Tenant Occupancy on April 27, 2012

Introduction:

On April 27, 2012 USCIS held a public engagement meeting in Washington, DC with Director Mayorkas aiming to address the issue of “tenant occupancy” presented in the economic methodology. Mona Shah & Associates participated in the meeting on the teleconference. The meeting was conducted in a conversation and discussion format, with 25 representatives from Regional Center, law firms, think tanks and projects interested in EB-5 finance. The meeting lasted approximately 2 hours.

What is Tenant Occupancy?

Tenant occupancy is an economic methodology utilized to count job creations by counting tenant leasing business in a real estate EB-5 project.

A memorandum released by USCIS on February 20, 2012 states:

“The ‘tenant-occupancy’ methodology seeks credit for job creation by independent tenant businesses that lease space in buildings developed with EB-5 funding. USCIS continues to recognize that whether it is economically reasonable to attribute such ‘tenant-occupancy’ jobs to the underlying EB-5 commercial real estate project is a fact-specific question. Each case filed will depend on the specific facts presented and the accompanying economic analysis.”

USCIS has been vigorously hiring independent economists to look into the comprehensive business plan to assure the submitted projects are viable and credible, given that the collapse of several private and governments sponsored EB-5 projects. Mona Shah & Associates predict that there will be more RFEs on the project’s reasonable methodologies adopted to support the job creation in the economic impact report. More conservative methodologies will be preferred. Economic methodologies such as tenant occupancy that tend to show more job creations will be continuously challenged.

Questions Raised in Recent RFEs:

The questions raised in recent RFEs on the tenant occupancy issues include: the tenant occupied the leasing space in a real estate project may not be counted as new jobs created. It may simply be a relocation of the existing employment. Other questions such as which entity shall the tenant jobs be contributed to? Whether it is the regional center real estate project or the existing tenant business?

A redacted RFE shared by a regional center states:

“Contemporary economic methodologies appear to indicate that such jobs would be more appropriately be attributed to the tenants themselves and not to RC because the demand for labor precedes the decision about where to house that labor as a general economic principle. For example, if a federal agency determined that additional federal employees needed to be hired to fulfill the agency’s mission at a particular location, the federal agency would see to hire the requisite number of employees and as part of that process, would also take steps to lease the appropriate physical premises to provide sufficient workspace for the new hires. In this instance, it is the federal agency that is creating the jobs through its decision to hire more employees, not the landlord who will ultimately lease the workspace to the federal agency.”

Inconsistent, Retroactive and Unpredictable Policies?

Director Mayorkas in his opening statement mentioned that the reason the “tenant  occupancy” issue is because there are significant concerns in the EB-5 community that USCIS’ recent adjudication raises uncertainties in the economic methodology. The Director assures the EB-5 community that the USCIS gives “deference to previous approval” in the analysis and methodology for the job creation submitted for the I-924 regional center petition. However, in the actual I-526 petition if specific fact patterns are introduced, there is a possibility that the economic methodologies previously submitted will be revisited.

The Director also mentioned that the USCIS is well aware that the law does not require the regional center to provide a particular methodology in support of a petition. Rather the law requires a “reasonable” methodology. Whether a certain methodology is reasonable depends on the specific facts. The Director did not discuss the technicality of the economic impact methodologies, policy wise, the director stated USCIS has not changed any policy regarding the tenant occupancy, nor did they change the applicable criteria.

Regarding the USCIS “deference policy” the director states:

“If we approved an I-526 petition for an immigrant investor based on a specifically-identified project, not associated with a Regional Center, we will not revisit the determination that the business plan was reasonable when adjudicating the investor’s related I-485 or I-829 petition.”

Questions and Concerns from the EB-5 Community

Despite Director Mayorkas’ effort to assure there is no change in USCIS policies, representatives from regional center, law firm, the economists who work with regional center, think tanks, project principals raised a number of interesting questions regarding the USCIS policies.

One economist mentioned that in his 30 years career, never did he hear once the term “contemporary methodology”, which is frequently used in the project RFEs regarding tenant occupancy. In addition, since most of the projects are located in an area with high unemployment rate, it is fundamentally contradictory to require the area to have “excess demand” for goods or service the project provides.

Mona Shah & Associates believes the USCIS adjudication may cause an interesting phenomenon in economic academia. As it appears that the economists hired by the USCIS adopted a certain analysis methodologies that are rejected by other economists. It concerns the economic views on the economic impact of the development activities on job creation in a certain area. The academia should give its participants freedom to express its views, in the case of the job creation, the more liberal views that the activities may create more jobs; or the conservative views that the activities may create less jobs. It is certainly not a matter of black and white. However, since the economists working with USCIS adjudicators tend to prefer the conservative views. It may cause an academic monopoly in the economic impact analysis for the EB-5 projects.

Another regional center principal raised the question that USCIS rule making is in violation of the Administrative Procedure Act. It is inconsistent, retroactive and unpredictable. If a regional center submitted its petition 1.5 years ago, long before independent economists were hired within the Service, the new rule should not apply to the said regional center because at the time of the petition, the tenant occupancy rules simply did not exist.

A think rank representative raised the point that to answer the questions raised in the project RFE regarding the tenant occupancy, it places undue burden on the projects because only confidential data from the tenants business can answer the particular questions raised in the RFE.

What Happens to the Premiere Processing?

On a side note, many regional centers are interested in the shovel ready projects that might be granted premiere processing by the USCIS. The Director confirms that it is not likely to happen any time soon, since the Service is significantly concerned about the general integrity of the EB-5 programs. The fast track process may jeopardize the Service responsibility to guard the foreign investors from fraud.  Though it is not exactly good news for the EB-5 projects, generally speaking it may better serve the interest of the individual investors because to some extents by adjudicating each and every project thoroughly the USCIS can prevent the fraudulent projects from polluting the market.

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By Yi Song[1], Esq.

April 29, 2012

Introduction

Arizona passed the most aggressive immigration enforcement law in recent years. It’s commonly known as Arizona “S.B.1070” or show-me-your-paper law. The oral argument was heard by the Supreme Court on April 25, 2012 in Washington, DC. The law is expected to shape the development of immigration policies and redraw the boundaries to the immigration law enforcement. This article discussed the perspectives from the state and the federal government and analyzed the Supreme Court’s likely ruling on the case.

Arizona Law S.B. 1070

The Arizona law SB 1070, passed in April 2010, encourages “the cooperative enforcement of federal immigration laws throughout all of Arizona”[2]. Four provision of the law is at issues before the Supreme Court. Section 2(B) and Section 6 directly addressed to inquiries and arrests by law enforcement. Section 3 addresses the federal registration requirements by making a state crime for those who fail to register their status with the federal government; and Section 5(C) addresses the unlawfully present aliens’ employment issue.

Section 2(B) provides that “for any lawful stop, detention or arrest made by Arizona law enforcement, where reasonable suspicion exists that the person is an alien and it unlawfully present in the US, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person”[3]. Section 2(B) also includes the provision that “any person who is arrested shall have the person’s immigration status determined before the person is released.”

Section 3 requires the alien to complete or carry an alien registration document. The state argues that Section 3 is parallel to the federal registration requirement. The federal government argues that Section 3 eventually gives the state official the function to criminally prosecute unlawfully present and unregistered aliens. It is in direct conflict of the federal government agency’s discretion.

Section 5 of the Arizona law provides “it is a misdemeanor for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work solicit work in a public place or perform work as an employee or independent contractor in this state.”[4] It makes a state crime for the unlawful presented aliens to apply for work, solicit work and perform work.

Section 6 authorizes warrantless arrests of those who have committed any public offense where there is probable cause of removability. The federal government argues that to determine what types of offense makes an alien removable is not an easy task, and such determination is often outside the expertise of the arresting state officers. The immigration law generally does not list specific crimes that make an alien removable but, rather uses “broad categories of crimes, such as crimes involving moral turpitude or aggravated felonies.” Padilla v. Kentucky, 130 S. Ct. 1473, 1488 (2010).

Balance of Federal and State Powers

Before the Solicitor General Verrilli got into the substance of his oral argument, Chief Justice Roberts made it very clear that the argument is not about racial or ethnic profiling, a political issue but a pure legal issue. The question before the Court is whether the federal immigration laws impliedly preempt the four provision of SB 1070.

The State of Arizona argues that the Supreme Court has reaffirmed the position that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the States”. DeCanas, 424 U.S. at 357. However, under current immigration law, the Congress only imposes a civil liability to the unlawful presented aliens seeking employment. The Arizona law imposes a criminal liability on the aliens instead. The Ninth Circuit for that reason unanimously concluded that this said Section of SB 1070 is preempted.

For Section 5 regarding the employment issue, the Congress narrowly defined the role in punishing the state licensed employers. It does not mean to leave the unauthorized workers unregulated. Such unlawfully present aliens are subject to removal and are ineligible for discretionary relief of adjustment of status[5]. Moreover, the Congress intends to have the employers verify the status of the unlawfully present aliens at the time of the hiring, not at the time of “soliciting work”[6]. It is a “careful balance”[7] the Congress struck. But the counterpoint made by the state is “there is a difference between Congress deciding not as a matter of federal law to address employees with an additional criminal prohibition, and saying that decision itself has preemptive effect”.

The state of Arizona argues that there is no direct conflict between the current federal immigration law and the S.B. 1070. The states have inherent authority to enforce federal law. “The cooperative law enforcement is the norm, not something that requires affirmative congressional authorization.” Yet how to define “cooperative enforcement” is disputable. The federal government argues that S.B. 1070 defeats the spirit of cooperative enforcement intended by the Congress. It is an action initiated “by a state, without authorization by Congress or the Executive, to wrest from federal officials the enforcement of federal laws by imposing a mandatory directive as a matter of state law.”[8]

In addition Section 2 of S.B. 1070 would “divert federal resources from implementation of federal priorities and burden lawfully present aliens.” The federal government also made the point that under the circumstances that the “state law interfere with a balanced federal approach even without setting a different substantive standard”, that the state’s inherent authority to enforce federal law is restricted. In the oral argument General Verrilli made the distinction between “answering an inquiry of any individual circumstance” and “a mandatory systematic policy”[9] backed by the Arizona civil liability. Interestingly the federal government uses the allegory in the brief “A stopped clock may be right twice a day, but it is still a facially invalid method to timekeeping.” That basically means that although Section 2 does not preclude officers from conducting verifications of immigration status, it has no valid application. Federal government’s highest enforcement priorities are aliens who threaten public safety or national security, members of criminal gangs, repeat border crossers, recent entrants, etc.[10] Though the federal immigration officers would even welcome some of the verification Section 2 mandates, it always precludes officers from taking federal government’s enforcement priorities and discretion into account in the first place.[11] Obviously a technical question is: how to verify the immigration status of the person? Arizona law provides that “the immigration status may be verifies only by a federally authorized officer or pursuant to the procedures provided by Congress”.

Specifically regarding Section 3 of SB 1070 the federal registration requirement, part of the Supreme Court oral argument focused on how long the procedure may take. Mr. Clement, counsel for the state of Arizona argued that it was a ten minute job. While General Verrilli said it could take significantly longer because the federal system may not have a comprehensive registration records for all persons detained[12]. Besides, a person’s immigration status is a complicated matter overall. Section 3 does not address the complicity in this matter. Some may have validly registered but have not yet received their documents; some may have pending asylum, Violence Against Women Act petition, or being a victim of human trafficking, or victim of a crime of witness to a crime that the system does not have matching records in the federal registration system. The detained persons of the above mentioned categories may be subject to prolonged incarceration as their immigration status cannot be verified due to pending their immigration petitions.

The counsel for Arizona also responded to the public criticism from foreign governments, including the statement that “foreign leaders and bodies have publicly criticized Arizona’s law.” “Mexican Senate has postponed review of a US-Mexico agreement on emergency management cooperation to deal with natural disasters”. The state argues that precedents did not deter the Court from uphold unpopular laws.[13] The federal government argues that the realistic impact of enacting Section 3 and Section 5 of SB 1070 is to not lead to a mass migration back to the immigrants’ country of origin. It is far more likely that it’s going to be migration to other States. That is the exact reason the issues shall have a uniform approach from the federal level.

The state of Arizona made the argument that the Supreme Court did not accept the notion that a state is powerless to deal with the problems caused by illegal aliens. Plyler v Doe, 457 U.S. 202 (1982) at 228 n. 23. In addition, the Congress imposes an affirmative duty on the federal government to respond to a state’s inquiry of the detained persons’ immigration status. “Federal immigration authorities shall respond to an inquiry by a Federal , State or local government agency, seeking into verify or ascertain the citizenship or immigration status of an individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.”[14]

Section 6 of SB 1070 authorizes Arizona law enforcement officers to make warrantless arrests of persons they have probable cause to believe are removable from the United States by reason of having committed a crime[15]. The Arizona argues that the state law enforcement officers have inherent authority to make arrests for immigration law violation, both civil and criminal[16]. It further distinguishes the effect of Section 6 is not “requiring any arrests” but only “authorize them”[17]. The federal government believes “such broad and unilateral arrest authority is not necessary to facilitate true cooperative enforcement”[18] and is without regard for federal priorities for removability.

The Court’s Questioning and Oral Arguments

The Court questioning lasted 1 hour 20 minutes. It is important to note that the oral argument is actually the first time the nine justices (in this case eight) learned the opinions of their colleagues through each justice’s questioning. Other than his usual obligation to question on the substance of the case, Chief Justice Roberts also made sure that each and every issue of the case is discussed. The justices tried to engage in a conversation with Mr. Clement, the counsel for the state and Solicitor General Verrilli. Justice Sotomayor asked more technical questions such as how long the person will be detained before the immigration status can be verified. Justice Breyer, Justice Kennedy and Justice Alito gave hypothetical. Justice Roberts and Justice Ginsberg’ questions were more straightforward and articulated. Justice Scalia questions were brief and sharp. Justice Thomas, being the only justice in history keeping silent for six years straight, did not ask a single question.

The One thing is interesting and rather unusual. Before the Solicitor General Verrilli got into the substance of his argument, Chief Justice Roberts asked him “Before you get into what the case is about. I’d like to clear up at the outset what it’s not about. No part of your argument has to do with racial or ethnic profiling, does it?” General Verrilli said: “That’s correct.”

Only 3 minutes into the oral argument, Justice Sotomayor being the only Hispanic justice on the bench, threw the first question: Her concern is under Section 2(B) of the Arizona law, after the individual is arrested based on probable cause, the inquiry on his or her immigration status should be made, but how long will the person be detained? Justice Breyer followed up with the question with a scenario. What if a US citizen, Hispanic looking, was arrested and he could not provide valid ID. The federal system does not have immigration status of his because he is a US citizen. There is the risk that such a person will be detained for a significantly longer period of time because of the effect of SB 1070 Section 2(B).

Chief Justice Roberts did not seem to be convinced about the federal government’s position that Arizona law diverts the federal government’s control over who to prosecute. He asked General Verrilli “I don’t see how section 2(B) says anything about that at all. All it does is notify the federal government, here is someone who is here illegally and removable. The discretion to prosecute for federal immigration offenses rests entirely with the Attorney General.” Roberts later stated “[Arizona law] is not an effort to enforce federal law. It is an effort to let you know about violation of Federal law. Whether or not to enforce them is still entirely up to you.”

Justice Scalia with his straightforward “funny and outrageous”[19] style of questioning, as once described by his long time fellow justice and friend Justice Ginsberg, asked “You call up the Federal Government, and the Federal Government said yes he’s an illegal immigrant, but that’s okay with us. The State has no power to close its borders to people who have no right to be there?”

Justice Sotomayor asked General Verrilli to answer Justice Scalia’s earlier question that whether it is the federal government’s position that Arizona does not have the power to exclude from its borders a person who is here illegally. Justice Scalia later added “What does sovereignty mean if it does not include the ability to defend your borders?”

Justice Scalia does not think there is a particular problem in the notion that state enforcing federal law. “There’s a federal law against robbing federal banks. Can it be made a state crime to rob those banks? I think it is.” In the context the General Verrilli argued that SB 1070 will also have significant impact on US foreign relations, in particular with Mexico. Then Justice Scalia said “So we have to enforce our laws in a manner that will please Mexico?”

Section 5 made a state crime for unlawfully present aliens to solicit or perform work. This section raised questions among justices, in particular Chief Justice Roberts, Justice Alito and Justice Kennedy. They seemed not to be convinced that the law is not in direct conflict of the Congress’ intent. Chief Justice Roberts practicing his excellent time management duty, said to Mr. Clement “Counsel, maybe it’s a good time to talk about some of the other sections, in particular, section 5(C). That does seem to expand beyond the Federal Government’s determination about the types of sanctions that should govern the employment relationship.”

This decision will be made by only 8 justices because Justice Elena Kagan recused herself because of her work done for the case while she was the solicitor general for the Obama administration. Justice Thomas maintained his impeccable record of being completely silent in the court room. Judging from the ideological divide of the court, Justice Sotomayor, Justice Ginsberg, Justice Breyer are likely to oppose the law, Justice Roberts, Justice Scalia, Justice Alito are likely to support at least the part of the law on “cooperative enforcement”. Being one of the most conservative justices, it is expected that Justice Thomas will vote for the SB1070. Justice Kennedy is the swing vote. There might be a 4-4 split, which means that the ruling of Ninth Circuit stands.

The New York City Immigration Court located at 26 Federal Plaza will be closed from May 7^th – 18^th.  During this time, the court will be reviewing applications for prosecutorial discretion.

Arizona’s SB 1070

Arizona now requires the police to verify the citizenship status of people they stop of arrest.  “Any lawful stop, detention, or arrest made where reasonable suspicion exists that the person is an alien and is unlawfully present in the US, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.”

Americans generally support immigration laws like Arizona’s and are ambivalent about the federal and state roles at the core of the case, a new Reuters/Ipsos opinion poll found.

About 70 percent of those surveyed favored state laws that let police check a person’s immigration status and make it a crime for an illegal immigrant to work in the United States; about 30 percent opposed such measures.

On the question of who has responsibility for immigration laws, the core of the Supreme Court case, 59 percent said immigration was a national issue and laws relating to it should only be made by the federal government; 55 percent said individual states had the right to make such laws, too.

At issue in the case is whether federal immigration law pre-empted and thus barred the Arizona law’s four key provisions.

The Arizona law requires (1) police to check the immigration status of anyone detained and suspected of being in the country illegally. Other parts of the law require (2) immigrants to carry their papers at all times; (3) ban illegal immigrants from soliciting for work in public places; and (4) allow police to arrest immigrants without a warrant if an officer believes they have committed a crime that would make them deportable.

Five other states – Alabama, Georgia, Indiana, South Carolina and Utah – have followed Arizona’s lead and adopted similar laws, parts of which could be affected by the Supreme Court’s ruling. In some of those states, legal immigrants have faced run-ins with local law enforcement.

CPB Announces Proposal to Expand Filing of Joint Customs Declarations

U.S. Customs and Border Protection (CBP) made a proposal to revise its regulations on concerns regarding a family’s return to the U.S. when traveling together and living in one household may make one joint declaration for all members of the family.

CBP proposed to expand the definition of “members of family residing in one household” to include domestic relations – foster children, stepchildren, half-siblings, legal wards, other dependents, and individuals with an in loco parentis or guardianship relationship.  The term would also include two adults who are in a committed relationship, such as long-term companions and couples in civil unions or domestic partnerships where the partners share financial assets and obligation, and are not married to, or a partner of, anyone else.

This can lead to a reduction in the number of declarations and in costs.

DOS Clarifies Fee Reductions

The DOS has now announced that the new reduced visa fee bill price is in effect starting April 13, 2012.  Some nonimmigrant visa fee charges increased.  The DOS will not refund any fees paid at the old, higher rate.  Nonimmigrants who have already paid their lower rate have until July 12, 2012 to have their interview.  Any nonimmigrants who have their interview after July 12, 2012 will be invoiced for the difference between the two rates.

Victory for Transgender Immigration Documents and Marriage Benefits

On Friday, April 13, 2012, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum revising the treatment of gender designations for transgender people on their immigration documents.

The new guidance also makes clear that if a couple has married as a different-sex couple under state law, the federal government will continue to recognize the marriage for immigration purposes regardless of a person’s subsequent gender transition.

USCIS is superseding previous guidance relating to transgender individuals to reflect the broader range of clinical treatments.

Significantly, the gender designation change is modeled after the U.S. State Department’s updated passport policy, which does not require sex reassignment surgery. It brings USCIS in line with DOS in its guidance for updating gender markers on identity documents – no longer requiring any specific surgery, but instead allowing a doctor to certify the individual’s gender.

Immigrants Denied Miranda-like Warnings

“Until an alien who is arrested without a warrant is placed in formal proceedings by the filing of a Notice to Appear (Form I-862), the regulation at 8 C.F.R. § 287.3(c) (2011) does not require immigration officers to advise the alien that he or she has a right to counsel and that any statements made during interrogation can subsequently be used against the alien.” 

On August 11, 2011, the Board of Immigration Appeals (BIA) ruled that immigrants who are arrested without a warrant do not need to be read Miranda-like warnings.  Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011).  The American Immigration Counsel, joined by American Immigration Lawyers Association, the National Immigration Law Center, and others filed an amicus brief on April 20, 2012 with the U.S. Court of Appeals for the Ninth Circuit challenging the decision made by the BIA.

Under Miranda, officers must advise even noncitizens of the reason for arrest, of their right to legal counsel, and that anything they say may be used against them in subsequent proceedings.  After the BIA’s decision last August, these warnings are no longer required until questioning has ended and the charging papers are filed with the immigration court.

Melissa Crow, Director of the American Immigration Council’s Legal Action Center states:

“As a matter of law and fundamental fairness, people placed under arrest should be advised of their rights before questioning, not after. The BIA’s ruling renders the notifications virtually meaningless and will subject countless immigrants to coercive questioning by federal officers.”

*Courtesy of American Immigration Counsel Legal Action Center

China-Mainland Born and India EB-2 FY2012 Annual Limit Reached

AILA has confirmed with the State Department that the annual limit in the EB-2 category for China-mainland born and India has been reached. The State Department notified USCIS on April 11, 2012, that no further visas for those categories would be authorized. This is the “additional corrective action” that was forecast as a possibility in Section D of the May 2012 Visa Bulletin (AILA Doc. No. 12040652). USCIS will continue to accept adjustment applications based upon cut-off dates published in the April and May Visa Bulletins. However, requests from USCIS service centers and field offices for visas in the EB-2 category aliens chargeable to China-mainland born or India will be retained by DOS for authorization in FY2013, beginning on October 1, 2012.

Cite as “AILA InfoNet Doc. No. 12042360 (posted Apr. 23, 2012)”

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The Supreme Court released the SB1070 Arizona immigration law oral argument transcript. Please click here to see the transcript. The oral argument is also available via audio.

http://www.c-span.org/Events/C-SPAN-Event/10737430228/

The State Department confirmed that the annual limit in the EB-2 category (advanced degree and exceptional ability) for China-mainland born and India has been reached. The State Department notified USCIS on April 11, 2012, that no further visas for those categories would be authorized. However, USCIS will continue to accept adjustment applications based upon cut-off dates published in the April and May Visa Bulletins. Requests from USCIS service centers and field offices for visas in the EB-2 category aliens chargeable to China-mainland born or India will be retained by DOS for authorization in FY2013, beginning on October 1, 2012.

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MSA is pleased to announce that its Principal, Mona Shah, Esq. recently served as an invited guest speaker at ILW’s comprehensive EB-5- Workshop. The workshop was held at the Radisson Martinique in New York City on April 26, 2012. As a highly experienced and reputable immigration attorney in the EB-5 field, Mona focused her presentation on perfecting both the I-526 and I-829 Petitions. Ms. Shah has successfully used her expertise in filing over 180 EB-5 investor petitions with USCIS for investors from China, Vietnam, India, Dubai, the Dominican Republic, the UK, Russia, amongst other nationalities.

Mona Shah & Associates and Homeier & Law reserve and hold for their own use, all rights provided by the copyright law, including but not limited to distribution, producing copies or reproducing, sales of this document.

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On April 17, 2012 USCIS announced that the processing time for I-924 amendments for EB-5 Regional Centers has increased from four (4) months to eight (8) months.   The official announcement may be accessed at http://goo.gl/6itmC.  It should be noted that USCIS has not officially stated the reason for these delays.

What is an EB-5 Regional Center?

A Regional Center is defined as any economic entity, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment. Individuals seeking “Regional Center” designation from USCIS must submit a proposal, which is supported by economically or statistically valid forecasting tools. Investments made through regional centers are able to take advantage of the more expansive concept of job creation, which includes both “indirect” and “direct” jobs.

When are Amendments Required?

Generally, requests for an amendment to Regional Center designations may be due to any or all of the following reasons:

• To seek a preliminary determination of EB-5 compliance for documentation provided as an exemplar Form I-526, Immigrant Petition by Alien Entrepreneur prior to filing an I-526 petition
• A change of the geographic area
• A change in its organizational structure or administration
• Modifications of affiliated commercial investment opportunities (including changes in the economic analysis and underlying business plan used to estimate job creation for previously approved investment clusters)
• Changes to an affiliated commercial enterprise’s organizational structure and/or capital investment instruments or offering memoranda

Forms & Fees

I-924 amendments should be completed on Form I-924, Application for Regional Center under the Immigrant Investor Pilot Program.  It should be noted that this form is also used for initial requests for regional center designations.  The accompanying fee for this filing is $6,230.

Benefits of Investing through a Regional Center

There are numerous benefit of investing in EB-5 Regional Center programs including, but not limited to, (1) no language requirement; (2) no business or management experience requirement; (3) No quota backlogs (as is the case with many employment and family-based immigrant visa categories); (4) no sponsor requirement; and (5) investors are not required to manage their investment on a daily basis, which allows them to pursue other interests.

Regional Center Approval

The approval of a regional center means USCIS recognizes the economic entity as a designated participant in the EB-5 Pilot Program.  Typically, this means that USCIS finds the econometric models and business plans submitted as feasible and credible and that the requisite number of jobs should be directly or indirectly created through an investment in the approved industry category.

Always Conduct Due Diligence

It is very important to note that Regional Center designation does not necessarily mean that its investment projects are backed or guaranteed by the government.  Moreover, such a designation does not guarantee that an investor will ultimately receive lawful permanent residence to the U.S.  If USCIS determines that insufficient jobs have been created or an investor’s money was not placed “at risk”, the I-526 petition may be denied.  Therefore, investors should always conduct due diligence before making any decisions regarding EB-5 investments.  It is often very useful to request the assist of competent and experienced attorneys in the EB-5 field as well as securities attorneys who are aware of the interconnection between EB-5 law and SEC rules and regulations.

Concluding Remarks

MSA will continue to keep our readers apprised of any changes in the processing times of I-924 Amendments (and initial applications) as they become available.

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This case is receiving attention after being flagged as a “high profile” case with the Supreme Court.  William Green, the president of Americans for Legal Immigration stated that “no one who has shown this guy’s level of contempt for American law should be practicing.”  And Fitton, stating the obvious that Jose is not legally able to work in the U.S., thinks it’s absurd to give him a Bar card.  But is it?  Others believe, such as his attorney and former law professor Sandy D’Alemberte, think it “unfair to deny him the credentials he’s earned.”  On top of that, there is nothing in the rules require an applicant to prove their status, although it has been required by the Florida Board.

Overall, I must say I like how Jose describes himself –“undocumented, unapologetic, and unafraid.”  Why should he be held back from accomplishing his dreams when he only came to the U.S. as a child?  Let’s hope the DREAM Act passes and Jose is able to continue as a role model to other young, aspiring individuals.

~ Rebecca S. Singh, Esq.

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As predicted for May, the India and China EB-2 priority dates will retrogress dramatically, from May 1, 2010, to August 15, 2007. Priority dates for those countries are not expected to advance again until October 1, 2012, at the earliest, when the new fiscal year begins.

If an I-485 application for adjustment of status was filed while the person’s priority date was current, it will remain pending until the priority date is current again. Because the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, while the priority date is retrogressed.