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EB-5 Green Card, Ethics and Trump

5/22/2017

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by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

The EB-5 green card program for foreign investors is very much in the news due to its connection with President Trump!

A series of news reports have highlighted the Kushner family’s attempt to raise funds through the EB-5 green card program from Chinese investors by suggesting Trump’s connection to one of its real estate projects through his son in law, Jared Kushner. Qiaowai  is a Chinese agency that acts as an intermediary between Chinese EB-5 investors and EB-5 projects, including the Kushner EB-5 project called One Journal Square in Jersey City. Qiaowai has touted this project’s close links to President Trump.  When Qiaowai did a road show in China recently, Nicole Kushner Meyer, Jared Kushner’s sister, was promoted as the event’s “heavyweight honored guest”.  According to the New York Times, Ms. Meyer told prospective investors that the Journal Square development project “means a lot to me and my entire family,” and that her brother served as chief executive of Kushner Companies before leaving the company to work for the president. Qiaowai’s founder, Ding Ying, has boasted about being close to Trump. Its website stated, “The fact that Ms. Ding has once again been invited to attend a presidential inauguration shows that the U.S. Congress values and approves of the Qiaowai group.” The US Immigration Fund, is the Regional Center promoting this project in the United States.

This close connection between an EB-5 project, the foreign migration agency, the Regional Center and Trump has resulted in a barrage of criticism as it once again brings up the specter of conflicts of interest. There has already been widespread concern about Trump’s businesses violating the Emolument Clause of the Constitution. At the same time, there has been scant commentary on the dilemma that such conflicts involving Trump and his family members pose for the immigration lawyer who represent EB-5 investors. Must the immigration lawyer, when providing a list of viable EB-5 projects that have resulted in green cards for the investor, now also recommend projects of the Kushner family because of their close proximity to President Trump? While an immigration lawyer should not be acting as an investment advisor, unless licensed, an immigration lawyer may still conduct “immigration due diligence” on behalf of the client. The immigration due diligence assesses the viability of the project, not with regard to whether it will deliver a rate of return, but from the perspective of whether the investor has a reasonable chance of getting the green card. Such diligence includes evaluating the past I-526 approvals through the project and whether the project will create the requisite 10 indirect jobs per investor to satisfy the EB-5 statutory requirement. It also includes whether the project is in a targeted area that qualifies for the $500,000 investment, whether the investment capital is at risk, the investor’s place in the queue regarding job allocations and a host of other considerations that are unrelated to investment advice. Conducting such immigration diligence is part of the immigration attorney’s ethical obligation to be competent under ABA Model Rule 1.1, which provides:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
The immigration lawyer must also consider other ethical rules, besides the duty of competence, when representing EB-5 investors:

Rule 1.2 addresses the scope of representation and the allocation of decision-making authority. According to this allocation, the client establishes the objectives, and the lawyer controls the means to pursue them.

Rule 1.4 on communication overlaps with 1.2: “A lawyer shall explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation.”

Rule 1.0 defines informed consent: “The agreement by a person to the proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Rule 1.3 on diligence emphasizes the lawyer’s commitment to the client. “A lawyer shall act with reasonable diligence and promptness in representing a client.” The first comment to Rule 1.3 expands on this statement. “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”

As part of the lawyer’s competent representation and other ethical considerations on behalf of a prospective EB-5 investor client, must the ethical lawyer factor into consideration the EB-5 project run by the Kushner company due to its close relationship to President Trump? This is especially true when an intermediary such as a foreign migration agency in China has enticed the client to invest in a project that is close to the president. The lawyer may need to consider whether there is a likelihood of such an EB-5 project being treated more favorably, for example, by receiving less scrutiny with respect to its job creation plan, thus increasing the chances of a green card for the client? Hopefully, the answer should be “No,” but in the age of Trump, expectations have been defied and turned upside down many times over. In the not too distant past, then USCIS Director Mayorkas was investigated for appearing to show favoritism for EB-5 projects that had connections to Hillary Clinton’s brother and Senator Reid. Although Director Mayorkas did not face any sanction at the conclusion of the investigation, in an ideal world, an EB-5 project’s connection to Trump or his family ought not to matter. Both the financial advisor and immigration attorney should independently evaluate the project without regard to any political connections. By the same token, even the USCIS should independently evaluate the project, without regard to whether it is connected to a close family member of the president. It is also worth noting that the success or failure of an EB-5 application depends, not so much on the project, but on whether the investor can demonstrate the source of funds. In other words, is the investor able to demonstrate he or she was the owner of the funds from the very beginning? If the investor cannot demonstrate that he owned the funds, as opposed to an uncle depositing the money in the investor’s bank account, the EB-5 application will fail regardless of the strength of the EB-5 project. Therefore, the immigration lawyer can ethically advise that the success or failure of an investor’s EB-5 application may have nothing to do with how connected it is to the president.

Still, Flaubert said, “There is no truth. There is only perception.” If an investor hears that someone who invested in an EB-5 project connected to the Trump name got approved before she did in another EB-5 project, there will always be this lingering doubt in the mind of that investor. While Trump and his family members may yet be unaffected by their conflicts of interest, immigration attorneys have been left scratching their heads when representing EB-5 investors whether to ask clients to consider EB-5 projects close to Trump. Of course, while we are all witnessing a breathtaking compromise of ethics at the presidential level, it still behooves a lawyer to comply with the ethical rules when representing EB-5 investor clients. It is quite often the case that a foreign migration agent in China, such as Qiaowai, will hire the immigration lawyer to prepare and file EB-5 applications on behalf of its clients. Foreign migration agents play a crucial role in assisting the investor in assembling the documentation to demonstrate lawful source of funds, assisting in communications and translations and monitoring the statuses of all processes and filings of the investor. Still, as New York State Bar Ethics Opinion 1116 recently stated, it is imperative that the lawyer maintain her independence from the migration agent and that the lawyer’s judgment not be compromised. Therefore, if the migration agent has steered the investor into an EB-5 project with a close connection to Trump, it is incumbent on the lawyer to still maintain professional independence and to ensure that the lawyer’s judgment has not been compromised. The lawyer may wish to advise the client that the foreign migration agencies’ claims may be mere puffery.  If the lawyer accepts referrals from a foreign migration agent knowing that the investment selected by the agent will not be in the client’s best interest, the lawyer may be conflicted and must get informed consent from the EB-5 client under Rule 1.7(b). The client must acknowledge that the lawyer has a relationship with a foreign migration agent who may be steering the client to a project that may ultimately not be in the client’s best interest. Under no circumstances may a lawyer pay a referral fee to the foreign migration agent. If the foreign migration agent insists that the referral fee is for payment for expenses for services it provides, those services and expenses have to be identified and disclosed to the EB-5 investor client and should not cost more than services that could be found elsewhere.

Trump can remain in office for four years, and if he wins reelection, for a maximum of eight years, unless he is impeached before that! While Trump and his family members may disregard conflicts of interest and the truth, a lawyer cannot and should not follow suit. The lawyer must stay within the ethical rules – which includes not lying, not being compromised by conflicts and being competent – in order to outlast Trump by many decades.
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All Checks but No Balances — The Systemic Failure to Protect EB-5 Investors

6/24/2016

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by Angelo Paparelli, Past ABIL President
Nation of Immigrators
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Several widely-publicized actions by the Securities Exchange Commission (SEC), and the inevitable litigation that has piled on in consequence, have pressure-tested the EB-5 ecosystem and found it defective. Simply stated, the system too likely and too often fails.  Sadly, many EB-5 investors, after writing half-million-dollar or greater checks, ultimately have learned that no balances remain in their capital accounts and no green cards land or stay in their own and their family’s wallets.

Stripped of cash and cards, an unacceptable number of EB-5 investors find out that they have been fleeced. This calamity is not necessarily attributable to the ever-present moral hazard of failing to thoroughly investigate a proposed investment, and imprudently placing at-risk funds into an unsound business opportunity.  Rather, the flaw lies in structural and process failures of misfeasant government officials and market participants to take care that EB-5 investors are adequately protected from errant or  unscrupulous promoters, developers, regional-center principals and migration agents, and from sundry Ponzi schemers, garden-variety fraudsters and sophisticated con artists.

No EB-5 stakeholders and the ecosystem itself cannot continue to thrive if too many investors are defrauded of money and the promised permanent residency.   Clearly, a  healthy, sustainable EB-5 ecosystem cannot endure without meaningful investor protections and reliable safeguards that promote real job creation.

Why is this happening?

Culprit number one — thoughtless lawmakers.  The successive Congresses that crafted and amended the EB-5 program surely must have known that some degree of fraud, waste, and abuse are the inevitable byproducts of all government programs. Yet, lawmakers never included investor protections in the enabling EB-5 legislation. Even more appalling, our legislators should have foreseen that foreign investors, many of whom lack rudimentary English fluency or business savvy, would at once be dazzled by the allure of a green card and likely unaware of the risk that the U.S. government’s own EB-5 program would be unsafe.

The Immigration Act of 1990, the law that ushered in the EB-5 program, and follow-on amendments, never authorized federal immigration administrators to debar from program participation blatantly out-of-compliance regional centers, developers, hucksters and their co-conspirators, or to protect investors from the harsh consequences of clearly foreseeable fraud and financial crimes.  On the contrary, Congress knew from the outset that some deals will likely go south because scoundrels might hoodwink investors, or because other investments involve business plans with little likelihood of actual success.

Nonetheless, from inception, the law has provided that conditional residency would end and EB-5 investors brought before immigration judges in deportation proceedings if investments were not sustained — something that’s hard to do if one has been swindled — or the requisite jobs were not created.

Congress should also have known that securities law enforcers and immigration administrators would probably not quickly uncover the shenanigans hiding in some unregistered investments whose job-creating worthiness — by legislative design — would only be determined some two years hence.

Regrettably, Congress never provided for a real-time, on-the-scene watchdog to protect investors’ interests and make sure that promised actions supposedly leading to job creation for U.S. workers would actually happen.

Culprit number two — unaware and insensitive bureaucrats.  As the SEC has acknowledged, it arrived several years late to the EB-5 program, having been oblivious for too many years to the Commission’s established statutory duty to protect investors in all securities transactions, including EB-5 deals. While SEC enforcement of EB-5 investments has fortunately intensified in the last few years and months, the Commission most often will likely play only an ex post facto enforcement role in punishing wrongdoers and trying to make investors whole once a deal has already failed or investors have been hurt, unless a whistleblower or grieving investor surfaces sooner.

So too have immigration administrators been derelict.  Regulations of the legacy agency, the Immigration and Naturalization Service (INS), and the current Department of Homeland Security immigration components — U.S. Immigration & Customs Enforcement (ICE)  and U.S. Citizenship and Immigration Services (USCIS) — offer defrauded investors no relief or even the possibility that discretion might be favorably exercised.  To be sure, USCIS has tasked its Fraud Detection and National Security Directorate to make unannounced site visits to projects and regional centers and called for investor interviews when the issue of removing conditions on residency are to be ultimately adjudicated.  These actions, however, have yet to occur in great numbers, may not be efficacious, or may just be too little too late.

Culprit number three — EB-5 market participants.  The construction, lending and escrow industries — sectors especially active in EB-5 projects —  have long been accustomed to the salutary, sentinel effect of meaningful oversight.  Money doesn’t move from one contracting party to another unless predetermined and mutually agreed conditions are satisfied.  The ever-present risk that funds or assets will be stolen, lost or wasted, or that desired outcomes might not be achieved, can be eliminated or mitigated if a real-time watchdog monitors contract compliance and fulfillment.  The same safeguard could readily be applied for the protection of EB-5 investors and the assurance of job creation — but until now EB-5 market players seemed not to care.  Instead, conflicts of interests continue to abound in the EB-5 industry and wrongdoers still go undetected until it’s too late.

What’s to be done?

All three culprits can expiate their sins if they act together or at least separately to introduce a new participant in the EB-5 ecosystem — the independent fiduciary — a person or firm that would represent the interests of investors in trying to assure the ultimate return of principal, the maximization of profits (once job creation at the requisite level has been confirmed by USCIS), and the ultimate prize — unconditional permanent residence.

An independent fiduciary would act much like a bank officer who decides whether agreed conditions have been satisfied before releasing progress payments of loan proceeds.  The investors’ independent fiduciary could also perform:
  • an auditing function to confirm that required business and accounting records are maintained, and only permissible expenditures are paid,
  • corporate secretary/treasurer functions to make timely disclosures to investors of financial activities, monitor fund administration and job creation/hiring, give notice of the time, date and methodology for investors to vote on corporate matters, and report any significant developments or material changes to the business plan,
  • a watchdog function to confirm that insurance underwriter conditions are fulfilled and required permits and licenses are maintained; and
  • an education and information function to explain to investors the role and activities of the independent fiduciary, and formally confirm to government officials how EB-5 program requirements are met when and as they are due.

Other loss mitigation safeguards could also be established.  These include (a) the expanded availability and acquisition of EB-5 insurance to pay a form of indemnity (the return of the investment) if investor petitions are not approved or conditions on residence are not removed, (b) the addition of other traditional forms of insurance protection (e.g., fidelity bonds, and coverage for errors and omissions, business interruption, directors and officers liability and general liability), and (c) the use of standby letters of credit.

Without eliminating moral hazard, Congress could provide in the forthcoming integrity measures that a regional center’s or project developer’s engagement of an independent fiduciary, purchase of particular types of insurance, and/or arrangement for a standby letter of credit would serve as a good-faith prohibition against the denial or loss of lawful permanent resident status in cases where the SEC, ICE or USCIS determines that EB-5 investors have been defrauded.

USCIS could add similar protections in its (reportedly) soon-to-be-published EB-5 regulations.  The agency could also specify by regulation or policy memorandum circumstances where the exercise of prosecutorial discretion should be exercised and of the full range of its parole authority and employment authorization are granted to defrauded but otherwise admissible EB-5 investors.

Market players should also have “skin in the game” of protecting EB-5 investors.  They should require the engagement of independent fiduciaries and procurement of appropriate insurance coverages or letters of credit that reduce but do not eliminate all investment risk so that USCIS’s at-risk capital requirements are nonetheless satisfied.  Market participants should also recognize that risk reduction will add costs but likely generate overriding cost savings that will redound to the benefit of primary lenders, project developers and regional centers while also attracting migration agents, investment advisors and the EB-5 investors themselves.  Ultimately and ideally, only deals with fiduciary and insurance protections will be marketable.
* * *
Checks and balances — the brainchildren of the Founding Fathers — established our constitutional form of government that has endured for centuries.  One of these features is the protection of minorities against majority power.  So too will a new system of checks and balances protect vulnerable EB-5 investors likely reduce the prospect that investors will write very sizable checks but yield no balances in their capital accounts or place green cards in their wallets.
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Eyes off the Prize: White House Oblivious to Immigration Bureaucrats' Running Out the Clocks

6/7/2015

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by Angelo Paparelli, Past ABIL President
Nation of Immigrators
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Two hundred days ago President Obama stoked the hopes of immigration advocates with his announcement of wide-ranging executive actions to try — as far as his authority would carry him — to change America’s broken immigration system for the better. Generating most of the media fanfare and Republican outrage were his plans to expand eligibility for the DACA program and create a new DAPA program for the undocumented parents of citizens and green card holders. Expanded DACA and the new DAPA programs now seem dead on arrival unless the Fifth Circuit or the Supreme Court lifts an injunction by a federal judge in Texas.  Time will tell whether the President has developed (as the New York Times editors urge) a Plan C, which may or may not end the detention of immigrant families and children, or lead to the publication of proposed regulations allowing notice and comment on expanded DACA and the new DAPA programs, as the Center for Human Rights and Constitutional Law has proposed.

On the legal immigration front, last November the President also offered hope, and he promised change  — but so far hopes have been dashed, and the only change observed has been of the chump variety. What has become of his November 21, 2014 Presidential Memorandum (“Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century“) which instructed the Secretaries of Homeland Security and State to report back to him by March 15, 2015 on recommendations to improve the legal immigration system?  So far, certainly not the publication of the required report, and beyond that almost nothing else.

Immigration stakeholders heard the President proclaim at the March 23, 2015 SelectUSA Investment Summit that the new L-1B guidance memo on specialized knowledge would “[allow] corporations to temporarily move workers from a foreign office to a U.S. office in a faster, simpler way [that] could benefit hundreds of thousands of nonimmigrant workers and their employers.” Yet the L-1B guidance — long in gestation and butt ugly at birth — will only provide bureaucrats with more grounds to issue burdensome requests for evidence and ultimately say “no” in additional ways.

More inflated Obama Administration rhetoric spewed forth on April 15, 2015.   That’s when the State Department’s Catherine A. Novelli, Under Secretary for Economic Growth, Energy, and the Environment, at a conference on “Deepening the U.S.-India Commercial Partnership” — with tongue firmly in cheek — proclaimed:
Indian companies are world class and strong, and do not need government protection from outside competition. . . . Indian-owned companies have invested over $11 billion in the U.S. and employ over 44,000 people here. These Indian companies have proven their ability to thrive in the United States, one of the most competitive markets in the world. . . .

The United States and India each have strong comparative advantages that become stronger when we work together. The United States and India have shared values and a shared commitment to democracy. Together, we are partners in upholding an international, rules-based order that ensures global peace, security, and prosperity. We want to seize this moment and bring to fruition the unrealized potential that still exists between our economies, for the betterment of the lives of both our citizens.
Since her speech, proponents of employment-based immigration reforms have seen what the Obama Administration apparently means when it proposes to uphold “an international, rules-based order that ensures global . . . prosperity.” The actions of the Administration’s immigration bureaucrats have recently offered their version of “rules-based” order — actions which hurt U.S. and Indian companies alike, to wit:
  • The release of the poorly reasoned precedent decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO, Apr. 9, 2015), which witnessed the USCIS Administrative Appeals Office’s foray into foreign turf, viz., the Labor Department’s H-1B regulations, to require that employers file amended petitions with USCIS each time an H-1B worker moves to a worksite located in a different metropolitan area. The AAO took this action even though it acknowledged that prior USCIS guidance distributed widely through an immigration stakeholder association expressly stated that no new filings would be necessary.
  • The USCIS pronouncement on May 21, transformed into a draft on May 27, that Simeio Solutions would be applied retroactively, even though precedent decisions by regulation, 8 CFR § 103.3(c)(“Service precedent decisions”), provide “for publication as precedent in future proceedings . . . (emphasis added).”  With these May 21-May 27 actions, USCIS offered to grant an amnesty against the taking of “adverse action” against H-1B employers and workers for prior worksite changes, as long as amended petitions are filed by August 19, even though USCIS has not stated how far back in time its retroactive application of Simeio Solutions would go — an announcement sure to upend the summer vacation plans of company HR personnel and their immigration counsel.
  • On the heels of its retroactive application of Simeio Solutions, USCIS in a further surprise announced the suspension on May 26 of expedited adjudication of H-1B petitions under the USCIS Premium Processing Service purportedly because of the wholly foreseeable increase in applications for H-4 spousal work permits — a workflow the agency had been planning since May, 2014.
  • The AAO’s recent release under the Freedom of Information Act of a 41-page non-precedent decision holding on a variety of newly articulated but nonetheless spurious theories that the position of management analyst is not an H-1B specialty occupation and the proposed H-1B beneficiary is not qualified serve in the proffered position. Immigration observers ask why the AAO would take 41 pages to deny H-1B eligibility in a non-precedent case. The probable answer is that it wanted to float new grounds for USCIS adjudicators to use as a script, much like the non-precedent 2008 L-1B GST case, with which to deny ever more H-1B petitions.
  • The failure of the USCIS EB-5 Immigrant Investor Program Office (IPO) over several months, despite repeated requests, to offer clarifying guidance on whether and under what circumstances the redeployment of EB-5 investor capital may be allowed under the regional center program where projects have long ago been completed, the requisite jobs have been created, but investor petitions seeking removal of conditions on residency cannot be filed or approved because immigrant visa retrogression affecting huge numbers of Mainland-China born investors delayed the initial grant of conditional residency.  Equally or perhaps even more egregious is the IPO’s reversal of prior interpretations and its current interpretation that when a prospective EB-5 investor takes out a loan and uses those funds as a cash investment into an EB-5 project is treated a prohibited contribution of debt rather than an investment of capital.  Apparently, cash is king in the investment world, except in the never-never-land of USCIS’s EB-5 IPO.
Meantime, as President Obama makes plans for his presidential library, he apparently seems focused not at all, or to put it charitably, not enough, on the passive-aggressive actions of immigration bureaucrats who seem to be playing out the clock in the apparent hope that his presidency will end before these laudable initiatives ever are allowed to occur:
Modernize, improve and clarify immigrant and nonimmigrant visa programs to grow our economy and create jobs
Who
  • U.S. businesses, foreign investors, researchers, inventors and skilled foreign workers.
What
USCIS will:
  • Work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.
  • Work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.
  • Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.
  • Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.
  • Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who:
    • Have been awarded substantial U.S. investor financing; or
    • Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.
  • Work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law.
When
  • Upon issuing necessary guidance and regulations.
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Immigration on a Clean Slate: Game Changing Proposals on Visa Modernization

2/9/2015

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by Angelo Paparelli, Past ABIL President
Nation of Immigrators
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Terabytes of text have already been generated in the course of extolling or excoriating President Obama for his November 20 Executive Actions on Immigration.  The prolific foaming of bloviating mouths has mostly been prompted by the promise of deferred action and work permits for undocumented immigrants under the DACA and DAPA programs.  Surprisingly, however, his equally profound measures to improve the legal immigration system have been lost in the GOP’s ongoing Sturm und Drang over what they dub “Executive Amnesty.” Among these legal immigration reforms, an almost overlooked November 21, 2014 Presidential Memorandum (“Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century“) invited the submission of individual and stakeholder recommendations to improve legal immigration.  If the Obama Administration were to embrace the best of the recommendations submitted in response, many good things would flow from this crowd-sourcing initiative.  Without involving or seeking the consent of Congress, the Administration could readily adopt a plethora of path-breaking innovations to our legal immigration system which would profoundly improve how this country welcomes and benefits from foreign strivers, entrepreneurs, scientists, students, investors and other worthy contributors.

As my colleagues, Gary Endelman and Cyrus Mehta put it recently:
At the end of the day, immigration policy is not only, or even primarily, about the immigrants but about how the United States can attract and retain the best and the brightest regardless of nationality who wish to join us in writing the next chapter of our ongoing national story. There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done.
The November 14 memorandum directed the Secretaries of Homeland Security and State to solicit proposals from stakeholders and the public to modernize the legal immigration and visa system.  The Secretaries of DHS and DOS would then evaluate the proposals so submitted in consultation with  several Cabinet members (the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education), and other federal officials (the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, and the Director of the Office of Science and Technology Policy).  The official invitation to submit ideas took the form of a December 30 Notice of Request for Information, which allowed the submission of up to 30 pages of commentary by January 29.  The comment period has closed, and the proposals are now posted online for all to see.

Some of the most thoughtful suggestions, accompanied in many cases by convincing citation to legal authority, came from members of the Alliance of Business Immigration Lawyers (ABIL); members of the American Immigration Lawyers Association (AILA); a collection of 16 business-immigration stakeholder organizations (the 16); two individuals, attorney Nicole Kersey of Kersey Immigration Compliance (KIC), and Don Crocetti, managing member of Immigration Integrity Group, LLC (IIG) who formerly served as Chief of the Fraud Detection and Nationality Security Directorate (FDNS) of U.S. Citizenship and Immigration Services (USCIS); the American Immigration Council (the Council); the Society for Human Resource Management through its strategic affiliate, the Council for Global Immigration (CFGI);  the U.S. Chamber of Commerce (the Chamber); the International Medical Graduate Taskforce (IMGT); the Center for American Progress (CAP) and the Global Workers Justice Alliance (GWJA).

Here are just a few of the many recommendations (accessible through the hyperlinks in the preceding paragraph) which I believe would comprehensively transform and improve America’s decrepit immigration system:

Improve access to justice. ABIL, AILA and the Council urged the Department of State (DOS or State) and U.S. Customs & Border Protection (CBP) to grant every individual interviewed by a federal immigration official the right to the representation of an attorney (either  in person or by electronic means, but still at no cost to the government).  The right to counsel would extend to (a) visa applicants who are interviewed by a consular officer, (b) applicants seeking admission to the U.S. during secondary or deferred inspection who are interviewed by a CBP officer, and (c) petitioners seeking immigration benefits who are interviewed in the course of FDNS site visits by USCIS investigators.  ABIL also urged State and DHS to create a pilot system of binding review of decisions by consular officers to refuse certain categories of visas (all immigrant visas and nonimmigrant refusals under the E-1 treaty trader, E-2 treaty investor, E-3 Australian specialty occupation worker, H-1B specialty occupation, L-1 intracompany transferee and O-1 extraordinary ability visa categories).

Develop a single body of “immigration common law” and revitalize the advisory opinion process. ABIL proposed the creation of a single administrative tribunal to hear  appeals from decisions and adjudications by all federal immigration agencies, thereby consolidating the work of multiple federal appellate panels and reducing the  complexity and inconsistency of precedent and non-precedent immigration law decisions.  ABIL also proposed that State publish all of its now-secret Advisory Opinions which guide consular officers in visa determinations and that USCIS adopt a published IRS-style private letter ruling process whereby the party seeking written guidance on the legal consequences of a particular set of facts would receive a binding interpretation but other stakeholders might benefit from the agency’s non-binding guidance in analogous circumstances.

Prohibit relitigating prior USCIS decisions granting employment-based immigration benefits.  The 16, the Chamber, AILA and CFGI proposed that USCIS give “binding deference” to the agency’s previous grants of employment authorization whenever a petition seeking extension of the employer’s petition and of the worker’s nonimmigrant status involves the same employer, same employee, and same job duties, unless an adjudicator can establish, and articulate with specificity, fraud or clear gross error.  Such a change would necessarily reduce the burdensome and frequent requests for additional evidence (RFEs) and introduce a welcome measure of reliability, consistency and predictability to the process of extending the work permission of nonimmigrant employees.  To make this change, USCIS would need to adopt IIG’s proposal to speedily transition away from its “antiquated paper environment, supported primarily by legacy INS [Immigration and Naturalization Service] mainframe systems and databases with little to no interface or advance search or analytics capabilities” and instead it must “automate” “all USCIS systems and filing processes”.

Hasten the issuance of work visas, immigrant visas, green cards, work authorization and international travel permission.  Many commenters (including ABIL, AILA, CFGI and the 16) proposed that State and USCIS adopt a range of proposals which, in various ways, would (a) count only the principal worker and not the dependents when reporting and applying the cutoff date on available immigrant visas as announced in State’s Visa Bulletin, (b) recapture the hundreds of thousands of immigrant visas from prior years that were unused and thus squandered because of inadequacies in the way green-card quotas were allocated between DOS and USCIS, (c) allow for much earlier acceptance of employment-based applications for adjustment of status, thereby hastening the issuance of Employment Authorization Documents (EADs) and Advance Parole travel authorization, and (d) plug gaps in the grant of employment authorization by extending it for longer periods or on an interim basis to more categories, e.g., persons in U visa status, applicants for renewal of EADs, and persons holding employment-based work-visa status in nonimmigrant categories omitted by the 240-day period of interim employment authorization allowed in the Form I-9 (Employment Eligibility Verification) regulations. GWJA also urged that USCIS, upon approving an immigrant visa petition, automatically forward the notice of appearance (Form G-28) to State’s National Visa Center so that prolonged delays now experienced in the recognition of attorney representation would be eliminated.

Clarify and liberalize the rules on immigration successorship in interest. ABIL proposed that DHS and DOS adopt a successor in interest principle that would (a) expand the range of situations in which corporate restructurings are recognized for immigration purposes, thereby allowing uninterrupted employment authorization and the preservation of pipeline employment-based immigrant visa and adjustment of status benefits, and (b) dispense with current USCIS interpretations whereby immigration successorship requires an “assumption of all or some liabilities, whether they be solely immigration-related liabilities or liabilities associated with the occupational classifications of the particular beneficiaries affected by the change in corporate circumstances.”

Adopt improvements to promote investment, entrepreneurship, job creation and business innovation.  Many of the commenters suggested changes to spur investments, business activity, innovation and job creation.  CFGI proposed the creation of a “Robust Trusted Employer Program” which would allow faster and more streamlined approvals of requests for immigration benefits submitted by “any employer that can demonstrate a track record of compliance with applicable [immigration] laws.”  ABIL urged the Obama Administration to “create an agency to support and protect the economic benefits of immigration within the Department of Commerce or another cabinet department.”  AILA and ABIL proposed that DHS “create explicit immigration protections and benefits for small businesses,” e.g., by (a) rescinding the Neufeld Memorandum (which effectively abolished the distinction, long recognized in precedent decisions that, for immigration purposes, a corporation is to be considered distinct from its owners), (b) clarifying that the customary attributes of start-ups and small businesses are not necessarily indicia of fraud, and (c) adopting in formal policy guidance and ultimately in regulations the formal recognition that the characteristics of start-ups as set forth in USCIS’s Entrepreneur in Residence training materials are acceptable examples of legitimate forms of business operations and activities. ABIL and AILA also proposed numerous improvements that should be implemented by USCIS’s EB-5 Immigrant Investment Program Office (IPO) in order to promote the IPO’s announced goals of enhanced transparency of eligibility criteria, speedier case processing and the safeguarding of EB-5 program integrity.

Enhance immigrant and nonimmigrant protections and promote immigration integrity. A number of commenters suggested that DHS and DOS should ease eligibility requirements or offer enhanced benefits to individuals seeking or holding a particular visa status.  IMGT offered a range of suggestions to improve the lot of foreign medical graduates (FMGs) including, among other proposals, H-1B cap gap relief for FMGs, clarification that J-2 dependents of  FMGs are not subject to the two-year, home-country, physical-presence requirement applicable to J-1 FMGs, and clearer and more expansive interpretations of (a) “affiliated or related” parties eligible for exemption from the annual H-1B quota, and (b) requirements for the physician national interest waiver. GWJA also suggested several improvements, including, for example, enhanced protections available to individuals who have applied for or hold U visa status, job “portability” benefits for H-2B workers, greater age-out protections for dependents in VAWA cases, and an obligation undertaken by DOS to provide more explicit statements of the actual grounds for a visa refusal and not merely uninformative citation to the general ineligibility ground of denial found at Immigration and Nationality Act (INA) § 214(b). CAP urged DHS and DOS to improve transparency and reporting of data on LGBT individuals who seek or hold refugee admission or asylum status. Don Crocetti of IIG suggested that USCIS automate immigration case processing and build “a person and organization centric data system complete with electronic filing and web-based interviews” — a system which “contains advanced and ‘Big Data’ analytics to support a proactive anti-fraud operation.”

Freeze I-9 and worksite enforcement until USCIS has decided all DACA/DAPA applications for work permission. Nicole Kersey of KIC, along with ABIL, proposed that the DHS Secretary cause U. S. Immigration and Customs Enforcement (ICE) to suspend and defer, on a temporary basis, worksite investigations and enforcement of certain employer-sanctions provisions of the Immigration Reform and Control Act (relating to the maintenance of Forms I-9 and the duty of employers to refrain from knowingly hiring or continuing to employ unauthorized workers).  The temporary freeze would end, they proposed, once USCIS certifies that it has decided all applications for work permission under the DACA and DAPA program.  The purpose of the proposed deferral of ICE enforcement, Ms. Kersey and ABIL explained, would be to avoid actions that might undermine the President’s goals of maintaining family unity in mixed-status households and encouraging eligible DACA and DAPA applicants to “get right with the law” and “come out of the shadow.”   These laudable Presidential purposes, the proponents maintained, would be jeopardized if ICE — by virtue of a worksite enforcement action — were to impose a duty on employers to fire unauthorized workers who may ultimately receive employment permission.

Improve Federal Immigration IT Infrastructure.  AILA suggested several IT enhancements, including USCIS acceptance of online payment of filing fees, standardization of web-published protocols and response times to email queries submitted to consular officers at posts worldwide, and permitting additional functionality in the “myUSCIS” Case Status Online query system by allowing access to the actual RFE or notices of intent to revoke or deny a petition issued rather than merely viewing a report that an RFE or notice has been issued (which must then await delivery by snail mail).  In addition, ABIL and AILA suggested that — in the words of the AILA comment — “As USCIS continues to develop ELIS [the USCIS Electronic Immigration System] and expand its functionality to other forms and uses, it would be in the agency’s best interest to reach out to vendors and large-scale users, including AILA, for regular usability testing and feedback.”  ABIL proposed a variety of additional IT suggestions:

  1. DHS (USCIS and CBP) DOL (the Office of Foreign Labor Certification (OFLC)) and DOS (the Bureau of Consular Affairs [BCA]) should work to achieve interoperability for users so that employers, petitioners and applicants for immigration benefits, lawyers, law firms and organizational stakeholders such as universities need not be forced to re-enter the same data into disparate, siloed systems;
  2. All possible questions in online forms that function as a database, such as the BCA’s DS-160, where distinct questions appear as determined based on earlier answers to prior questions, should be published and available in full with a cross-referencing of questions and answers by visa category so that the public, as contemplated by the Paperwork Reduction Act, can know in advance what information to assemble.
  3. All electronic forms should provide the opportunity to expand on or clarify an answer to any question on the form in data fields permitting unlimited entry of text, since many questions cannot be answered truthfully and fully with, for example, a simple “yes” or “no” reply. Many such questions require the application of fact to law and thus require an answer that is consistent with applicable law. As currently configured, these forms invite a later accusation by federal immigration authorities of, inter alia, a willful, material misrepresentation under INA § 212(a)(6)(C), a falsely made document under INA § 274C(f), or a false statement under 18 U.S.C. § 1001;
  4. The attorney for an employer (with authorization of the subject individual employee or family member) should be allowed to access and download the electronic I-94. As the CBP e-I-94 system now is configured, only the applicant for admission who is ultimately admitted, or his or her attorney, can access the database and retrieve the I-94. Many large corporations centralize the management of their foreign employee’s maintenance of immigration status through counsel. Without access to the e-I-94 system by corporate counsel, this process is severely impeded and the prospect of an inadvertent violation of the unlawful-presence 3- and 10-year bars could occur; and
  5. Online visa application[s] and [USCIS] immigration forms should allow the user to move from one screen to the next without completion of all relevant data requested in the screen. Often, some but not all information is not presently available. The online systems should also allow saving, downloading, and emailing partially completed forms so that information already provided need not be required to be re-entered again.
* * *
Since other commenters’ proposals were not summarized, and additional comments of the submitters identified above may have been given unintentional short shrift, I encourage all immigration stakeholders to spend as much time as possible reading the full set of comments and then, using all forms of social and traditional media, to focus public attention on the innumerable ways that DHS, DOS and the several agencies that administer federal immigration laws can optimize our nation’s legal immigration system.  It is broken; so let’s make the Administration fix it.
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Impact of EB-5 Retrogression on the Regional Center Loan Model

9/22/2014

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by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

In light of the retrogression in the employment-based fifth preference (EB-5) for China, which is predicted to occur as early as May 2015, the delays will once again impede much needed investment into the United States, which in turn will also dampen job creation. The negative effects of priority date retrogression in family and employment-based preferences have already had an adverse impact on families, who are unable to unite, and employers, who cannot employ a much needed worker even after the labor market has been unsuccessfully tested for qualified US workers. Due to retrogression, children may be less likely to be able to seek the protection of the Child Status Protection Act from aging out.

The China EB-5 retrogression will result in other unique problems not experienced in other immigrant visa preference categories. Most EB-5 regional center investments are based on a loan rather than an equity model. EB-5 investors invest into the new commercial enterprise (NCE) of a regional center. The NCE in turn invests in a project or a business, known as the job creating enterprise (JCE). The JCE is a project that will result in at least 10 indirect jobs per EB-5 investor, such as a hotel or assisted living home or some other business operation. The NCE’s investment in the JCE can either be through an equity investment or a loan. The loan model is more favored than the equity model in EB-5 projects. Although a direct loan by an EB-5 investor is disallowed, as the investment is not at risk if the loan is guaranteed to be paid back, the EB-5 investor makes an equity investment in the NCE as a limited partner, which in turn loans the investors’ aggregated funds to the JCE. Thus, the EB-5 investor still has an equity interest in the NCE, while the NCE makes a loan to the JCE. The loan model has been permitted by the USCIS as the EB-5 investor is really buying an equity interest in the NCE while the NCE makes a loan of the aggregated investors’ capital to the JCE.

When the NCE makes a loan to the JCE, there is an agreement for the JCE to pay back the loan to the NCE. If the time frame is 5 years or more, this period would cover the point of time when the investor obtains conditional residence, and two years later, when the investor applies for removal of conditional residence. With the EB-5 quota retrogression, these two events will be stretched out even further in time, and it is likely that by the time that the investor applies for removal of conditional residence, it may be beyond five years from the date of the initial adjudication of the Form I-526 application. Would the USCIS now take the position that the investment is longer at risk if the JCE pays back the loan to the NCE before the investor has removed the conditions on residence? If retrogression becomes even more severe, like the India and China EB-2 for example, the JCE may have paid the loan back at the time that the investor makes the initial application for conditional residence.

Although the USCIS has not yet addressed this issue, it can be argued that the JCE is paying back the loan to the NCE, and not to the investor, and this did not alter the investment, which was always at risk. The investor is not being paid back on a guaranteed basis, and this arrangement is distinguishable from the facts in Matter of Izummi, 22 I&N Dec. 169 (AAO, July 13, 1998). There, the investors were promised that the NCE would repurchase their interests at a fixed price after six years, and such an investment was not considered “at risk.”  Here, the JCE is paying back the loan to the NCE, and the decision to repay the investor is entirely in the discretion of the general partner of the NCE. The investor is clearly not the beneficiary of the repayment of the loan; rather it is the NCE. The NCE can use the repaid loan for other purposes rather than repay the investors.

In light of the crushing backlogs in the EB-2 and EB-3 preferences, Gary Endelman and this author have proposed various ameliorative solutions through administrative fixes, including not counting derivatives separately from the principal beneficiary, and these should apply with equal force to prospective EB-5 backlogs too. The Obama administration has been actively considered administrative fixes in the face of Congressional inaction to expand visa numbers and reform the broken immigration system, and it is urged that the administration also broadly interpret the “at risk” element of the investment so as to relieve EB-5 investors from uncertainty if the loan of the JCE is paid back to the NCE. Even if the JCE has paid back the loan to the NCE, the investor’s investment was always at risk at the time of the project’s inception, and at the time of filing the initial I-526 application. It is this point of time that ought to be considered when adjudicating EB-5 applications, in the case of potential crushing EB-5 China retrogression, and the administration has ample flexibility to maintain that the capital was “at risk” despite the JCE repaying the loan to the NCE prior to the investor either obtaining conditional residence or filing an application to remove conditional residence. After all, the requirement that the capital be “at risk” is found in the regulation and not the INA at 8 CFR 204.6(j)(2), and it only applies at the point of filing the I-526 application. Moreover, in a similar context where the EB-5 financing replaces bridge financing, the jobs were created at the point of bridge financing and not when the EB-5 capital replaced bridge financing. According to the May 2013 EB-5 Policy Memo, the use of bridge financing is permitted and is given credit for purposes of job creation so long as replacement financing, even if it was not EB-5 financing,  was  contemplated. Therefore, in the context of bridge financing, the length of time when the investment remains at risk, or when the investment creates the requisite number of jobs is irrelevant. What should really count is that the investment was “at risk” at some point of time and that investment did result in job creation at some point in time, although it can be legitimately argued that the investment still remains at risk even if the loan has been repaid to the NCE and not to the investor.   Similarly, the requirement that the investment have been sustained under INA 216A(d)(1)(A)(ii) throughout the conditional residency period be broadly construed so long as the repaid loan is still in the NCE and the investor has not been repaid.

The ethical risks in representing a client have been further exacerbated by the prospect of EB-5 quota retrogression. There is also more cause for conflicts of interest if the same attorney who represents the NCE and/or project also represents the EB-5 investor, given that the repayment of the loan, which will benefit the JCE, may adversely affect the investor if the investment is no longer considered “at risk” or continue to be “sustained.” There is no prohibition under ABA Model Rule 1.7 for an attorney to take on multiple clients where there is a potential conflict of interest, if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;  the representation is not prohibited by law;  the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and  each affected client gives informed consent, confirmed in writing. The attorney representing both the investor and the NCE/JCE has to be mindful about the conditions pursuant to Rule 1.7 when undertaking or continuing the joint representation. In the event that the attorney faces an irreconcilable conflict, it may be incumbent upon the attorney from withdrawing representation of both clients. In some situations, an attorney may be able to represent one client and withdraw from the other one when the conflict was not foreseeable and was “thrust upon” the attorney. See e.g. New York City Bar Formal Opinion 2005-05. NYC Bar Op. 2005-5, which also discusses how other jurisdictions have dealt with “thrust upon” conflicts,  characterizes such a conflict  between two clients that 1) did not exist at the time either representation commenced, but arose only during the ongoing representation of both clients, where 2) the conflict was not reasonably foreseeable at the outset of the representation, 3) the conflict arose through no fault of the lawyer, and 4) the conflict is of a type that is capable of being waived. NYC Bar Op. 200505 further requires the lawyer to apply a balancing test in deciding whether to withdraw from the representation of one client and continue representation, with the other client. The opinion requires the lawyer to factor in whether there would be any prejudice that will be caused to the client due to confidences being placed at risk, and whether representation of one client over the other would give an unfair advantage to the client. A lawyer may wish to carefully use the “thrust upon” conflict doctrine if the conflict regarding the repayment of the loan was not foreseen prior to the announcement of the EB-5 quota retrogression, and the lawyer needs to decide whether to withdraw from representing both parties or one party.

Finally, the immigration attorney when performing due diligence of an EB-5 regional center and project needs to also factor in the timing of the repayment of the loan and the delays caused by EB-5 retrogression. While most immigration attorneys should provide only immigration related due diligence rather than investment advice,  investment advice may wittingly or unwittingly be factored  into  the  general advice the attorney  may provide when assessing the viability of an EB-5 project on behalf of an investor client. While it is always advisable for an immigration attorney to limit his or her representation to immigration advice,  and refer the investment advice out to another qualified professional who is a registered investment adviser or broker dealer, Section 202(a)(11) the Investment Advisers Act of 1940 does indeed carve out an exception for attorneys, accountants, engineers and teachers so long as the investment advice provided is incidental to their profession. According to an advisory by the Stroock law firm, the factors that will be considered are whether the professional holds himself or herself out as an investment adviser, whether the advice is reasonably related to the professional services, and whether the charge for advisory services is based on the same factors that determine the professional’s usual charge.
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Waiting in the Wings:  A New Leader at the Immigration Helm

3/31/2014

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by Angelo Paparelli, Past ABIL President
Nation of Immigrators
The dysfunctional immigration world continues to spin dangerously out of control. 

Do-nothing House Republicans (and five pusillanimous Democrats) commit political seppuku with the passage of the ENFORCE Act  -- a going-nowhere bill which would authorize civil suits against the President to dissuade him from doing something to husband scarce prosecutorial resources and ameliorate the harsh consequences of deportation for noncriminal violators of immigration regulations.  As Rep. Luis Gutiérrez reminds us, prominent Republican House leaders advocated for the exercise of presidential authority and prosecutorial discretion before they turned against it -- the only difference being that this time they cannot suffer the insufferable, namely, that it be used by President Obama.

For their part, House Dems file a discharge petition seeking a vote on the Senate-passed comprehensive immigration reform bill, S. 744, while Minority Leader Nancy Pelosi admits that the votes are not there to prevail, thus making the effort look like a stunt pursued for political advantage. 

Provocateur Ann Coulter spews anti-immigration vitriol at the gathering known as CPAC, the Conservative Political Action Conference, as she attacked “MSNBC, where they are celebrating the browning of America," compared immigration reform to “rape,” claimed that immigrants would upend the Social Security and Medicare programs, and espoused vigilantism (“If you pass amnesty, that's it. It's over, and then we organize the death squads for the people who wrecked America”).

Elsewhere in the land, activists for comprehensive immigration reform fast, while undocumented immigrants are denied bar licenses in Florida, but allowed to practice law in California.

Meanwhile, a U.S. citizen child must travel to Rome for a visit with Pope Francis -- a true friend of legal immigration -- and gains the release of her dad from immigration detention. This happens just before the President and the Pope meet to discuss immigration, an act that would perhaps be more meaningful had the Obama Administration, in releasing its proposed FY 2015 budget, not reflected conflicting priorities and the malapportionment of heavier spending on immigration enforcement than on benefits and immigrant integration.

All this time, U.S. Citizenship and Immigration Services (USCIS) has continued since December to make do without a permanent leader.  Following the departure of Alejandro Mayorkas, the erstwhile and accomplished USCIS Director, appointed to serve as Deputy Secretary of Homeland Security, an acting director, career officer Lori Scialabba, has served as its interim leader and caretaker. While this beleaguered agency with a huge and hugely important mission and long-endemic problems has shown spunk and commendable results in some areas, such as public engagement, a new online "e-Request" form for simple-problem resolution, and the EB-5 immigrant-investor domain, growing problems only proliferate.

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The President's nominee as new USCIS Director, Leon Rodriguez, a seasoned federal prosecutor and Director of the Office for Civil Rights of the Department of Health and Human Services, may be recommended on April 3 in an Executive Business Meeting of the Senate Judiciary Committee. Mr. Rodriguez, whose "grandparents fled anti-Semitism and poverty in Turkey and Poland in the late teens and early 20’s to come to Cuba where [his] parents were born," only later to seek refuge from the Castro regime in the U.S., has offered tantalizing insights into how, if approved by the Senate, he might tackle the daunting job of USCIS Director, especially in reply to Sen. Grassley's queries. 

In written answers to various Senators' questions, he reaffirms his belief in the proper use of prosecutorial discretion and the need to protect internal agency whistleblowers from retaliation, agrees to meet with union representatives of USCIS employees, expresses support for recent USCIS reforms of the EB-5 program and states that in limited circumstances it is incumbent upon the USCIS Director to intervene in a pending case when the "outcome of adjudication is wrong, or when adjudication may present a legal, factual, or policy issue of broad application."

Unfortunately, the Senators' written questions to Mr. Rodriguez ignored many problems and challenges facing USCIS.

One of the most pressing is the L-1 intracompany-transferee visa category and the ever mounting rates of denials by USCIS of  employer petitions seeking L-1B “specialized-knowledge” workers.  As reported in the latest USCIS dataset (released through a Freedom of Immigration Act request by the American Immigration Lawyers Association), although as recently as FY 2006 the agency denied only 6% of L-1B petitions, rejections for lack of specialized knowledge jumped to 34% in FY 2013, after accelerating to 30% in FY 2012 – a five-fold increase in the denial rate even though the agency has not published any new regulation changing the adjudication standard. In a press release accompanying its recent report ("“L-1 Denial Rates for High Skill Foreign Nationals Continue to Increase”), the National Foundation for American Policy (NFAP) observed:
Denial rates for L-1B petitions increased in FY 2012 and FY 2013 – after U.S. Citizenship and Immigration Services officials pledged in early 2012 to develop new proposed guidance, for public review and comment, in order to update and modernize the understanding of the specialized knowledge definition. The new proposed guidance never materialized and, in the eyes of employers and their attorneys, the situation has continued to provide inconsistent decision-making and the high levels of denials and Requests for Evidence have continued in the past two years.
The NFAP also noted an alarming nationality-based trend in L-1B denials adversely affecting Indian citizens (a pattern also observed and critiqued in this blog):
Based on an NFAP examination of data for FY 2011 and earlier, it appears much of the increase in the denial rate has been focused on Indian nationals. U.S. Citizenship and Immigration Services denied more new L-1B petitions for Indians in FY 2009 (1,640) than in the previous 9 fiscal years combined (1,341 denials between FY 2000 and FY 2008). In FY 2009, the denial rate of new L-1B petitions for Indians increased to 22.5 percent even though there had been no change in the regulations. In contrast, for Canada, the UK, China and other countries the denial rate in FY 2009 ranged from 2.9 to 5.9 percent for new L-1B petitions. USCIS did not release country-specific data for FY 2012 and FY 2013 but interviews with employers and attorneys indicate the problems with receiving approvals for L-1B petitions involving Indian nationals have continued.
The agency has not offered an explanation of the deterioration in L-1B approval rates or the harsher and disfavored screening of petitions for Indian workers.  Could this be a form of "taking-the-law-into-your-own-hands" in the face of perceived loss of IT jobs by U.S. workers?  Is it an off-the-shelf government a la Oliver North?  Or, is there "a bias [because] there is a sentiment that Indians are taking away American jobs"? 

Only a permanent and reform-minded USCIS Director, ushered forcefully through the Senate, even if Democrats are forced to deploy the "Nuclear Option," would have the clout to address this disturbing trend in lawless adjudication.  Only an outsider with legal background sufficient to master the complexities of the Immigration and Nationality Act and a history of facing and overcoming entrenched bureaucratic lethargy and resistance, could fix the many daunting challenges still unaddressed at USCIS.  Let's hope that Mr. Rodriguez is just such an individual and that his nomination is swiftly approved.
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EB-5 Immigration Lawyers Wear Too Many Hats

2/10/2014

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by Angelo Paparelli, Past ABIL President
Nation of Immigrators
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The EB-5 employment-creation immigrant investor visa category continues to transcend its chutes-and-ladders early history.  This 24-year-old program -- like many young adults of the same era -- seems at last to be maturing in healthy ways.  Foreign investors have become more savvy.  Regulators are more attuned to the need for greater investor protection, as well as clear, consistently enforced rules and predictable adjudicative outcomes (including swift justice for law violators).  Seasoned dealmakers and developers, accustomed to raising substantial project capital from private equity markets, are now entering the field and bringing with them a set of industry practices that include robust law compliance as an inherent element of the fundraising business model. Yet one practice lingers.  Immigration lawyers continue to wear too many hats.  The Bible and law school teach that serving two (or more) masters is a recipe for trouble.  So why then do so many reputable immigration lawyers think they can simultaneously represent the investor, the regional center and the project developers all in the same EB-5 transaction (while possibly also receiving finder’s or consulting fees on the side for procuring investors)?

The answers are only partly governmental.

U.S. Citizenship and Immigration Services (USCIS) and the State Department perpetuate the practice by allowing only one lawyer to submit a Form G-28 (notice of entry of appearance of attorney) in any given EB-5 benefits request, whether that be the request for approval of a regional center (Form I-924), the request for amendment of a regional center designation (Form I-924A), the EB-5 investor’s petition seeking classification as a conditional permanent resident (Form I-526), the application to register permanent residence or adjust status to conditional permanent resident (Form I-485), the immigrant visa application (Form DS-230), or the investor’s petition to remove conditions on residence (Form I-829). 

This governmental practice is unhealthy and unnatural.  Most federal agencies outside of the immigration world recognize that parties with distinct legal interests to protect deserve to be heard and represented by the respective legal counsel of their choice.  The Securities and Exchange Commission, for example, would never mandate or likely countenance that an investor’s counsel represent the interests of an issuer of securities, or vice-versa. Indeed, the adversarial system of justice is founded on the principle that the truth will out and justice will best prevail when conflicts of interest are minimized and each party to a controversy exercises the right to present evidence and legal argument in support of a particular position asserted before a neutral fact-finder/judge determining the truth and applying the law.   Not so, the immigration bureaucracy.  As I’ve blogged before, the government needs to stop forcing members of the bar and the several “publics” they serve to rely on only one lawyer to carry the legal water in a single immigration case where several distinct interests hang in the balance.

But archaic immigration rules don’t really explain why EB-5 lawyers practicing immigration law too often tend to represent multiple parties. Immigration attorneys can readily serve distinct parties in an EB-5 case quite well by developing lawful work-arounds through multi-counsel collaboration agreements. Thus, the immigration attorney representing the project or the regional center, with client consent, can provide to investor’s counsel submitting the Form I-526 or Form I-829 all of the deal- or project-related documents and data needed to establish eligibility for the particular immigration benefit sought.  Moreover, investor’s counsel, likewise with client consent, can and usually does undertake to provide the immigration lawyer representing the project or the regional center with timely notice and copies of all petition filings and any USCIS request for additional evidence, notice of intention to revoke petition approval or final decisions in a particular EB-5 investor’s petition.   Similarly, immigration deal counsel or regional center counsel can and should provide the immigrant investor’s counsel with any USCIS actions or correspondence involving regional-center designation or amendment.

So why then do immigration counsel wear so many EB-5 hats?  Is it some misguided paternalism (the desire to make sure all parts of the process are controlled by a single, control-freak lawyer/strategist)?  Is it a belief that the EB-5 project and its attendant investors are best served by the perceived efficiency and cost efficacy of using only one immigration lawyer or firm?  Or is it merely bottomed on a rapacious desire to squeeze out the largest dollar value of legal fees from each and every EB-5 deal?

I disclaim any clairvoyant ability to read the hearts and minds of my colleagues and thereby discern their underlying motivation for embracing joint client representation.  Instead, my purpose in posting is merely to suggest that multi-party immigration representation in EB-5 cases is foolhardy and dangerous.

If a deal fails, if EB-5 benefits are not achieved, or if one or more EB-5 investors fail(s) to receive green cards because too few jobs are created, then -- as sure as the night follows the day  -- disappointed and disgruntled parties will engage successor counsel to point the finger of blame at whomsoever has pockets that seem deep enough to pay amends and thereby effectuate some form of retributive economic justice. (For more on this topic, check out an article co-authored by securities lawyers, Gregory L. White and Mark Katzoff, and me, "Hot Topics in EB-5 Financings," published in Forming and Operating an EB-5 Regional Center: A Guide for Developers and Business Innovators (ILW, 2014; Eds., L. Batya Schwartz Ehrens and Angelo A. Paparelli). Even if the multiple-fingers-in-multiple-pies immigration lawyer somehow prevails after all the finger-pointing exercises have been resolved, the process of deposition, discovery, settlement or trial will be enervating.

So, my esteemed and beloved colleagues, it is folly to think that your artfully crafted disclosures and mutual consents to joint representation will withstand close scrutiny and protect you.  

Instead, just say no! Don’t ever agree to represent more than a single party (or perhaps at most a class of similarly situated investors) in any multi-party EB-5 transaction, whether it be a pooled investment involving direct job creation, or a syndicated investment made through a regional center.  In my own case, the need for blissful sleep (and retention of my bar license) compel me to choose sides.  I shall only represent the project or the regional center in any syndicated investment (prospective client referrals without referral fees paid are gladly accepted) and I’ll look to my many talented sisters and brothers at the bar to represent the interests of the investor(s). 

We can do this together while practicing separately -- that is, by each of us undertaking to represent only one party in any pooled EB-5 investment.
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Immigration Progress: A Good EB-5 Policy Memo Could Still Be Better

6/9/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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French philosopher and aphorist, François-Marie Arouet, better known by his nom de plume, Voltaire, wrote in Italian that "Il meglio è l'inimico del bene [the perfect is the enemy of the good]." The wisdom of this saying, championed by pragmatists everywhere, comes to mind upon reading a May 30, 2013 Policy Memorandum (PM) issued by the Department of Homeland Security component known as United States Citizenship and Immigration Services (USCIS).

The agency and its popular Director, Alejandro Mayorkas, must be commended for removing much of the entangling underbrush that has grown around the "Employment Creation" fifth preference immigrant visa category (EB-5) for an investor who places at risk either $500,000 or $1 million (depending on location) in a commercial venture projected to create at least 10 jobs for U.S. workers.

With the enthusiasm of a vigilant homeowner wielding a high-powered weed-whacker, USCIS's PM has obliterated many ambiguities and unanswered questions that had prevented the widely popular EB-5 investor program to reach its full potential.

In one document, USCIS offered a comprehensive set of interpretations that promises to allow the EB-5 category to flourish.  Gone are most of the lingering doubts about the viability of bridge financing, and the stultifying restrictions imposed by an overly granular application of multi-digit "NAICS" codes -- a numbering system known as the North American Industry Classification System that the U.S. Census Bureau uses to identify and monitor various types of business establishments.

Also welcome are clarifications concerning (a) the relative power of the states and USCIS to define Targeted Employment Areas or TEAs -- rural areas and areas with unemployment at or above 150% of the national unemployment rate; (b) the specific circumstances when USCIS-designated Regional Centers (public or private entities authorized to accept EB-5 funds and allow its foreign investors to count direct and indirect job creation in reaching the 10-jobs-per-investor minimum) may or must submit amended petitions in order to change business activities or location, or when prior favorable EB-5 determinations will be given "deference," i.e.,  binding effect; and (c) the very limited situations when a business plan that has been derailed by unforeseen changes might adversely affect the later USCIS decision whether to remove conditions on permanent residence.

Still, without striving for perfection, USCIS could have made the PM much better.  Here are my suggestions for EB-5 PM 2.0:

  • Kill or reincorporate the past.  The latest PM takes a wishy-washy approach in dealing with several prior policy utterances, listed below:
Picture
The PM states: "Prior policy guidance, to the extent it does not conflict with this PM, remains valid unless and until rescinded."  Why allow ambiguities to linger?  USCIS should rescind all prior guidance and incorporate all extant EB-5 policies in a single document as THE EB-5 Policy. Having taken the weasely approach of allowing prior non-conflicting EB-5 policies to survive, the new PM merely begs the question and allows agency adjudicators, regional centers, individual investors and their lawyers to argue over the "extent" to which prior policies have been superseded or supplanted.  Enough with the arguing.  Make it clear in one document.   

  • Republish the policy as a proposed or interim final rule in the Federal Register and allow notice and public comment.  The new PM says:
SCOPE: This PM is applicable to, and is binding on, all USCIS employees. * * *

VII. Use

This PM is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
If USCIS were to pursue the admittedly slow procedure envisioned under the Administrative Procedure Act for publishing notice of a rule and the opportunity for the public to comment, none of the quoted verbiage, wiggle words no doubt drafted by the USCIS Office of Chief Counsel, would be necessary.  As welcome as the new PM is, and although it was preceded by a draft version on which the public was allowed to comment, USCIS never published the comments in the Federal Register (as would occur with a proposed or interim rule) and never explained why some comments were adopted and others eschewed.  Instead, the public and the courts are left to guess at whether the PM will actually be applied and be something on which the stakeholder community may rely.

  • Make sure economists are not EB-5 adjudicators.  Last week at a public forum, Director Mayorkas waxed lyrical over a supposed innovation he heralded. Henceforth, EB-5 adjudications would be made not by Immigration Officers but by newly hired economists who, he surmises, are better equipped by education to tackle the complex business and economic issues that arise in EB-5 petitions.  From now on, USCIS would no longer adopt the "hire to train" approach, whereby an indivdual is brought into the agency without experience and then trained in adjudicating a variety of immigration-benefits petitions and applications.  Rather, here on out in the EB-5 context, according to Director Mayorkas,  the agency will pursue a "hire to the skill" strategy, one that means that the successful job applicant at USCIS will only be hired if s/he already possesses the requisite skill -- an approach much like that of private industry. While the "hire to the skill" concept has much to commend it, the particular skill USCIS requires is not that of an economist.  No, the skill in question is possessed by those with a legal education.  At bottom, the EB-5 -- although containing elements of economic theory -- is ultimately a legal determination made by the application of facts to law.  USCIS should instead offer positions at a level of GS-13 and above to persons with at least a juris doctorate, preferably with bar admission and the ethical testing that entails.  This is not forging a new path; rather, it is merely replicating the reorganization of an adjudication function as occurred when the USCIS Asylum Office was reconstituted with lawyers in place of multi-function general adjudicators.  Economists can be advisors but should never be USCIS adjudicators.
  • Follow existing USCIS regulations in determining when a restructuring or reorganization creates a new EB-5 commercial enterprise. The EB-5 requires investment in a "new commercial enterprise" created, restructured or reorganized after the effective date of the law, November 29, 1990. On this point, the new PM states:
The immigrant investor can invest in an existing business, regardless of when that business was first created, provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results. 8 C.F.R. § 204.6(h)(2). The facts of Matter of Soffici — where an investor purchased a Howard Johnson hotel and continued to run it as a Howard Johnson hotel— were not sufficient to establish a qualifying restructuring or reorganization. 22 I&N Dec. 158, 166 (Assoc. Comm’r 1998) (“A few cosmetic changes to the decor and a new marketing strategy for success do not constitute the kind of restructuring contemplated by the regulations, nor does a simple change in ownership.”). On the other hand, examples that could qualify as restructurings or reorganizations include a plan that converts a restaurant into a nightclub, or a plan that adds substantial crop production to an existing livestock farm.
The PM too narrowly defines a corporate restructuring or reorganization as only encompassing a change in the business model or plan. Instead, USCIS should adopt a customary corporate or tax law determination of when a reorganization or restructuring occurs as it did in its I-9 (employment-eligibility verification) rules at 8 C.F.R. § 274a.2(b)(1)(vii).  In that USCIS regulation an employer has the option of treating an individual as either a continuing or a newly hired employee if the worker "continues his or her employment with a related, successor, or reorganized employer" and the "employer . . . continues to employ some or all of a previous employer's workforce in cases involving a corporate reorganization, merger, or sale of stock or assets . . ."  Thus, whenever a predecessor entity undergoes a change involving a corporate reorganization, merger, or sale of stock or assets, then the successor entity thereby created should be treated at the employer's option as a new commercial entity for EB-5 purposes.  If the "simple change in ownership" dictum of the legacy agency in Matter of Soffici is to the contrary, then USCIS should overrule it.  Sauce for the goose is sauce for the gander.

  • No EB-5 adjudication without representation.  USCIS must allow every party in the EB-5 ecosystem with a valid legal interest to protect the right to counsel at no expense to the government in proceedings before the agency.  USCIS must not persist in perpetuating conflicts of interest (real or really possible) by barring the attorney for the regional center or the pooled-investment enterprise to advocate for the validity of his or her client's position when a foreign citizen submits a petition for EB-5 classification on Form I-526 or a petition for removal of conditions on Form I-829. Regional centers and pooled investment entities have their businesses and brands at stake with every I-526 and I-829 submitted, yet USCIS muzzles them and expects the investor-chosen lawyer to carry their water.  The SEC would never require businesses to risk their assets or reputations by relying on the investors' counsel to argue their interests.  Neither should USCIS.
  • No unsigned EB-5 adjudications.  The new PM goes a long way toward greater transparency, but not quite far enough.  The history of the EB-5 program has been pock-marked by policy reversals and arbitrary rulings.  One measure of transparency is accountability.  A decisionmaker becomes accountable when adjudicator puts on one's product his or her name (or nom de plum, in recognition of the need for personal and/or homeland security).  There must be a way for the government (outside of USCIS), the public and the EB-5 stakeholder community to hold accountable any adjudicator who repeatedly flouts USCIS's EB-5 policy.  If it worked for Voltaire (née François-Marie Arouet), it should also work for USCIS adjudicators.
  • It's time for Expedited Adjudication.  Quite a while back, USCIS indicated that it would adopt Premium Processing expedited service for at least some EB-5 adjudications. With the hiring rate still barely keeping up with population growth, the time for quick decisions across all categories of EB-5 petitions is NOW.
  • It's time for coupling. There is no reason why the new PM did not announce a benefit that is presaged in S. 744, the comprehensive immigration reform bill awaiting floor debate in the Senate.  That bill, as amended by a change Senator Leahy proposed, would allow foreign citizens who submit EB-5 petitions to file, concurrently, corresponding applications for adjustment of status to conditional permanent resident.  Concurrent petition and adjustment filing has long been allowed by USCIS -- without the need for enabling legislation -- in the first three employment-based green card categories. USCIS should extend the same privilege to EB-5 petitioners and their immediate family members.
* * *
The USCIS should be applauded for issuing a comprehensible and almost comprehensive PM.  The huzzahs will be louder still if and when it adopts additional measures, suggested above and by others, that would create conditions for the EB-5 program to blossom even more prodigiously in the years ahead.
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Memo to Immigration Reformers: "First catch your [EB-5] hare"

2/10/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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Winston Churchill, whose mother was American (Jennie Jerome of Brooklyn), could just as well have been speaking about the components of comprehensive immigration reform.  Instead he was commenting on the Allies' post-World War II plans for world governance when, in the summer of 1942 with the war yet unwon, he said:
I hope these speculative studies will be entrusted mainly to those on whose hands time hangs heavy, and that we shall not overlook Mrs. [Hannah] Glasse’s Cookery Book recipe for the jugged hare—"First catch your hare."  -- The Last Lion: Winston Spencer Churchill: Defender of the Realm, 1940-1965,  by William Manchester and Paul Re.
This quote came to mind as I pondered two recent developments, one widely reported and the other probably unseen by most.  The first involves the various and sundry cart-before-the-horse discussions in the House and Senate and at 1600 Pennsylvania Avenue about essential elements of comprehensive immigration reform (CIR). The second is a Securities and Exchange Commission (SEC) press release announcing the filing of a civil complaint against a promoter and two LLCs alleging a scam involving over 250 Chinese investors reportedly duped into entrusting a total of $155 million in the hopes of gaining U.S. permanent residency under the EB-5 employment-creation immigrant visa category.

What's the connection?  Well, as everyone knows, Congress, the White House and the pro- and anti-immigration advocacy groups are busy arguing the pillars of immigration reform: border security, employment-based visa reforms, a path to citizenship for unauthorized immigrants, and future flows of legal immigrants and sojourners.  Given much less, if any, attention, however, is whether the government's immigration bureaucracy can competently manage, regulate and enforce all these laws.  Are the immigration bureaucrats, judges and police up to the task?  

To answer that elemental question, first consider the wisdom of Jim Collins in Good to Great who maintains that leaders of organizations that "go from good to great":
. . . start not with "where" but with “who.” They start by getting the right people on the bus, the wrong people off the bus, and the right people in the right seats. And they stick with that discipline—first the people, then the direction—no matter how dire the circumstances.
I submit -- as I've argued elsewhere and often in this blog -- that:
  • The immigration agencies need more of the new breed of leaders who are just as passionate about customer service in the immigration-benefits sphere as they are about border security and the integrity of the system ("boarding the right people onto the bus");
  • The heel-draggers and naysayers among the immigration bureaucracy, the cultists of "No," the feather-bedding careerists, and the power-mongers -- all must be exited ("getting the wrong people off the bus"); and, especially important,
  • Our immigration leadership must be deployed strategically and intelligently ("putting them in the right seats on the bus").
So what's this got to do with the SEC's civil suit against some reputed EB-5 scammers? Everything; because it illustrates fundamental structural problems with the way Congress established the architecture for immigration management and oversight.  

The SEC has expertise in enforcing the securities laws, a statutory scheme developed to protect investors from unscrupulous promoters.  The agency's professionals understand capital formation and are far more adept (the Madoff fiasco notwithstanding) than USCIS at determining whether adequate disclosures are made and representations about investment opportunities are grounded in fact or fantasy.  Similarly, the Department of Commerce understands business, entrepreneurship, start-ups and the promotion of America's goods and services.

The Departments of Homeland Security and State, on the other hand, are expected to apply and enforce the Immigration and Nationality Act. Until recently, with the advent of the Entrepreneurs in Residence program, they have had precious little training in the ways of business. Indeed, near-term history has shown that the DHS and State Department components tasked with determining whether individuals and businesses qualify for immigration benefits or should be debarred from participation or admission to the U.S. -- U.S. Citizenship and Immigration Services (USCIS) and U.S. consular officers in State, respectively -- have no special expertise in assessing legitimate or illegitimate business practices.

For examples in the EB-5 context see:
  • Immigration's NannyStateGate: Picking EB-5 Winners and Losers
  • The EB-5 Investor Immigration Program: Green Shoots or Chutes and Ladders?
  • Immigration-Agency Lawbreaking Revealed: USCIS's EB-5 "Tenant-Occupancy" Scandal
  • What Are We Paying for? USCIS and the I-526 Exemplar Process
  • Dollars and Jobs for EB-5 Green Cards: A Challenging Route to U.S. Residency
  • The Relevance of U.S. Securities Laws to Immigrant Investors, Eb-5 Regional Centers and Their Advisors
  • Investing in America through the E-2 and EB-5 Visa Categories.
If the immigration adjudicators have neither training nor expertise in business analysis, why then do the immigration reformers in Congress, acting with the professed intention to spur business activity, job creation and economic prosperity, continue to entrust business-related issues arising under the immigration laws to USCIS adjudicators and American consular officers? Witness, as two examples among many, the allocation of power in recent employment-based immigration initiatives:  The StartUp Visa Act and the Startup Act 2.0.  These legislative proposals ask the Homeland Security Secretary to determine whether capital has been invested and jobs have been created.

The StartUp Visa Act asks DHS to decide if "a qualified venture capitalist, a qualified super angel investor, or a qualified government entity . . .has invested" at least $100,000 on behalf of a "qualified immigrant entrepreneur . . . whose commercial activities" in two years will "create not fewer than 5 new full-time jobs in the United States," and "raise not less than $500,000 in capital investment in furtherance of a commercial entity based in the United States; or . . . generate [at least] $500,000 in revenue."  

Similarly, the Startup Act 2.0 expects DHS to assess whether a "qualified alien entrepreneur . . . [has] register[ed] at least 1 new business entity in a State; . . . employs. . .  at least 2 full-time employees  . . . , invest[ed], or raise[d] [a] capital investment of, not less than $100,000 in such business entity; and . . .  during [a]3-year period . . . employ[ed], at such business entity in the United States, an average of at least 5  full-time employees . . ."

I propose that Congress re-visit the Homeland Security Act and determine whether it makes sense to house USCIS in the Homeland Security Department, rather than in the Justice Department, given that justice is a better alignment of USCIS's mission in terms of weighing the scales and meting out a fair decision grounded in facts and law.  

As for business and investment cases, particularly the EB-5 immigrant and E-2 nonimmigrant categories, decisions about investment sufficiency, investor protection, and job creation prospects should be vested in the Commerce Department or a similarly qualified department or agency of government. See, "Economic Prosperity - The Missing Immigration Mission," and February 19, 2010 Memorandum of the Alliance of Business Immigration Lawyers  to Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services, Headquarters (USCIS) Re: "Employment-Based Immigration Proposals for Inclusion in Comprehensive [Immigration] Legislation":
Existing Executive-Branch Departments protect and promote important national interests: foreign policy (State), Homeland Security (DHS), Labor (DOL). No Department performs a similar function to support and defend the economic benefits of immigration as a means of fostering innovation and prosperity. “Fortress-America” policies and those that go too far in protecting domestic labor interests without recognizing the job-creating capabilities of employment-based immigration do a disservice to important national interests. CIR should create within the Department of Commerce or another suitable department an agency to support and protect the economic benefits of immigration. Meantime, USCIS should take steps to espouse, protect and defend encroachments on the job-creating power of business-related immigration laws.
If and when Commerce or another qualified federal component approves the business-based facts as warranting immigration benefits prescribed under the immigration laws, only then would USCIS, DHS's immigration inspectors and State's consular officers determine the question whether the individual investor or family member is or is not admissible to the United States.  In other words, USCIS's role would be to run the security screens, document biometrics, keep out the unwelcome, and issue fraud-proof plastic green cards and work permits to deserving recipients under the employment-based immigration roles.

For this to occur, however, Congress must really think big.  It must create a new cabinet post, the Secretary of the Department of Immigration, charged with overarching authority to harmonize and reconcile immigration law and policy among the other federal departments and agencies, and accorded a budget and staff adequate to the task.

Quoting another famous Brit, John Lennon, who likely would likely have become an American had he not been murdered before qualifying for naturalization, "you may say that I'm a dreamer, but I'm not the only one."  For as Winston Churchill also said:
We shall not fail or falter, we shall not weaken or tire. Neither the sudden shock of battle, nor the long-drawn trials of vigilance and exertion will wear us down.
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Immigration's NannyStateGate: Picking EB-5 Winners and Losers

10/28/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

With one week to go before the election, the final days have been marked by heated arguments over the proper role of government.  In the prime battleground state of Ohio, the Presidential candidates have crisscrossed virtually every county, arguing over whether and when government should intervene to save or create jobs.

Political comic, Jon Stewart, recently offered his usual sarcasm-saturated take on the topic, pointing out that -- whether the choice is made by government or the private sector -- consistently investing in winners while passing on likely losers is hard.

The Daily Show
Get More: Daily Show Full Episodes,Political Humor & Satire Blog,The Daily Show on Facebook

The same debate is playing out in microcosm on both coasts. In Washington and Laguna Niguel, officials of U.S. Citizenship and Immigration Services (USCIS) at the agency's DC headquarters and its California Service Center struggle and temporize over the selection of victorious and vanquished EB-5 Regional Centers. 

The EB-5 "employment-creation" immigrant visa category -- despite its 22-year, topsy-turvy history -- is finally beginning to capture the attention of U.S. dealmakers who seek project-financing alternatives to the nation's banks, which remain skittish about approving loans. Wealthy foreigners, however, still see America as attractive. The lure of green cards has produced a bumper crop of non-citizens willing to invest here, especially in Regional Centers, which are allowed by Congress to count both direct and indirect job-creation. 

So, in this land of caveat emptor and moral hazard, where the EB-5 regulations require that funds be "at risk," and Congress allows USCIS to approve Regional Center designations based merely on "general predictions . . . concerning . . . the jobs that will be created directly or indirectly as a result of . . . [EB-5] capital investments," why is USCIS falling down on the job?  Why is the agency requiring reams of detail, elaborate econometric reports, and extensive financial plans and projections, yet is still not quickly approving applications for new or amended regional center designations? Why too is USCIS seemingly usurping the investor-protection role of the Securities and Exchange Commission rather than merely up-or-down adjudicating requests for immigration benefits in prompt fashion as Congress intended? 

I raised these questions in a colloquy with senior USCIS officials at a recent EB-5 stakeholders engagement, suggesting that the more evidence the agency demands, the more likely that foreign investors will infer that approved regional centers are government-vetted, -approved and -endorsed. Wouldn't it be better, I asked, that USCIS disabuse investors of any such inferences by following Congress's design?  The EB-5 is a two-stage process involving classification of investors first for conditional green cards, and then 24 months later, taking another look when a petition to remove conditions on permanent residence is filed.  Thus, if the jobs are not created or the investment is not sustained at the two-year check-in, then why not merely deny the petition to remove conditions? 

Here is the essence of USCIS's response -- "Open Questions from Room, Q2" (which, to me, is unsatisfying):
  • Conditional green cards confer precious rights;
  • USCIS has a duty to find by a preponderance of the evidence that a reasonable basis has been shown allowing the agency to infer that ten jobs per investor will likely be created;
  • USCIS has a duty to protect American job seekers and foreign investors from sketchy investment deals;
  • Denying petitions to remove conditions on residence would disrupt the lives of investors and create adverse financial consequences for many parties;
  • The agency therefore must ask for all the evidence it needs and take sufficient time to reach the conclusion that however many jobs a regional center predicts will be created will in fact result.
In a perfect world, this explanation might be plausible; but in the real world of business, deals can't wait months and months to determine if EB-5 investor financing will be permitted.  Congress declared that regional centers merely submit "general predictions" that the required "jobs . . . will be created directly or indirectly as a result of . . . [EB-5] capital investments . . ."

I offered USCIS a compromise solution:  If a regional center predicts that 300 jobs will result from an aggregation of EB-5 investors' funds, but USCIS believes the evidence only establishes 250 reasonably likely jobs, why not approve the regional center designation and only allow investments capped at the amount needed to support this lesser number of jobs?  The reflexive USCIS initial response was that such a finding might be interpreted as an endorsement by the government that the creation of 250 jobs is assured.  Fortunately, however, the USCIS official leading the stakeholder engagement agreed to give further thought to the suggested compromise.

If USCIS adopts the suggested practice of capping the amount of permitted investments by issuing a decision that permits but does not require a prescribed number of reasonably foreseeable jobs to be created, then a virtuous cycle ensues:
  • Regional centers and prospective EB-5 investors would be given the freedom to exercise their respective business judgment and independently decide whether or not the deal still makes sense; 
  • If the scaled-back deal seems sound and investors still invest, they place their funds "at risk," as Congress intended;
  • Each investor, rather than the government, picks the hoped-for winner, as the god of Capitalism intended;
  • The rule of law would be honored by USCIS more in the observance than the breach, and
  • Immigration stakeholders would be one step further removed from living in a bureaucratically contrived Nanny State.
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