters and showing by comparison to the standards accepted in that industry (or those industries) what is needed for the task at hand. I would not make it as rigid as the Permanent Labor Cert process but that could serve as a basic frame of reference. I’d tell them to “Define your needs and then show us that you have what it takes.” Perhaps OOH or something similar can help them figure it out. Resumes, educational credentials, job descriptions, one’s curriculum vitae, lists of publications: books, blogs, or articles and things along those various lines should suffice as evidence for individuals. Established entities might have more and different items to offer such as: annual reports, balance sheets, the ubiquitous tax returns and associated IRS “schedules” and/or SEC filings—EDGAR printouts might be available. Many possibilities exist in over two-thousand industry categories as defined in NAICS. The following pages show some of the statutes and regulations for these two forms in a side-by-side manner in order to allow an easier comparison.

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USCIS Form I-905 USCIS Form I-924 Application for Authorization to Issue Certification for Health Care Workers

Application For Regional Center Under the Immigrant Investor Pilot Program

INA § 212 [8 U.S.C. § 1182] GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY

[8 U.S.C. § 1153 Note: Pilot Immigration Program] Pub. L. 102-395, title VI, Sec. 610, Oct. 6, 1992, 106 Stat. 1874, as amended... § 610 PILOT IMMIGRATION PROGRAM-

(a) Classes of Aliens Ineligible for Visas or Admission.- Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(a) Of the visas otherwise available under section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)), the Secretary of State, together with the Secretary of Homeland Security, shall set aside visas for a pilot program to implement the provisions of such section. Such pilot program shall involve a regional center in the United States, designated by the Secretary of Homeland Security on the basis of a general proposal, for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. 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 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

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result of such capital investments, and the other positive economic effects such capital investments will have.

***** (5) Labor certification and qualifications for certain immigrants.-

(c) In determining compliance with section 203(b)(5)(A)(iii)[(ii)] of the Immigration and Nationality Act [8 U.S.C. 1153(b)(5)(A)(iii)[(ii)]], and notwithstanding the requirements of 8 CFR 204.6, the Secretary of Homeland Security shall permit aliens admitted under the pilot program described in this section to establish reasonable methodologies for determining the number of jobs created by the pilot program, including such jobs which are estimated to have been created indirectly through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

(C) Uncertified foreign health-care workers 7a/ Subject to subsection (r), any alien who seeks to enter the United States for the purpose of performing labor as a health-care worker, other than a physician, is excludable unless the alien presents to the consular officer, or, in the case of an adjustment of status, the Attorney General, a certificate from the Commission on Graduates of Foreign Nursing Schools, or a certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services, verifying that-

INA § 203(b)(5) [8 USC § 1153(b)(5)] (5) Employment creation. - (A) In general. - Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial 4/ enterprise (including a limited partnership)-- (i) 4/ in which such alien has invested (after the date of the enactment of the Immigration Act of 1990) or, is actively in the process of investing, capital in an

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(i) the alien's education, training, license, and experience- (I) meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the application; (II) are comparable with that required for an American health-care worker of the same type; and (III) are authentic and, in the case of a license, unencumbered; (ii) the alien has the level of competence in oral and written English considered by the Secretary of Health and Human Services, in consultation with the Secretary of Education, to be appropriate for health care work of the kind in which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant's ability to speak and write; and (iii) if a majority of States licensing the profession in which the alien intends to work recognize a test predicting the success on the profession's licensing or certification examination, the alien has passed such a test, or has passed such an examination. For purposes of clause (ii), determination of the standardized tests required and of the minimum scores that are appropriate are within the sole discretion of the Secretary of Health and Human Services and are not

amount not less than the amount specified in subparagraph (C), and (ii) 4/ which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters). (B) Set-aside for targeted employment areas.- (i) In general. - Not less than 3,000 of the visas made available under this paragraph in each fiscal year shall be reserved for qualified immigrants who 4/ invest in a new commercial enterprise described in subparagraph (A) which will create employment in a targeted employment area. (ii) Targeted employment area defined. - In this paragraph, the term ``targeted employment area'' means, at the time of the investment, a rural area or an area which has experienced high unemployment (of at least 150 percent of the national average rate). (iii) Rural area defined. - In this paragraph, the term ``rural area'' means any area other than an area within a metropolitan statistical area or within the outer boundary of any city or town having a population of 20,000 or more (based on

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subject to further administrative or judicial review.

the most recent decennial census of the United States). (C) Amount of capital required. - (i) In general. - Except as otherwise provided in this subparagraph, the amount of capital required under subparagraph (A) shall be $1,000,000. The Attorney General, in consultation with the Secretary of Labor and the Secretary of State, may from time to time prescribe regulations increasing the dollar amount specified under the previous sentence. (ii) Adjustment for targeted employment areas.- The Attorney General may, in the case of investment made in a targeted employment area, specify an amount of capital required under subparagraph (A) that is less than (but not less than 1/2 of) the amount specified in clause (i). (iii) Adjustment for high employment areas.-In the case of an investment made in a part of a metropolitan statistical area that at the time of the investment - (I) is not a targeted employment area, and (II) is an area with an unemployment rate significantly below the national average unemployment rate, the Attorney General may specify an amount of capital required under subparagraph (A) that is greater than (but not greater than 3 times) the amount specified in clause (I). (D) 4/ Full-time employment defined.--

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In this paragraph, the term `full-time employment' means employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position.

FN 7a Section 4(a)(2) of Public Law 106-95, dated November 12, 1999, amended section 212(a)(5)(C) of the Immigration and Nationality Act.

33/ (r) Subsection (a)(5)(C) shall not apply to an alien who seeks to enter the United States for the purpose of performing labor as a nurse who presents to the consular officer (or in the case of an adjustment of status, the Attorney General) a certified statement from the Commission on Graduates of Foreign Nursing Schools (or an equivalent independent credentialing organization approved for the certification of nurses under subsection (a)(5)(C) by the Attorney General in consultation with the Secretary of Health and Human Services) that-- (1) the alien has a valid and unrestricted license as a nurse in a State where the alien intends to be employed and such State verifies that the foreign licenses of alien nurses are authentic and unencumbered; (2) the alien has passed the National Council Licensure Examination (NCLEX); (3) the alien is a graduate of a nursing program-- (A) in which the language of instruction

INA § 216A [8 U.S.C. § 1186b] CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN ALIEN ENTREPRENEURS, SPOUSED, AND CHILDREN (a) In general.- (1) Conditional basis for status.-Notwithstanding any other provision of this Act, an alien entrepreneur (as defined in subsection (f)(1)), alien spouse, and alien child (as defined in subsection (f)(2)) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.

***** (b) Termination of status if finding that qualifying entrepreneurship improper.- (1) In general.-In the case of an alien entrepreneur with permanent resident status on a conditional basis under subsection (a), if the Attorney General

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was English; (B) located in a country-- (i) designated by such commission not later than 30 days after the date of the enactment of the Nursing Relief for Disadvantaged Areas Act of 1999, based on such commission's assessment that the quality of nursing education in that country, and the English language proficiency of those who complete such programs in that country, justify the country's designation; or (ii) designated on the basis of such an assessment by unanimous agreement of such commission and any equivalent credentialing organizations which have been approved under subsection (a)(5)(C) for the certification of nurses under this subsection; and (C) (i) which was in operation on or before the date of the enactment of the Nursing Relief for Disadvantaged Areas Act of 1999; or (ii) has been approved by unanimous agreement of such commission and any equivalent credentialing organizations which have been approved under subsection (a)(5)(C) for the certification of nurses under this subsection.

determines, before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, that- (A) the investment in 1/ the commercial enterprise was intended solely as a means of evading the immigration laws of the United States, (B) (i) 1/ the alien did not invest, or was not actively in the process of investing, the requisite capital; or (ii) 1/ the alien was not sustaining the actions described in clause (i) throughout the period of the alien's residence in the United States; or (C) the alien was otherwise not conforming to the requirements of section 203(b)(5) , then the Attorney General shall so notify the alien involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien (and the alien spouse and alien child) involved as of the date of the determination. (2) Hearing in removal proceeding.-Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.

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FN 33 Section 4(a)(1) of Public Law 106-95, dated November 12, 1999, amended section 212 of the Immigration and Nationality Act by adding a new subsection (r).

(d) Details of Petition and Interview.- (1) 2/ Contents of petition.--Each petition under subsection (c)(1)(A) shall contain facts and information demonstrating that the alien (A)(i) invested, or is actively in the process of investing, the requisite capital; and (ii) sustained the actions described in clause (i) throughout the period of the alien's residence in the United States; and (B) is otherwise conforming to the requirements of section 203(b)(5) .

8 CFR § 212.15 Certificates for foreign health care workers.

8 CFR § 204.6 Petitions for employment creation aliens.

(k) Standards for credentialing organizations. The DHS will evaluate organizations, including CGFNS, seeking to obtain approval from the DHS to issue certificates for health care workers, or certified statements for nurses. Any organization meeting the standards set forth in paragraph (k)(1) of this section can be eligible for authorization to issue certificates. While CGFNS has been specifically listed in the statute as an entity authorized to issue certificates, it is not exempt from governmental oversight. All organizations will be reviewed, including CGFNS, to guarantee that they continue to meet the standards required of all certifying organizations, under the following:

(m) Immigrant Investor Pilot Program — (1) Scope. The Immigrant Investor Pilot Program is established solely pursuant to the provisions of section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, and subject to all conditions and restrictions stipulated in that section. Except as provided herein, aliens seeking to obtain immigration benefits under this paragraph continue to be subject to all conditions and restrictions set forth in section 203(b)(5) of the Act and this section.

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(1) Structure of the organization. (i) The organization shall be incorporated as a legal entity. (ii) (A) The organization shall be independent of any organization that functions as a representative of the occupation or profession in question or serves as or is related to a recruitment/placement organization. (B) The DHS shall not approve an organization that is unable to render impartial advice regarding an individual's qualifications regarding training, experience, and licensure. (C) The organization must also be independent in all decision making matters pertaining to evaluations and/or examinations that it develops including, but not limited to: policies and procedures; eligibility requirements and application processing; standards for granting certificates and their renewal; examination content, development, and administration; examination cut-off scores, excluding those pertaining to English language requirements; grievance and disciplinary processes; governing body and committee meeting rules; publications about qualifying for a certificate and its renewal; setting fees for application and all other services provided as part of the screening process; funding, spending, and budget authority related to the operation of the

(3) Requirements for regional centers. Each regional center wishing to participate in the Immigrant Investor Pilot Program shall submit a proposal to the Assistant Commissioner for Adjudications, which: (i) Clearly describes how the regional center focuses 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; (ii) Provides in verifiable detail how jobs will be created indirectly through increased exports; (iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center; (iv) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and (v) Is supported by economically or

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certification organization; ability to enter into contracts and grant arrangements; ability to demonstrate adequate staffing and management resources to conduct the program(s) including the authority to approve selection of, evaluate, and initiate dismissal of the chief staff member. (D) An organization whose fees are based on whether an applicant receives a visa may not be approved. (iii) The organization shall include the following representation in the portion of its organization responsible for overseeing certification and, where applicable, examinations: (A) Individuals from the same health care discipline as the alien health care worker being evaluated who are eligible to practice in the United States; and (B) At least one voting public member to represent the interests of consumers and protect the interests of the public at large. The public member shall not be a member of the discipline or derive significant income from the discipline, its related organizations, or the organization issuing the certificate. (iv) The organization must have a balanced representation such that the individuals from the same health care discipline, the voting public members, and any other appointed individuals have an equal say in matters relating to credentialing and/or examinations.

statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and/or multiplier tables.

8 CFR § 216.6 Petition by entrepreneur to remove conditional basis of lawful permanent resident status.

(a) Filing the petition —

(1) General procedures. A petition to remove the conditional basis of the permanent resident status of an alien accorded conditional permanent residence pursuant to section 203(b)(5) of the Act must be filed by the alien entrepreneuron Form I–829, Petition by Entrepreneur to Remove Conditions. The alien entrepreneur must file Form I–829 within the 90-day period preceding the second anniversary of his or her admission to the United States as a conditional permanent resident. Before Form I–829 may be considered as properly filed, it must be accompanied by the fee required under §103.7(b)(1) of this chapter, and by documentation as described in paragraph (a)(4) of this section, and it must be properly signed by the alien. Upon receipt of a properly filed Form I–829, the alien's conditional permanent resident status shall be extended automatically, if necessary, until such time as the director has adjudicated the petition. The

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(v) The organization must select representatives of the discipline using one of the following recommended methods, or demonstrate that it has a selection process that meets the intent of these methods: (A) Be selected directly by members of the discipline eligible to practice in the United States; (B) Be selected by members of a membership organization representing the discipline or by duly elected representatives of a membership organization; or (C) Be selected by a membership organization representing the discipline from a list of acceptable candidates supplied by the credentialing body. (vi) The organization shall use formal procedures for the selection of members of the governing body that prohibit the governing body from selecting a majority of its successors. Not-for-profit corporations which have difficulty meeting this requirement may provide in their applications evidence that the organization is independent, and free of material conflicts of interest regarding whether an alien receives a visa. (vii) The organization shall be separate from the accreditation and educational functions of the discipline, except for those entities recognized by the Department of Education as having satisfied the

entrepreneur's spouse and children should be included in the petition to remove conditions. Children who have reached the age of twenty-one or who have married during the period of conditional permanent residence and the former spouse of an entrepreneur, who was divorced from the entrepreneur during the period of conditional permanent residence, may be included in the alien entrepreneur's petition or may file a separate petition.

(2) [Reserved]

(3) Physical presence at time of filing. A petition may be filed regardless of whether the alien is physically present in the United States. However, if the alien is outside the United States at the time of filing, he or she must return to the United States, with his or her spouse and children, if necessary, to comply with the interview requirements contained in the Act. Once the petition has been properly filed, the alien may travel outside the United States and return if in possession of documentation as set forth in §211.1(b)(1) of this chapter, provided the alien complies with the interview requirements described in paragraph (b) of this section. An alien who is not physically present in the United States during the filing period but subsequently applies for admission to the United States shall be processed in accordance with §235.11 of this chapter.

(4) Documentation. The petition for removal of conditions must be accompanied by the following evidence:

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requirement of independence. (viii) The organization shall publish and make available a document which clearly defines the responsibilities of the organization and outlines any other activities, arrangements, or agreements of the organization that are not directly related to the certification of health care workers. (2) Resources of the organization. (i) The organization shall demonstrate that its staff possess the knowledge and skills necessary to accurately assess the education, work experience, licensure of health care workers, and the equivalence of foreign educational institutions, comparable to those of United States-trained health care workers and institutions. (ii) The organization shall demonstrate the availability of financial and material resources to effectively and thoroughly conduct regular and ongoing evaluations on an international basis. (iii) If the health care field is one for which a majority of the states require a predictor test, the organization shall demonstrate the ability to conduct examinations in those countries with educational and evaluation systems comparable to the majority of states. (iv) The organization shall have the resources to publish and make available general descriptive materials on the procedures used to evaluate and validate

(i) Evidence that a commercial enterprise was established by the alien. Such evidence may include, but is not limited to, Federal income tax returns;

(ii) Evidence that the alien invested or was actively in the process of investing the requisite capital. Such evidence may include, but is not limited to, an audited financial statement or other probative evidence; and

(iii) Evidence that the alien sustained the actions described in paragraph (a)(4)(i) and (a)(4)(ii) of this section throughout the period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence. Such evidence may include, but is not limited to, bank statements, invoices, receipts, contracts, business licenses, Federal or State income tax returns, and Federal or State quarterly tax statements.

(iv) Evidence that the alien created or can be expected to create within a reasonable time ten full-time jobs for qualifying employees. In the case of a “troubled business” as defined in 8 CFR 204.6(j)(4)(ii), the alien entrepreneur must submit evidence that the commercial enterprise maintained the number of existing employees at no less than the pre-investment level for the period following

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credentials, including eligibility requirements, determination procedures, examination schedules, locations, fees, reporting of results, and disciplinary and grievance procedures. (3) Candidate evaluation and testing mechanisms. (i) The organization shall publish and make available a comprehensive outline of the information, knowledge, or functions covered by the evaluation/examination process, including information regarding testing for English language competency. (ii) The organization shall use reliable evaluation/examination mechanisms to evaluate individual credentials and competence that is objective, fair to all candidates, job related, and based on knowledge and skills needed in the discipline. (iii) The organization shall conduct ongoing studies to substantiate the reliability and validity of the evaluation/examination mechanisms. (iv) The organization shall implement a formal policy of periodic review of the evaluation/examination mechanism to ensure ongoing relevance of the mechanism with respect to knowledge and skills needed in the discipline. (v) The organization shall use policies and procedures to ensure that all aspects of the evaluation/examination procedures, as well

his or her admission as a conditional permanent resident. Such evidence may include payroll records, relevant tax documents, and Forms I–9.

(5) Termination of status for failure to file petition. Failure to properly file Form I–829 within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence on a conditional basis shall result in the automatic termination of the alien's permanent resident status and the initiation of deportation proceedings. The director shall send a written notice of termination and an order to show cause to an alien entrepreneur who fails to timely file a petition for removal of conditions. No appeal shall lie from this decision; however, the alien may request a review of the determination during deportation proceedings. In deportation proceedings, the burden of proof shall rest with the alien to show by a preponderance of the evidence that he or she complied with the requirement to file the petition within the designated period. The director may deem the petition to have been filed prior to the second anniversary of the alien's obtaining conditional permanent resident status and accept and consider a late petition if the alien demonstrates to the director's satisfaction that failure to file a timely petition was for good cause and due to extenuating circumstances. If the late petition is filed prior to jurisdiction vesting with the immigration judge in deportation proceedings and the director excuses the late filing and approves the petition, he or

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as the development and administration of any tests, are secure. (vi) The organization shall institute procedures to protect against falsification of documents and misrepresentation, including a policy to request each applicant's transcript(s) and degree(s) directly from the educational licensing authorities. (vii) The organization shall establish policies and procedures that govern the length of time the applicant's records must be kept in their original format. (viii) The organization shall publish and make available, at least annually, a summary of all screening activities for each discipline including, at least, the number of applications received, the number of applicants evaluated, the number receiving certificates, the number who failed, and the number receiving renewals. (4) Responsibilities to applicants applying for an initial certificate or renewal. (i) The organization shall not discriminate among applicants as to age, sex, race, religion, national origin, disability, or marital status and shall include a statement of nondiscrimination in announcements of the evaluation/examination procedures and renewal certification process. (ii) The organization shall provide all applicants with copies of formalized application procedures for

she shall restore the alien's permanent resident status, remove the conditional basis of such status, and cancel any outstanding order to show cause in accordance with §242.7 of this chapter. If the petition is not filed until after jurisdiction vests with the immigration judge, the immigration judge may terminate the matter upon joint motion by the alien and the Service.

(6) Death of entrepreneur and effect on spouse and children. If an entrepreneur dies during the prescribed two-year period of conditional permanent residence, the spouse and children of the entrepreneur will be eligible for removal of conditions if it can be demonstrated that the conditions set forth in paragraph (a)(4) of this section have been met.

(b) Petition review —

(1) Authority to waive interview. The director of the service center shall review the Form I–829 and the supporting documents to determine whether to waive the interview required by the Act. If satisfied that the requirements set forth in paragraph (c)(1) of this section have been met, the service center director may waive the interview and approve the petition. If not so satisfied, then the service center director shall forward the petition to the district director having jurisdiction over the location of the alien entrepreneur's commercial enterprise in the United States so that an interview of the alien entrepreneur may be conducted. The director must either waive the requirement

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evaluation/examination and shall uniformly follow and enforce such procedures for all applicants. Instructions shall include standards regarding English language requirements. (iii) The organization shall implement a formal policy for the periodic review of eligibility criteria and application procedures to ensure that they are fair and equitable. (iv) Where examinations are used, the organization shall provide competently proctored examination sites at least once annually. (v) The organization shall report examination results to applicants in a uniform and timely fashion. (vi) The organization shall provide applicants who failed either the evaluation or examination with information on general areas of deficiency. (vii) The organization shall implement policies and procedures to ensure that each applicant's examination results are held confidential and delineate the circumstances under which the applicant's certification status may be made public. (viii) The organization shall have a formal policy for renewing the certification if an individual's original certification has expired before the individual first seeks admission to the United States or applies for adjustment of status. Such procedures

for an interview and adjudicate the petition or arrange for an interview within 90 days of the date on which the petition was properly filed.

(2) Location of interview. Unless waived, an interview relating to the Form I–829 shall be conducted by an immigration examiner or other officer so designated by the district director at the district office that has jurisdiction over the location of the alien entrepreneur's commercial enterprise in the United States.

(3) Termination of status for failure to appear for interview. If the alien fails to appear for an interview in connection with the petition when requested by the Service, the alien's permanent resident status will be automatically terminated as of the second anniversary of the date on which the alien obtained permanent residence. The alien will be provided with written notification of the termination and the reasons therefore, and an order to show cause shall be issued placing the alien under deportation proceedings. The alien may seek review of the decision to terminate his or her status in such proceedings, but the burden shall be on the alien to establish by a preponderance of the evidence that he or she complied with the interview requirements. If the alien has failed to appear for a scheduled interview, he or she may submit a written request to the district director asking that the interview be rescheduled or that the interview be waived. That request should explain his or her failure to appear for the scheduled interview, and if a request for

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shall be restricted to updating information on licensure to determine the existence of any adverse actions and the need to re-establish English competency. (ix) The organization shall publish due process policies and procedures for applicants to question eligibility determinations, examination or evaluation results, and eligibility status. (x) The organization shall provide all qualified applicants with a certificate in a timely manner. (5) Maintenance of comprehensive and current information. (i) The organization shall maintain comprehensive and current information of the type necessary to evaluate foreign educational institutions and accrediting bodies for purposes of ensuring that the quality of foreign educational programs is equivalent to those training the same occupation in the United States. The organization shall examine, evaluate, and validate the academic and clinical requirements applied to each country's accrediting body or bodies, or in countries not having such bodies, of the educational institution itself. (ii) The organization shall also evaluate the licensing and credentialing system(s) of each country or licensing jurisdiction to determine which systems are equivalent to that of the majority of the licensing jurisdictions in the United States.

waiver of the interview, the reasons such waiver should be granted. If the district director determines that there is good cause for granting the request, the interview may be rescheduled or waived, as appropriate. If the district director waives the interview, he or she shall restore the alien's conditional permanent resident status, cancel any outstanding order to show cause in accordance with §242.7 of this chapter, and proceed to adjudicate the alien's petition. If the district director reschedules that alien's interview, he or she shall restore the alien's conditional permanent resident status, and cancel any outstanding order to show cause in accordance with §242.7 of this chapter. If the interview is rescheduled at the request of the alien, the Service shall not be required to conduct the interview within the 90-day period following the filing of the petition.

(c) Adjudication of petition. (1) The decision on the petition shall be made within 90 days of the date of filing or within 90 days of the interview, whichever is later. In adjudicating the petition, the director shall determine whether:

(i) A commercial enterprise was established by the alien;

(ii) The alien invested or was actively in the process of investing the requisite capital; and

(iii) The alien sustained the actions described in paragraphs (c)(1)(i) and (c)(1)(ii) of this section throughout the

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(6) Ability to conduct examinations fairly and impartially. An organization undertaking the administration of a predictor examination, or a licensing or certification examination shall demonstrate the ability to conduct such examination fairly and impartially. (7) Criteria for awarding and governing certificate holders. (i) The organization shall issue a certificate after the education, experience, license, and English language competency have been evaluated and determined to be equivalent to their United States counterparts. In situations where a United States nationally recognized licensure or certification examination, or a test predicting the success on the licensure or certification examination, is offered overseas, the applicant must pass the examination or the predictor test prior to receiving certification. Passage of a test predicting the success on the licensure or certification examination may be accepted only if a majority of states (and Washington, DC) licensing the profession in which the alien intends to work recognize such a test. (ii) The organization shall have policies and procedures for the revocation of certificates at any time if it is determined that the certificate holder was not eligible to receive the certificate at the time that it was issued. If the organization revokes an individual's certificate, it must notify the DHS, via the Nebraska Service Center, and

period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence.

(iv) The alien created or can be expected to create within a reasonable period of time ten full-time jobs to qualifying employees. In the case of a “troubled business” as defined in 8 CFR 204.6(j)(4)(ii), the alien maintained the number of existing employees at no less than the pre-investment level for the previous two years.

(2) If derogatory information is determined regarding any of these issues or it becomes known to the government that the entrepreneur obtained his or her investment funds through other than legal means (such as through the sale of illegal drugs), the director shall offer the alien entrepreneur the opportunity to rebut such information. If the alien entrepreneur fails to overcome such derogatory information or evidence the investment funds were obtained through other than legal means, the director may deny the petition, terminate the alien's permanent resident status, and issue an order to show cause. If derogatory information not relating to any of these issues is determined during the course of the interview, such information shall be forwarded to the investigations unit for appropriate action. If no

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the appropriate state regulatory authority with jurisdiction over the individual's health care profession. The organization may not reissue a certificate to an individual whose certificate has been revoked. (8) Criteria for maintaining accreditation. (i) The organization shall advise the DHS of any changes in purpose, structure, or activities of the organization or its program(s). (ii) The organization shall advise the DHS of any major changes in the evaluation of credentials and examination techniques, if any, or in the scope or objectives of such examinations. (iii) The organization shall, upon the request of the DHS, submit to the DHS, or any organization designated by the DHS, information requested of the organization and its programs for use in investigating allegations of non-compliance with standards and for general purposes of determining continued approval as an independent credentialing organization. (iv) The organization shall establish performance outcome measures that track the ability of the certificate holders to pass United States licensure or certification examinations. The purpose of the process is to ensure that certificate holders pass United States licensure or certification examinations at the same pass rate as graduates of United States programs.

unresolved derogatory information is determined relating to these issues, the petition shall be approved and the conditional basis of the alien's permanent resident status removed, regardless of any action taken or contemplated regarding other possible grounds for deportation.

(d) Decision —

(1) Approval. If, after initial review or after the interview, the director approves the petition, he or she will remove the conditional basis of the alien's permanent resident status as of the second anniversary of the alien's entry as a conditional permanent resident. He or she shall provide written notice of the decision to the alien and shall require the alien to report to the appropriate district office for processing for a new Permanent Resident Card, Form I–551, at which time the alien shall surrender any Permanent Resident Card previously issued.

(2) Denial. If, after initial review or after the interview, the director denies the petition, he or she shall provide written notice to the alien of the decision and the reason(s) therefor, and shall issue an order to show cause why the alien should not be deported from the United States. The alien's lawful permanent resident status and that of his or her spouse and any children shall be terminated as of the date of the director's written decision. The alien shall also be instructed to surrender any Permanent Resident Card previously issued by the Service. No appeal shall lie from this decision; however, the alien may

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Failure to establish such measures, or having a record showing an inability of persons granted certificates to pass United States licensure examinations at the same rate as graduates of United States programs, may result in a ground for termination of approval. Information regarding the passage rates of certificate holders shall be maintained by the organization and provided to HHS on an annual basis, to the DHS as part of the 5-year reauthorization application, and at any other time upon request by HHS or the DHS. (v) The organization shall be in ongoing compliance with other policies specified by the DHS.

seek review of the decision in deportation proceedings. In deportation proceedings, the burden shall rest with the Service to establish by a preponderance of the evidence that the facts and information in the alien's petition for removal of conditions are not true and that the petition was properly denied.

(l) DHS review of the performance of certifying organizations. The DHS will review credentialing organizations every 5 years to ensure continued compliance with the standards described in this section. Such review will occur concurrent with the adjudication of a request for reauthorization to issue health care worker certificates. The DHS will notify the credentialing organization in writing of the results of the review and request for reauthorization. The DHS may conduct a review of the approval of any request for authorization to issue certificates at any time within the 5-year period of authorization for any reason. If at any time the DHS determines that an organization is not complying with the terms of its authorization or if other adverse information relating to eligibility to issue certificates is developed, the DHS may

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initiate termination proceedings. (m) Termination of certifying organizations. (1) If the DHS determines that an organization has been convicted, or the directors or officers of an authorized credentialing organization have individually been convicted of the violation of state or federal laws, or other information is developed such that the fitness of the organization to continue to issue certificates or certified statements is called into question, the DHS shall automatically terminate authorization for that organization to issue certificates or certified statements by issuing to the organization a notice of termination of authorization to issue certificates to foreign health care workers. The notice shall reference the specific conviction that is the basis of the automatic termination. (2) If the DHS determines that an organization is not complying with the terms of its authorization or other adverse information relating to eligibility to issue certificates is uncovered during the course of a review or otherwise brought to the DHS' attention, or if the DHS determines that an organization currently authorized to issue certificates or certified statements has not submitted an application or provided all information required on the request within 6 months of July 25, 2003, the DHS will issue a Notice of Intent to Terminate authorization to issue certificates to the credentialing organization. The Notice

(6) Termination of participation of regional centers. To ensure that regional centers continue to meet the requirements of section 610(a) of the Appropriations Act, a regional center must provide USCIS with updated information to demonstrate the regional center is continuing to promote economic growth, improved regional productivity, job creation, or increased domestic capital investment in the approved geographic area. Such information must be submitted to USCIS on an annual basis, on a cumulative basis, and/or as otherwise requested by USCIS, using a form designated for this purpose. USCIS will issue a notice of intent to terminate the participation of a regional center in the pilot program if a regional center fails to submit the required information or upon a determination that the regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. The notice of intent to terminate shall be made upon notice to the regional center and shall set forth the reasons for termination. The regional center must be provided 30 days from receipt of the notice of intent to terminate to offer evidence in opposition to the ground or grounds alleged in the notice of intent to terminate. If USCIS determines that the regional center's participation in the Pilot Program should

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shall set forth reasons for the proposed termination. (i) The credentialing organization shall have 30 days from the date of the Notice of Intent to Terminate authorization to rebut the allegations, or to cure the noncompliance identified in the DHS's notice of intent to terminate. (ii) DHS will forward to HHS upon receipt any information received in response to a Notice of Intent to Terminate an entity's authorization to issue certificates. Thirty days after the date of the Notice of Intent to Terminate, the DHS shall forward any additional evidence and shall request an opinion from HHS regarding whether the organization's authorization should be terminated. The DHS shall accord HHS' opinion great weight in determining whether the authorization should be terminated. After consideration of the rebuttal evidence, if any, and consideration of HHS' opinion, the DHS will promptly provide the organization with a written decision. If termination of credentialing status is made, the written decision shall set forth the reasons for the termination. (3) An adverse decision may be appealed pursuant to 8 CFR 103.3 to the Associate Commissioner for Examinations. Termination of credentialing status shall remain in effect until and unless the terminated organization reapplies for credentialing status and is approved, or its appeal of the termination decision is sustained by the Administrative Appeals

be terminated, USCIS shall notify the regional center of the decision and of the reasons for termination. As provided in 8 CFR 103.3, the regional center may appeal the decision to USCIS within 30 days after the service of notice.

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Office. There is no waiting period for an organization to re-apply for credentialing status.

Joseph P. Whalen Independent EB-5 Consultant, Advocate, Trainer & Advisor

1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218 Phone: (716) 604-4233

E-mail: joseph.whalen774@gmail.com or Silver.SurferEB5@gmail.com or web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer