1

Department of Homeland Security

Ethics and Integrity: Protocols for Processing of EB-5

Immigrant Investor Visa Petitions and EB-5 Regional Center

Applications, Including Stakeholder Communications

1. Purpose:

a. To establish protocols to properly process stakeholder communications related to the

Employment-Based Fifth Preference Immigrant Investor Program (the EB-5 program). It

is critical to DHS’s mission to ensure that we administer the EB-5 program with integrity.

b. Congress created the EB-5 program in 1990 to stimulate the U.S. economy through

job creation and capital investment by alien investors. In order to promote employment

in the United States, the EB-5 program provides alien investors with the opportunity to

obtain lawful permanent residence in the United States for themselves, their spouses, and

their minor unmarried children by making a certain level of capital investments and

associated job creation or preservation.

c. The program makes immigrant visas available to foreign nationals who invest at least

$1,000,000 (or $500,000 if the investment is in a targeted employment area, defined as

certain rural or high unemployment areas) in a U.S. business that will create or, for

“troubled businesses” only, preserve at least ten full-time jobs for U.S. citizens or

employment-authorized immigrants in the United States.

i. The “Immigrant Investor Pilot Program,” established by Congress in 1992,

allocates EB-5 visas for investors in regional centers designated by USCIS. The

program has been regularly reauthorized by Congress on a bipartisan basis, most

recently in September 2012, when Congress eliminated the term “pilot” and extended

its authorization through September 30, 2015.

ii. A regional center has jurisdiction over a limited geographic area, serves the

purpose of concentrating pooled investment in defined economic zones and is defined

by regulations as “any economic unit, public or private, which is involved with the

promotion of economic growth, including increased export sales, improved regional

productivity, job creation, and increased domestic capital investment.”

2. Protocol Application: The following Ethics and Integrity protocol applies to all DHS

and USCIS employees and contractors involved in policymaking, evaluation, or review of

the EB-5 program or the adjudication of any particular EB-5-related petition or application.

2

3. Authorities:

a. EB-5 Authorities:

i. 8 C.F.R. § 1.2 (Definitions);

ii. 8 C.F.R. § 2.1 (Authority of the Secretary of Homeland Security);

iii. 8 C.F.R. § 204.6 (Petitions for employment creation aliens);

iv. 8 C.F.R. § 216.6 (Petition by entrepreneur to remove conditional basis of lawful

permanent resident status);

v. 8 C.F.R. § 216.3 (Termination of conditional resident status)

vi. 8 C.F.R. § 103.2 (Submission and adjudication of benefit requests)

vii. 8 C.F.R. § 103.3 (Denials, appeals, and precedent decisions);

viii. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, §§ 203(b)(5),

216A, 245(k); 8 U.S.C. §§ 1153(b)(5), 1186b, 1255(f);

ix. Homeland Security Act of 2002, Pub. L. No. 107-296, § 451; 6 U.S.C. § 271;

x. 21st

Century DOJ Appropriations Authorization Act, Pub. L. No. 107-273,

§§ 11031-37 (2002);

xi. Visa Waiver Permanent Program Act, Pub. L. No. 106-396, § 402 (2000);

xii. Departments of Commerce, Justice, and State, the Judiciary, and Related

Agencies Appropriation Act, Pub. L. No. 102-395, § 610 (1992).

b. Ethics Regulations and Statutes:

i. 18 U.S.C. § 208: This provision contains a prohibition against participating in

matters affecting an employee's own financial interests or the financial interests

of other specified persons (e.g., spouse and dependent children) or organizations.

ii. 5 C.F.R. § 2635.101(b)(8): Employees shall act impartially and not give

preferential treatment to any private organization or individual.

iii. 5 C.F.R. § 2635.101(b)(14): Employees shall endeavor to avoid any actions

creating the appearance that they are violating the law or the ethical standards set

forth in this part.

iv. 5 C.F.R. § 2635.702: An employee shall not use his public office for his own

private gain, for the endorsement of any product, service or enterprise, or for the

private gain of friends, relatives, or persons with whom the employee is

3

affiliated in a nongovernmental capacity, including nonprofit organizations of

which the employee is an officer or member, and persons with whom the

employee has or seeks employment or business relations.

v. 5 C.F.R. § 2635.501, 502: These are two provisions intended to ensure that an

employee takes appropriate steps to avoid an appearance of loss of impartiality

in the performance of his/her official duties. For example, where an employee

knows that a particular matter involving specific parties is likely to have a direct

and predictable effect on the financial interest of a member of his/her household,

or knows that a person with whom she/he has a covered relationship is or

represents a party to such matter, and where the employee determines that the

circumstances would cause a reasonable person with knowledge of the relevant

facts to question his/her impartiality in the matter, he/she should seek assistance

of his/her supervisor and agency ethics officials.

vi. 5 C.F.R. § 2635.502(c), (d). These provisions discuss DHS Designated Agency

Ethics Official and Associate Agency Ethics Official involvement in 5 C.F.R.

§ 2635.502 determinations.

4. Guiding Principles for EB-5 Processing:

a. Compliance with Existing Ethics Rules. All official action taken upon receipt, adjudication or oversight of any EB-5 petition, application, policy or procedure must be completed by employees who are free of personal financial conflicts,

1 including financial

conflicts imputed to them by statute2

or that involve a person or entity with which the DHS official holds a “covered relationship.”

3 Official actions of DHS employees should

not rise to the level of an actual endorsement of any non-federal entity, person or project,4

should not fail to treat persons or entities with impartiality,5

and should not create an appearance of legal or ethical impropriety.

6

b. Transparency. Transparent processing and documentation of the adjudication of

EB-5 petitions and applications promotes integrity and inspires confidence and trust in

EB-5 stakeholders and the American people. Activities related to the adjudication of EB- 5 petitions and applications shall be conducted in a manner that ensures appropriate transparency, consistent with FOIA

7 and Privacy Act

8 rules.

c. Consistency. EB-5 adjudications and appeals actions should be adjudicated based on a

reasonable application of past precedents, in particular prior decisions involving EB-5

petitions presenting the same or similar facts and circumstances. While every EB-5

1 18 U.S.C. § 208.

2 Id.

3 5 C.F.R. § 2635.502.

4 5 C.F.R. § 2635.702.

5 5 C.F.R. § 2635.101(b)(8).

6 5 C.F.R. § 2635.101(b)(14).

7 5 U.S.C. § 552.

8 5 U.S.C. § 552a.

4

adjudication turns on the particular facts of a case, USCIS leadership, employees and

contractors should ensure adjudication of petitions and applications is performed using a

consistent and regular process.

d. Appearances. Appearances matter in positions of public trust. DHS employees and

contractors involved in the adjudication of EB-5 petitions have a duty not only to act

impartially in the performance of their official duties, but also to avoid the appearance of

impropriety. Even the mere appearance of a lack of impartiality or the granting of

preferential treatment (e.g., treating similarly situated applicants differently), can call into

question the fairness and integrity of our Nation's immigration laws.

As a general matter, a DHS employee could potentially violate the prohibition against

preferential treatment or create an appearance of the same in a number of ways.

Examples of such missteps include the following:

• Working on, or attempting to expedite or otherwise influence the processing of, an

immigration application, petition, or benefit for a friend, relative, neighbor or

acquaintance;

• Meeting with certain stakeholders to the exclusion of others who are similarly

situated;

• Referring applicants to a particular immigration practitioner or vendor; or

• Using his or her official position or title in a manner that could reasonably be

construed to imply that DHS or the federal government sanctions or endorses his or

her personal activities or those of another.

5. Procedures for Stakeholder Contacts Regarding Specific EB-5 Petitions or Applications: Because the focus of the EB-5 program is the creation of U.S. jobs and the

stimulation of economic development in a particular area or region, the timeliness and

outcome of the adjudication of individual petitions is often a matter of interest for members

of the U.S. Congress, state and local political leaders, industry leaders, civic groups, non-

profit entities and various business-oriented interest groups, as well as the actual EB-5

petitioners or regional center applicants. With regard to specific stakeholder contacts with

DHS employees and contractors involved in EB-5 adjudication and processing in specific

cases, the following protocols shall be followed by all DHS employees and contractors:

a. Contacts with EB-5 Petitioners, Applicants and Other Stakeholders. Contacts with an EB-5 petitioner, regional center applicant, their respective representatives, or other stakeholders

9 should be directed to the adjudicator of the relevant case and should come

through the customer service intake process or through other methods of contact specifically permitted by the regulations governing the implementation of the EB-5

9 CIS Ombudsman office stakeholder contacts are exempt from this general provision. The CIS Ombudsman has separate

authority to conduct such contacts, as an entity independent from USCIS, and CIS Ombudsman personnel will conduct such

contacts following established policies.

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program so that the contact can be tracked and documented. There is a strong

presumption that all substantive communications from stakeholders should be made in

writing, with each written contact memorialized by placing the document in the relevant

EB-5 case file. Any substantive telephonic or other non-written communications with

petitioners, applicants or their attorneys shall be documented by all involved in the

specific case, and stored in the case file.

b. Contacts with Members of the U.S. Congress and Congressional Staff. Members of

Congress have legitimate interests in providing constituent service and in promoting

economic development in their districts or states. Congressional communications related

to oversight can also be an important means for holding government accountable to the

people and ensuring Congress is informed about the operation of existing laws and

programs, and the potential need for new legislation.

For DHS, congressional contacts about particular EB-5 petitions or applications may

provide information relevant to the adjudication or more generally assist the DHS mission

by promoting citizen awareness of and access to the adjudication processes, as well as

generally increasing transparency to the public at large. Although there are many

legitimate reasons for congressional communications with DHS about EB-5 petitions or

applications, DHS employees and contractors must be mindful of the importance of

responding to such communications in a way that does not create an actual or perceived

impropriety. To that end, the following procedures should be followed by all DHS

employees and contractors who receive congressional communications about pending

EB-5 petitions or applications:

i. Written contacts and questions should be responded to in writing as required by

USCIS policy and stored in the file for the petition or application.

ii. Oral communications from Members of Congress or staff should, whenever possible, be respectfully and immediately referred to the USCIS designated Office of Legislative Affairs leadership or liaison so that concerns can be evaluated as outlined in USCIS procedures.

10 In those limited circumstances where those referrals are

deemed not possible, the DHS employee or departmental senior leader shall take the following actions:

Encourage the congressional staffer or Member to have the staff reduce the

information or questions into writing so it can be included in the file for the

petition or application, and transparently and objectively evaluated through

normal processes;

Reduce the substance of the communication into a written after action memo or

email, including any notes taken contemporaneously with the contact, which

shall be sent to the designated USCIS OLA liaison for action as outlined in

10

Again, CIS Ombudsman contacts are governed by policies established under authorities independent of USCIS. See

footnote 6 above.

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normal processing for congressional inquiries. This written memorandum, and

any relevant written materials responsive to the matters raised in the

phone/personal conversation, shall also be included in the file regarding the

particular petition or application; and

Notify the Member of Congress or congressional staff that the contents of the

conversation regarding the EB-5 petition or application will be documented by

USCIS and may, as appropriate, be shared with other leadership or the applicants

or petitioners whose cases are discussed.

c. Communications with Other Elected Officials. Governors, mayors, and other state

and local leaders may have concerns similar to those of Members of Congress, and

contacts with their offices and staffs should be treated consistent with the procedures

identified here.

d. Communications with White House Staff. The DHS directive on communications

with the White House applies by its terms to EB-5 adjudications. See Communications

with the White House Regarding Open Investigations, Adjudications, or Civil and

Criminal Enforcement Actions, MD 0430 (Mar. 1, 2003).

6. Leadership Intervention in Specific EB-5 Petition or Regional Center Application Decisions/Adjudications:

a. Senior leaders may intervene in particular cases under the procedures described in

section 6 of this document. “Intervention” means providing substantive direction or input

on decision-making or appeals regarding particular EB-5 cases, including requests to

expedite. Intervention does not include mere requests for information (e.g., request for

case status).

b. Senior leadership interventions in decision-making or appeals regarding particular

EB-5 cases should be reserved for exceptional circumstances where the senior leader can

articulate an impartial mission-related reason for intervention. Examples include, but are

not limited to, situations where the case:

i. may affect national security;

ii. may hinder a governmental response to an emergency matter, where serious

economic injury or actual physical injury could occur;

iii. may result in a serious failure to meet the Department of Homeland Security’s

mission accomplishments; or

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iv. involves allegations of misconduct by government employees and contractors (e.g., a conflict of interest) that raise questions about the integrity of the adjudication process.

11

c. In such cases, if senior DHS leadership deems that circumstances exist that require

leadership intervention in a particular case, they shall, in writing, memorialize the

decision. This written memorialization shall articulate the manner in which leadership

became aware of the facts of any case that led to the decision to intervene, and the

impartial mission-related reason for intervention.

d. In the event the Secretary or Deputy Secretary considers personal intervention in a

particular case, prior consultation with the General Counsel is required.

e. For all other officials, the memorandum mentioned in paragraph (c) above shall be

provided to the senior officials designated here for the purpose of providing the Director

(or the Director's delegate) individual, written recommendations regarding an

extraordinary intervention in a particular case. The senior officials providing such

recommendations shall include the following members:

i. The Deputy Director

ii. The USCIS Chief Counsel

iii. The CIS Ombudsman or delegate

iv. Any other official the Director designates

f. Upon receiving recommendations from the above officials, if the Director, or the

Director's delegate, decides that an extraordinary case intervention is appropriate, he or

she shall document that decision and the reasons for it in writing.

7. Training on Protocols: The Director and the CIS Ombudsman shall establish a

training program for personnel involved in EB-5 policy, procedural development and actual

adjudication of EB-5 petitions and applications, as well as for any other relevant DHS

personnel.

8. Expedite Requests: The USCIS general policy governing expedited processing of

applications and petitions applies to all requests to expedite processing of EB-5 petitions or

applications.

9. Report a Suspected Violation of These Protocols, Ethics Rules, or Any Statute, Regulation or Policy to:

a. DHS Inspector General:

11

Similar considerations may motivate a decision to expedite processing of EB-5 petitions or applications. DHS employees

should refer to and follow USCIS expedite protocols for those decisions.

8

Email: dhs-oig.officepublicaffairs@oig.dhs.gov

Phone (tollfree): 1-800-323-8603; 1-844-889-4357 (TTY)

Fax: 202-254-4297

b. USCIS:

Fax: 202-233-2453

Mail:

Chief, Investigations Division

Office of Security and Integrity MS 2275 U.S. Citizenship and Immigration Services

633 Third Street, NW, 3rd Floor

Washington, DC 20529-2275

c. DHS Designated Agency Ethics Official or the Associate Agency Ethics officials:

DHS Ethics Email: FinancialDisclosureHQ@hq.dhs.gov

DHS Ethics Phone: 202-447-3515

The Evolution of Regional Center Designation Adjudication

Page 1

I. BACKGROUND

The Immigrant Investor Pilot Program in which the Regional Centers reside finds its origin in

Section 61 0 of the Departments of Commerce, Justice and State, the Judiciary, and Related

Agencies Appropriations Act of 1993, as amended by section 402 of the Visa Waiver Permanent

Program Act of 2000, which provides:

(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 Attorney

General, 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 for the

promotion of economic growth, including increased export sales, improved regional

productivity, job creation, and increased domestic capital investment.

*****

(c) In determining compliance with section 203(b)(5)(A)(iii) of the Immigration and

Nationality Act, and notwithstanding the requirements of 8 CFR 204.6, the Attorney

General 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.

Paragraph (a) above is the statutory source of the undefined ―pilot program‖ and ―regional

center‖ while (c) is the source of the inclusion of ―indirect jobs‖ as determined by ―reasonable

methodologies‖. The statute directs the Attorney General [subsequently replaced by the

Secretary of Homeland Security] to ―implement the provisions‖ [which translates to: write

implementing regulations] which was initially delegated to INS [subsequently replaced by

USCIS]. Congress did not provide much raw material to work with so the ―immigrant investor

pilot program‖ and the requirements for designation as a ―regional center‖ under that program

are largely regulatory in nature as the regulations were pretty much a blank canvass to be

creative with. Unfortunately, the implementing regulations were written by Legacy INS, which

was much more Law Enforcement oriented than today‘s USCIS charged with being Customer

Service oriented in delivering benefits.

II. INTRODUCTION

Prior to the creation of form I-924, Application For Regional Center Under the Immigrant

Investor Pilot Program, an entity wishing to be designated as a Regional Center submitted a

―proposal‖ without any standardized form or fee for the adjudication of that request. Both the

applicants and the adjudicators only had the raw statute and early regulations to guide them. In

the early days of implementation many issues involving the eligibility requirements for

designation, evidentiary requirements, and the procedures to be followed were uncharted

territory for the former INS and the individuals seeking designation of their organizations as

The Evolution of Regional Center Designation Adjudication

The Evolution of Regional Center Designation Adjudication 2

Regional Centers. Bad decisions were made on sub-standard evidence in poor quality investment

opportunities. The earliest Regional Centers offered insufficient investment vehicles that resulted

in insufficient job creation and attracted scam artists and fraudsters. The EB-5 program

languished for years. Many of the early investors did not make full investments and their

Regional Center promoter ―partners‖ made improper ―redemption agreements‖ so that the

investment capital was not placed at risk for the intended purpose of creating jobs for qualified

U.S. workers.

III. REINVENTING EB-5 REGIONAL CENTERS

Direct consultation with USCIS personnel and deep involvement by both the government and

private sector participants in the development of suitable investment vehicles and the valid

methods by which job creation could be predicted and what evidence would be required to show

eligibility was not only commonplace but necessary for both sides. After an initial exploratory

period of open discourse back and forth between USCIS and the EB-5 stakeholder community,

improvements in the quality of Regional Center proposals and associated procedures took place.

During the formation of the ground rules for the revitalized EB-5 Regional Center Program, an

increasing distance became the proper stance for USCIS to take. At first, this distance began to

grow in a natural way without either the government actors or the private sector applicants even

being aware of their respective distancing behaviors.

The ―Regional Center Proposal process‖ was in its infancy and pre-adolescence for a long time.

Then puberty hit and the awkward stage began in earnest. Instead of easy access and open

involvement in the formation of business plans, investment projects, methodologies, and

documentary evidence, USCIS began to put forth more comprehensive substantive information

for a wider audience. USCIS switched over to a line of communication of a more programmatic

style. The hand-holding and coddling fell away and arms-length communication grew in use. A

dedicated Immigrant Investor Program e-mail came into use and, with widespread dissemination

of informal written instructions on How to Apply for Regional Center Designation, quality and

volume of proposals increased greatly. Plans began to be formulated for a new USCIS form and

associated fee as well as centralization of everything EB-5 at a single location for the sake of

consistency and increased oversight of USCIS Designated Regional Centers.

IV. FURTHER DISTANCING OVER TIME

USCIS communication gradually changed from numerous face-to-face in-depth ―consultations‖

to more generalized ―informational meetings‖ then to ―stakeholder engagements‖. The latter

were by teleconferences and large group informational sessions. Questions were, and continue to

be, submitted in advance for well considered responses delivered to groups of stakeholders

whether orally at stakeholder meetings with verbatim write-ups and slideshow presentations or

via teleconferences followed up with executive summaries and some individual responses

The Evolution of Regional Center Designation Adjudication

The Evolution of Regional Center Designation Adjudication 3

(submitted for general question only) through a publicly available programmatic e-mail inquiry

system. These various avenues of inquiry have resulted in formal written summaries and Q&A‘s

posted on the public website after careful editing.

V. FORMALIZATION OF THE REGIONAL CENTER PROCESS

Following the formalization of the application process including the refinement of

communication and later, the creation of an actual form, with a fee, for the adjudication and

designation as a Regional Center, the general underlying principles applied to other applications

and petitions had to be affirmatively applied to Regional Center designation proceedings. Certain

participants had, and some continue to have, difficulty in adjusting to the more formal

information dissemination, application and, adjudication processes.

USCIS previously freely participated in informal discussions as to how to proceed in a

procedural void that offered no formal guidance on how to apply and required no application or

petition to be filed for an adjudication for which there was no fee. That situation could be

construed as ex-parte communications1. Certain applicants sought to continue that customary

practice which was allowed and necessary at that time which was before a radical formalization

of the application process.

In the absence of formal guidance or any formal procedures or fee for a determination, the very

issues that would need to be addressed for the good of all potential applicants and the entire

program had yet to be fully identified. Up to a certain point in time, which remains unclear, so-

called ex-parte communication was as beneficial to Legacy INS and USCIS as it was to the

potential applicants. Some applicants, quite misguidedly and unfortunately, have tried to assert

total fabrications and/or gross misinterpretations that they falsely or mistakenly claimed to be

such ex-parte communications as binding pre-adjudication decisions that USCIS must abide by.

Naturally, USCIS has clamped down on that approach and thrown up a brick wall to it. It was a

necessary evil to cut off free and open communications and discourse when it was misused by

bad actors. This was, and remains, a detriment to all participants, which includes USCIS and all

private sector participants including Regional Centers, their immigrant and domestic investors.

VI. MATERIAL CHANGE PROHIBITION

Then along came the concept of ―material change‖. What is ―material change‖? The USCIS

administrative appellate body, the Administrative Appeals Office (AAO) has offered some

1 ―…AAO notes that ex parte communications are prohibited by the Administrative Procedure Act (APA), 5 U.S.C. § 706. According to section

551 (14) of the APA, ―ex parte communication‖ is defined as ―an oral or written communication not on the public record with respect to which

reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this

subchapter.‖‖ Non-Precedent AAO Decision on a Regional Center Proposal Denial Appeal http://www.uscis.gov/err/K1%20- %20Request%20for%20Participation%20as%20Regional%20Center/Decisions_Issued_in_2008/Nov182008_01K1610.pdf

The Evolution of Regional Center Designation Adjudication

The Evolution of Regional Center Designation Adjudication 4

guidance on this topic and generally follows prior precedent by the Board of Immigration

Appeals (BIA)2 in its prior decisions but has expanded on the concept and given it this name.

Matter of Izummi, 22 I&N Dec. 169 (BIA3 1998) holds, in pertinent part:

(3) A petitioner may not make material changes to his petition in an effort to make a

deficient petition conform to Service requirements.

That same decision goes on to further explain the underlying requirement, thus:

―A petitioner must establish eligibility at the time of filing4; a petition cannot be

approved at a future date after the petitioner becomes eligible under a new set of facts.

See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Therefore, a petitioner may

not make material changes to a petition that has already been filed in an effort to make an

apparently deficient petition conform to Service requirements.‖ [emphasis added]

Matter of Katigbak, 14 I&N Dec. 45 (Reg, Comm., 1971) is often cited with regard to the

general principle, as restated in Izummi , that one ―must establish eligibility at the time of filing"

and as expanded upon in the 3rd prong of the 13 prong holding in Izummi, prohibiting the

making of material changes subsequent to filing to remedy deficiencies. This is not to be

confused with a mere matter of supplying further evidence in response to a request for evidence.

The prohibition is against creating new circumstances and new facts for which no evidence

previously existed in the absence of a material change made subsequent to filing.

It should be remembered that both of these Precedent Decisions, Katigbak and Izummi involved

visa petitions that are tied inextricably to the ―filing date as the priority date‖ for purpose of

obtaining a place in a potentially very long line for an immigrant visa. Such immigrant visas

being among the visa preference categories for which there are numerical limitations and country

of origin quotas. There has never been full utilization of all available EB-5 visas in any year of

the visa‘s existence but they do have actual statutorily prescribed numerical limits in addition to

the overall country quotas. Regional Centers do not rely on a priority date for issuance of its

―Designation‖ instead imperfect filings can be perfected as a precursor to subsequent mass

filings by individual immigrant investors. USCIS shares responsibility with the Regional Centers

to get the preliminary matters in order as a service to the ultimate customer, the EB-5 immigrant.

2 The Board of Immigration Appeals (BIA or Board) was previously a part of the former Immigration and Naturalization Service(INS), then was

spun off on January 9, 1983, through an internal Department of Justice (DOJ) reorganization which combined the BIA with the Immigration Judge functions previously performed by INS and became a sister agency with oversight responsibility over INS but also within DOJ. The

remainder of the former INS was abolished on March 1, 2003, and is now part of the Department of Homeland Security (DHS) but EOIR was

retained in DOJ. 3 Although the decision as noted on the EOIR website lists this as a BIA precedent and the actual I&N Decision credits it to, then INS, Regional

Commissioner, it was actually rendered by the AAU, of what was then INS (now AAO of USCIS). 4 On April 17, 2007, 72 FR at 19105 added 8 CFR § 103.2 Applications, petitions, and other documents. (b)(1) Demonstrating eligibility at

time of filing. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or

petition. All required application or petition forms must be properly completed and filed with any initial evidence required by applicable

regulations and/or the form‘s instructions. Any evidence submitted in connection with the application or petition is incorporated into and considered part of the relating application or petition. http://edocket.access.gpo.gov/2007/pdf/E7-7228.pdf

The Evolution of Regional Center Designation Adjudication

The Evolution of Regional Center Designation Adjudication 5

VII. MISAPPLICATION OF I&N PRECEDENTS5

In short there are two guiding principles under consideration:

1. That one must establish ―eligibility at the time of filing‖, per Katigbak and

2. That one ―may not make material changes to his petition in an effort to make a deficient

petition conform to [USCIS] requirements.‖ Per Izummi.

These principles have invaded the psyche of many USCIS Adjudicators and, obviously, the

AAO. They are being misunderstood and misapplied to inapplicable benefit applications. That

decision in Katigbak relates to the filing of and the individual beneficiary‘s qualifications for an

employment-based preference immigrant visa petition because the filing date sets a priority date

for visa issuance purposes as stated in Title II of the INA (see generally, INA 203). This general

principle has clear applicability to certain other petitions and applications but does not apply to

everything.

The ―I-924 applicant‖ need not demonstrate full eligibility, in all respects, at time of filing. The

approval of an I-924 does not in itself provide an actual immigration benefit. It only provides a

label, i.e. ―USCIS Designated Regional Center under the Immigrant Investor Pilot Program‖.

That designation allows for the marketing of a business venture to a wider audience with the

inducement of an easier immigration visa process and perhaps the only avenue for U.S.

immigration available to the immigrant investor. The Regional Center affiliated immigrant

investor may rely on ―indirect jobs‖ forecast through an ―economic model‖ which has been

provided by the Regional Center and at least reviewed by USCIS as to its methodology either for

an actual project or an exemplar project similar enough to the subsequent actual investment

vehicle to instill confidence in successful attainment of an EB-5 immigrant visa.

Similar to an N-400, Application for Naturalization, only certain prerequisites need be

demonstrated in order to file, while other eligibility factors are subject to modification after

filing. For example, if the ―I-924 applicant‖ is a variety of partnership (LLP or LLC), Company

(Co.) or Corporation (Inc. or Corp.), then such entity must actually exist by having properly

applied for and received such designation in accordance with governing laws and regulations in

order to file an I-924 application as such entity6.

On the other hand, an I-924 applicant may initially request a certain geographic area, for instance

an entire State, but might submit an economic model that addresses only certain parts of that

State. This disparity may be addressed in more than one way. USCIS may work with the

5 Full Title: ―Administrative Decisions Under Immigration and Nationality Laws of the United States‖, cited as ―vol. #‖, I&N Dec.‖page #‖ (source, Year), i.e., (AAO or BIA or A.G., 2011) 6 ―The regulation at 8 C.F.R. § 204.6(j) notes that additional evidence other than that specified in the regulations may be required. Clearly, only

an entity that exists can be designated as a regional center. Thus, it is reasonable to require evidence of the proposed regional center's existence.‖

From a non-precedent AAO Decision at: http://www.uscis.gov/err/K1%20-%20Request%20for%20Participation%20as%20Regional%20Center/Decisions_Issued_in_2008/Nov182008_01K1610.pdf at page 5.

The Evolution of Regional Center Designation Adjudication

The Evolution of Regional Center Designation Adjudication 6

Regional Center principal(s) to refine the geographic area by limiting the Regional Center to

certain contiguous counties or metropolitan statistical areas that are covered by the economic

model already on hand. In the alternative, USCIS may allow new evidence to be submitted in the

form of a new and/or revised economic model. These interactions will be handled through

issuance of, either 1.) a request for evidence (RFE) and the additional evidentiary materials

submitted in response, or 2.) a Notice of Intent to Deny (NOID) and the rebuttal evidence

submitted in response, with the new evidence being evaluated and added to the record of

proceeding (ROP).

Similarly, the templar documents (subscription agreements, partnership agreements, operating

agreements, etc…) to be utilized by the Regional Center in its individual immigrant investor

transactions may be modified during the pendency of the I-924 in order to make them conform to

the EB-5 laws and regulations that those documents as legal instruments of the investment will

be required to comply with at time of filing the individual I-526, Immigrant Petition by Alien

Entrepreneur. This aspect of the I-924 adjudication is where much confusion lies with USCIS

adjudicators, Regional Center applicants and their counsel, as well as AAO.

Until such time as actual immigrant investors file their individual I-526 petitions, the Regional

Center is able to make changes to their templar documentation, business plans, economic

forecasts, investment schemes, side agreements with other parties, etc… Any substantive

material changes made after USCIS Designation through the I-924 adjudication but before any

such materially affected or substantially altered standard document, or revised business plan

and/or economic model is submitted to USCIS with an actual petition seeking an actual

immigration benefit, re-adjudication may be required. Improper changes may negate that prior

determination as to that altered substantive evidence submitted that is anything other than what

was previously vetted by USCIS during the I-924 adjudication. Commonly, this action can be

termed as ―bait and switch‖. This circumstance may have unwanted and detrimental

ramifications on the alien investor‘s ability to qualify for the immigrant classification for an EB-

5 immigrant visa for the alien entrepreneur and his/her spouse and unmarried children under age

21.

VIII. TAKING STOCK—CLARIFICATION OF INQUIRY

Upon arriving at this point in this discussion, it is important to stop and clarify the pertinent

questions to be considered in I-924 and associated I-526 and I-829 adjudications. What

constitutes a “material change”? When does the “material change” need to be addressed? By

what mechanism does a “material change” get addressed? What are the consequences of a

“material change”? What steps must be taken to continue with the immigration process for the

immigrant investor based on a “material change” made by the Regional Center?

The Evolution of Regional Center Designation Adjudication

The Evolution of Regional Center Designation Adjudication 7

The following is an excerpt from an AAO non-precedent decision involving an I-526 found at:

http://www.uscis.gov/err/B7%20-%20Form%20I-526%20and%20I-

829/Decisions_Issued_in_2010/Sep212010_01B7203.pdf

―In Matter of Izummi, 22 I&N Dec. at 175, the AAO considered counsel's assertion that a

nonprecedent decision by the AAO had approved a "completely different business plan

that abandoned the troubled-business claim and substituted a plan to create a new

business instead." The AAO responded that the decision referenced by counsel was not a

binding precedent pursuant to 8 C.F.R. § 103.3(c) and concluded "that acceptance of the

new business plan at such a late date was improper and erroneous." Id. at 175. While the

facts in Matter of Izummi involved amendments to agreements rather than a business

plan, that decision opines that the reasoning requiring a petition to be approvable when

filed applies to material changes in business plans as well. See also Spencer Enterprises

v. U.S., 229 F.Supp.2d 1025, 1038 n. 4 (E.D. Cal. 2001) aff’d 345 F.3d 683 (9th

Cir.2003)7 (accepting an AAO determination that business plan amendments submitted

for the first time on appeal could not be considered).‖

IX. MAKING MATERIAL CHANGES—BY REGIONAL CENTERS

The form I-924 may be filed for an amendment by a previously designated Regional Center to

―proof‖ altered standard documentation or an actual business plan and economic model for an

actual venture (as opposed to just an exemplar submission whether based on one or not) to be

subsequently filed en masse by individual immigrant investors in support of their individual I-

526 petitions. This amendment process is available to the Regional Centers in order to protect the

individual investors‘ subsequent petitions, expand their geographic scope, expand their areas of

economic activities and/or industries, financial management concepts (direct investments vs.

leveraged financing vs. loans), as supported by new and/or updated economic models,

subscription agreements, financial transaction mechanisms (escrow arrangements, OFAC

licenses, etc…) and also to protect their own reputations and avoid denials of individual

petitions. All parties would likely agree that it is most undesirable when these overall Regional

Center coordinated aspects and functions have to be re-adjudicated ad-hoc at the wrong time in

the process due to a ―surprise‖ ―material change‖ made after the approval of the Regional Center

Designation but before the individual petitions are filed by the alien investors.

USCIS adjudication processes, in general, and, especially in the EB-5 sphere, have always been

highly attuned to detect fraud. Certain ―material changes‖ made after the Regional Center was

first approved or most recently amended are easily seen as attempts at fraud through ―bait and

switch‖ tactics even if they are true inadvertent oversights. Documentation used as supporting

evidence in I-526 petitions by numerous immigrant investors that has been fully vetted and that

remains materially unaltered helps to speed the immigration process for the alien investors and

move the investment project along most expeditiously.

7 Spencer v. INS found at: http://archive.ca9.uscourts.gov/ca9/newopinions.nsf/752876AC2E72D7B088256DA3007BDB70/$file/0116391.pdf?openelement

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The Evolution of Regional Center Designation Adjudication 8

X. LATE STAGE MATERIAL CHANGES

The amendment process afforded by the I-924 is the best way to address major ―material

changes‖ early in the process. Sometimes, however, due to a variety of external pressures and

economic realities, circumstances may dictate that ―material changes‖ will happen at later stages

in the project which is the object of the investment by the immigrant investor. Depending on the

individual investor‘s progression in a project and immigration process, they may need to file a

new I-526 with a new business plan and/or new or updated economic model, or they may need to

file a new I-526 and then an I-407 (to give up the conditional resident status) along with a [first

or new] I-485 and attain new conditional status. Re-adjustment extends to the dependents and

children may be in danger of ―aging-out‖ as a dependent. CSPA8 does apply but has its particular

quirks unto itself. That second investor process may come before or after filing an I-829, Petition

by Entrepreneur to Remove Conditions. Coming after the filing of an I-829 is the least desirable

position for everyone. It is nerve-wracking to the investor and family, it is potential bad press for

the Regional Center and to the program overall. The EB-5 program is under the oversight of

USCIS/DHS and is the brainchild of the U.S. Congress. None of the participants in EB-5 likes

bad press, especially folks who get plenty of it anyway.

XI. CHANGES AFTER THE FACT--NOT SOMETHING NEW UNDER THE INA

By comparison, a naturalization applicant must meet a minimum physical presence requirement

and must have had their status for a minimum period of time, in most cases, before they may file

an N-400, but, continuous residence can be broken and good moral character can be lost or

proven after filing. A long absence from the United States or an affirmative change of residence

abroad after filing an N-400 can make one ineligible. A crime committed or prosecuted after

filing may negate good moral character, while the end of probation for an otherwise non-

determinative crime or violation may serve to rehabilitate and cement eligibility for

naturalization, after filing, despite the prohibition against naturalizing (as in administering the

Oath to) a person who is still on probation.

Naturalization has aspects towards eligibility that are prerequisite to filing the application but it

is not complete until the final administration of the Oath of Renunciation and Allegiance. An N-

400 is only ―recommended for approval‖ until such time as the applicant is admitted to

citizenship. The premise of an investment as asserted in a Regional Center application, i.e. the

business plan, and the previously vetted written documentation, are only ―recommended for a

favorable determination‖ as supporting prima facie evidence of eligibility for a future I-526 and

even further I-829. A prima facie showing of eligibility, through use of previously vetted plans

and documentation, is a good starting point but is not the final word. An individual applicant

must still prove complete eligibility for a favorable determination on the individual petition.

8 The Child Status Protection Act (CSPA) guidance memo and AFM Update:

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/cspa_30apr08.pdf

The Evolution of Regional Center Designation Adjudication

The Evolution of Regional Center Designation Adjudication 9

XII. INAPPLICABILITY OF “ELIGIBILITY AT TIME OF FILING” TO I-924

The holding in Katigbak is actually:

To be eligible for preference classification under 203(a) (3) of the Immigration and

Nationality Act, as amended, the beneficiary must be a qualified member of the

professions at the time of the filing of the visa petition. Education or experience

acquired subsequent to the filing date of such visa petition may not be considered in

support thereof since to do so would result in according the beneficiary a priority date for

visa issuance at a time when not qualified for the preference status sought. [emphases

added]

Preference visas are allocated on a first-in, first-out system of quotas by country based on

specific pre-existing relationships of a family-based category or pre-existing relationships and/or

qualifications of an employment-based category. For I-140, I-130, I-526, I-730 and most I-3609

visa petitions, this concept generally makes sense. The form I-526 lays the foundation for an

immigrant investor to build upon.

Izummi deals with very complex issues ranging from an individual immigrant investor‘s I-526

petition to requirements related to designation as a Regional Center (something now applied for

via an application form I-924 but previously merely by a ―Proposal‖ at the time of that AAO

decision.) The underlying Regional Center designation, associated economic analysis, business

concepts and organization have further implications on the individual investor‘s I-52610

visa

classification petition and the associated follow-up I-829 petition to remove conditions.

The whole of EB-5 is intertwined in a highly complex manner that dictates that the separate

petitions and applications overlap one another. That unique and highly complex set of

circumstances is not a proper Precedent outside its particular sphere any more than Katigbak.

Broad-brush generalization from the specific has its limits in any discipline and Immigration

Law is not any different in that respect.

A. The Form I-526 Stage:

The form I-526 is supported by a viable business plan that makes a credible projection as to job

creation which is supported by the reasonable assumptions in a statistically valid economic

model based on an excepted methodology. Through the I-526, the immigrant investor says: ―This

is what I am going to do and here is how I am going to create the required jobs.‖ The plan

asserted at this stage is the one against which the later I-829 will be assessed for follow through.

If the plan has been materially changed from what the investor originally put forth, then what

9 VAWA based petitions which may involve the underlying I-130, a subsequent I-360 or an I-751and may be renewed after a divorce is

concluded, so a changed circumstance is not an absolute determinative factor of the final outcome on the petition(s). 10 The USCIS EB-5 Memo of December 11, 2009, allows a new I-526 to be filed and re-adjustment due to material changes, see: http://www.uscis.gov/USCIS/Laws/Memoranda/Static%20Files%20Memoranda/Adjudicating%20of%20EB-5_121109.pdf

The Evolution of Regional Center Designation Adjudication

The Evolution of Regional Center Designation Adjudication 10

follows at the I-829 stage becomes an unknown quantity. That is not the appropriate stage of the

process to assert a new business plan and a new economic model.

B. The Form I-829 Stage:

The form I-829 stage should be a straight forward fact-checking process the purpose of which is

to determine if the assumptions put forth at the I-526 stage have come to fruition.

Example #1: The model predicts at the I-526 stage that the infusion of X amount of money

invested in project/company Y will result in Z number of jobs. At the I-829 stage one must show

that X actually was invested in Y and USCIS should accept that Z number of jobs, have been

created.

Example #2: The model predicts that one will invest in a mall and X number of mall tenant's jobs

will be created and because of that, Y number of indirect jobs will be created based on

investment of Z amount of money. Here, the investor would need to show that Z was invested in

the mall and tenants have taken leases on the stores in the mall. Because of this, one can assert

that X number of tenant jobs have been created, therefore, Y number of indirect jobs have also

been created and one has met the requirements to lift conditions on residence status.

C. Contrasting to the Form I-924:

In contrast to an I-526 or I-829, an I-924 invites material changes and it is a major function of

USCIS to do all it can to help the Regional Centers get all their ducks in a row. USCIS would not

have to view itself as being altruistic. Instead, this approach can rightfully be seen as a self-

serving function. The better the quality of initial submissions by immigrant investors, the easier

the adjudication of the subsequent petitions. The underlying Congressional intent in creating the

pilot program and its Regional Centers was to facilitate immigrant investment. Congress sought

to attract foreign capital in order to infuse the U.S. economy with needed capital investments and

promote regional economic benefits and stimulate job creation. Hence, the immigrant visa is

known as the employment creation visa.

The AAO clearly points out that USCIS is strongly encouraged to accept assertions made during

the Regional Center preliminaries later on at the I-526 stage of the process. This is a desirable

outcome for USCIS because to be able to do so makes the subsequent I-526 adjudication easier.

In order to fulfill such a request, the initial Regional Center evidence must be worthy of

consideration later on. This is akin to Chevron11

deference, except by an administrative agency

towards a private sector entity in this case, the particular Regional Center. A Regional Center

bears the burden of proof in laying the foundation upon which the future immigrant investor

11

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a case in which the United States Supreme Court

set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers.

Chevron is the Court's clearest articulation of the doctrine of "administrative deference," to the point that the Court itself has used the phrase "Chevron deference" in more recent cases

The Evolution of Regional Center Designation Adjudication

The Evolution of Regional Center Designation Adjudication 11

petition cases will be built. In order to serve its primary purposes of promoting economic growth,

improved regional productivity, job creation, and increased domestic capital investment it must

put forth the required evidence. Such evidence establishes a sound basis upon which to build.

Such evidence necessarily will include a sufficiently detailed and comprehensive business plan

supported by reasonable assumptions based in the current economic reality. It needs to be further

supported by statistically valid forecasting tools, including, but not limited to, feasibility studies,

market forecasts, and economic analyses. As stated earlier the distinction that comes will the

attainment of the moniker of “USCIS Designated Regional Center under the Immigrant

Investor Pilot Program” has advantages. That designation allows for the marketing of a variety

of business ventures to a wider audience with the inducement of an easier immigration visa

process and perhaps the only avenue for U.S. immigration available to the immigrant investor.

From a non-precedent AAO Decision of a Regional Center Proposal on certification found at:

http://www.uscis.gov/err/K1%20-

%20Request%20for%20Participation%20as%20Regional%20Center/Decisions_Issued_in_2009/

Dec222009_02K1610.pdf

―On certification the applicant submitted a business plan and a new economic analysis of

the two projects identified by counsel. As stated above these documents were specifically

requested by the director and the applicant chose not to comply with that request. On that

basis alone the petition may not be approved. 8 C.F.R. § 103.2(b)(14). While counsel is

correct that the regulations provide that specifics are required at the Form 1-526 petition

stage and include provisions for terminating a regional center's designation, these

provisions do not imply that USCIS is prohibited from requesting the business plan when

considering a regional center proposal. In fact, USCIS regulations specifically provide

that USCIS may request additional evidence "[i]f all required initial evidence has been

submitted but the evidence submitted does not establish eligibility." 8 C.F.R. §

103.2(b)(8)(iii).

In this case counsel appears to be suggesting that USCIS must approve a regional center

proposal encompassing 14 counties and 11 types of businesses based on an analysis of

three generic projects and three sample projects with no business plan explaining how the

limited partnerships would identify, negotiate and invest in these projects. The regulation

at 8 C.F.R. 204.6(m)(3)(ii) requires the applicant to provide "verifiable" detail as to how

the jobs will be created. The director cannot determine whether an economic analysis is

reasonable without some type of business plan explaining how the applicant plans to

invest in the proposed projects. USCIS has a clear interest in evaluating the business plan

at the regional center stage. Binding precedent makes clear that USCIS does not pre-

adjudicate petitions or eligibility requirements. Each petition must be adjudicated on its

own merits. Matter of Izummi, 22 I&N Dec. at 190-1 91. Despite this binding precedent

we note that USCIS is encouraged to accept any projections previously submitted at the

regional center stage when adjudicating the Form 1-526 petitions filed by individual alien

investors, absent fraud and provided that there has been no material change.) USCIS will

not, however, abdicate its authority to verify that the regional center proposals are

reasonable. Thus, the director did not err in requesting a business plan and an economic

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The Evolution of Regional Center Designation Adjudication 12

analysis that takes into account the differences among all of the counties within the

proposed regional center, and we need not consider the business plan or economic

analysis submitted on certification. Nevertheless, for the reasons discussed below, the

materials subsequently provided do not render the proposal approvable.‖

An I-924 is similar to an N-400 in terms of reciprocity also. In the case of: Luria v. United

States, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101 (1913), quoted below, it was recognized by the

U.S. Supreme Court that a grant of naturalization is a mutual agreement between the

naturalization applicant and the United States of America. The designation as Regional Center

can be viewed in a similar light. There must be a mutual agreement between the parties to respect

their agreement. Each party bears a responsibility to the other.

The Regional Center must prove itself to get the desired chance and then it must fulfill its

promise through its actions. Just as a naturalization applicant can perfect his/her N-400

application during the process, so too, can a Regional Center applicant perfect its I-924

application. A naturalization applicant automatically has two chances to pass INA § 312 English

and civics requirements and is afforded more chances through a ―Second Hearing‖ (N-336

‗appeal‘) and three further tiers of judicial review. A Regional Center should be afforded ample

opportunities to perfect its application for designation due to the benefits that it is expected to

provide in return for that honor. Many high standards and promises are extracted from the

applicant in order to attain status and gain rights and privileges in an air of mutual agreement to

assume and bear obligations and duties on both sides in a formal exchange between them.

―Citizenship is membership in a political society, and implies a duty of allegiance on the part

of the member and a duty of protection on the part of the society. These are reciprocal

obligations, one being a compensation for the other…….

……These requirements plainly contemplated that the applicant, if admitted, should be a

citizen in fact as well as in name,—that he should assume and bear the obligations and duties

of that status as well as enjoy its rights and privileges. In other words, it was contemplated

that his admission should be mutually beneficial to the government and himself, the proof in

respect of his established residence, moral character, and attachment to the principles of the

Constitution being exacted because of what they promised for the future, rather than for what

they told of the past.‖

XIII. CONCLUSION

Regional Centers are supposed to be supported by USCIS in their efforts to aid the immigrant

investors in meeting the statutory requirements as set by Congress in order to attain their

immigrant status and that of their dependent family members as a thank you for investing in

America. While it is the function of USCIS to evaluate the individual applicants and petitioners

as to their eligibility for the benefit sought under the INA, it is not the function of USCIS to

make the application or petition process any more difficult than it already is, or deny any benefit

unjustly.

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The Evolution of Regional Center Designation Adjudication 13

The Regional Center is supposed to be a welcoming benevolent agent of the U.S. that draws

foreign investors into the U.S. economy. Regional Centers are supposed to be partners to USCIS.

They are unofficial ambassadors of the U.S. and their purpose is to make the attainment of

immigration benefits (immigrant visas for the investor and family) easier by doing the hard work

of project planning and coordinating multiple investors (foreign and domestic), providing sound

investment strategies designed to create sufficient jobs which are supported by reasonable and

valid economic predictions.

In the realm of Regional Center Designation it is the responsibility of USCIS to do all it can to

make the process function as well as it can for all concerned. Proofreading, editing and causing

material changes to standard business documents to be used, overall business plans, and

associated economic models is well within the realm of USCIS adjudicators in evaluating the

evidence submitted with an I-924. It is not in the best interest of USCIS to accept documentation

at the I-924 stage that will not be acceptable at the I-526 stage of the process. It is in the best

interest of USCIS, the Regional Centers, the immigrant investors and most especially the U.S.

economy and the U.S. workers, to help perfect I-924 applications and do it most expeditiously.

XIV. FOR EASY REFERENCE

8 CFR § 204.6 Petitions for employment creation aliens.

(e) Definitions. As used in this section:

*****

Regional center means any economic unit, public or private, which is involved with the

promotion of economic growth, including increased export sales [if any], improved

regional productivity, job creation, and increased domestic capital investment.

*****

(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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The Evolution of Regional Center Designation Adjudication 14

(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 Adjudications12

, 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 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.

(4) Submission of proposals to participate in the Immigrant Investor Pilot Program. On

August 24, 1993, the Service will accept proposals from regional centers seeking

approval to participate in the Immigrant Investor Pilot Program. Regional centers that

have been approved by the Assistant Commissioner for Adjudications will be eligible to

participate in the Immigrant Investor Pilot Program.

(5) Decision to participate in the Immigrant Investor Pilot Program. The Assistant

Commissioner for Adjudications shall notify the regional center of his or her decision on

the request for approval to participate in the Immigrant Investor Pilot Program, and, if the

petition is denied, of the reasons for the denial and of the regional center's right of appeal

to the Associate Commissioner for Examinations. Notification of denial and appeal

rights, and the procedure for appeal shall be the same as those contained in 8 CFR 103.3.

(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

12 For proposals submitted by regional centers under the Immigrant Investor Pilot Program, the regulations provide that proposals must be

submitted to the ―Assistant Commissioner for Adjudications,‖ a position held at the Headquarters of the former Immigration and Naturalization Service (INS). However, this position was rendered obsolete following the abolishment of INS in March 2003. See 6 U.S.C. 291; Homeland

Security Act of 2002, Public Law 107–296, 116 Stat. 2135 (Nov. 25, 2002). No parallel position is present in USCIS. In the absence of further

guidance, regional centers wishing to participate in the Immigrant Investor Pilot Program had been submitting their proposals to the Chief of Service Center Operations. This was shifted to the Director of the California Service Center as noted in 74 FR 912 (Jan. 9, 2009).

The Evolution of Regional Center Designation Adjudication

The Evolution of Regional Center Designation Adjudication 15

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 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.

(7) Requirements for alien entrepreneurs. An alien seeking an immigrant visa as an alien

entrepreneur under the Immigrant Investor Pilot Program must demonstrate that his or her

qualifying investment is within a regional center approved pursuant to paragraph (m)(4)

of this section and that such investment will create jobs indirectly through revenues

generated from increased exports resulting from the new commercial enterprise.

*****

(ii) Indirect job creation. To show that 10 or more jobs are actually created indirectly by

the business, reasonable methodologies may be used. Such methodologies may include

multiplier tables, feasibility studies, analyses of foreign and domestic markets for the

goods or services to be exported, and other economically or statistically valid forecasting

devices which indicate the likelihood that the business will result in increased

employment.

*****

(9) Effect of termination of approval of regional center to participate in the Immigrant

Investor Pilot Program. Upon termination of approval of a regional center to participate

in the Immigrant Investor Pilot Program, the director shall send a formal written notice to

any alien within the regional center who has been granted lawful permanent residence on

a conditional basis under the Pilot Program, and who has not yet removed the conditional

basis of such lawful permanent residence, of the termination of the alien's permanent

resident status, unless the alien can establish continued eligibility for alien entrepreneur

classification under section 203(b)(5) of the Act.