Archive for June, 2012
Wednesday, June 27th, 2012
The regional center EB-5, or Immigrant Investor, program enables businesses and real estate developers seeking capital apply to U.S. Citizenship and Immigration Services to become approved to accept investments from foreign investors. Each foreign investor, upon proving that his investment will create full-time jobs for ten U.S. workers, is able to apply for green cards for himself and his immediate family members.
The EB-5 program is a great example of a Congressionally-created win-win-win program. Communities, real estate developers and businesses win because EB-5 capital enables buildings to be built and businesses to expand that otherwise would not happen because of unavailability of capital from traditional sources. The U.S. labor market wins because hundreds of thousands of new jobs are created for U.S. workers. Eligible and worthy immigrants win by being able to immigrate to the U.S. and contribute to our economy.
Unfortunately, as currently administered by USCIS, the program is not realizing its full potential. The investment and job-creating purposes that Congress had in mind, and that the Administration fully supports, are being thwarted by ever longer USCIS processing delays and rules that change in the middle of the process with no notice, creating unpredictability and soaring denial rates. This is having a serious chilling effect on foreign investors who are otherwise ready, willing and able to put millions of dollars to work in communities around the country.
Currently, 60% to 65% of the regional center applications are denied. This statistic, in and of itself, is an indication that the program is clearly not functioning as it should. The relatively small percentage that are approved are often approved either too late to enable the project to go forward or long after the project has already commenced. Moreover, the frequency of requests for additional evidence (“RFE’s”)—sometimes several successive requests on the same case—shows that USCIS has been less than clear with stakeholders with respect to what it is looking for in an approvable case. This is just not the result that Congress intended when it created this promising program.
AILA’s EB-5 Committee has spent a great deal of time studying the problems that are endemic to the EB-5 program and prevent the program from achieving its Congressionally-mandated goals. The Committee suggests that the following “10 Point Program” could be implemented rather easily and could ultimately save the EB-5 program and maximize its job-creating potential:
- Provide a forum whereby USCIS representatives on a quarterly basis can advise regional center stakeholders of the issues it is seeing in applications that are producing the largest numbers of RFEs and denials. At the same forum, allow regional center stakeholders to provide lists of adjudicatory issues on which there is a lack of clarity.
- When new standards are going to be implemented that will affect large numbers of applications (whether it involves the methodology for the counting of jobs that will be created, or the structure of bridge financing, or any other aspect of an EB-5 transaction), provide notice to stakeholders in advance rather than issuing large numbers of RFEs on issues that were not issues at the time of filing.
- Implement USCIS Director Mayorkas’ idea of a Decision Board as promptly as possible. This Decision Board would be made up of economists and business analysts and would meet or conference with regional center applicants to discuss any issues that need to be resolved before a project can be approved.
- Hire a sufficient number of examiners to bring processing times to levels that make some sense in a time-sensitive, job-creating program such as EB-5.
- Instruct examiners that, except in rare instances, multiple RFEs should not be issued.
- Publish meaningful guidelines on what adjudicators want to see when adjudicating a regional center application. Most denials and RFEs are based on often-changing policies that are not contained in any regulation or even any government-issued memorandum.
- Make the regional center amendment process workable. Regional Centers are approved for specific geographical areas, specific industry codes and specific economic methodologies for counting job creation. Right now, if a regional center wants to amend its geography, economic methodology or industry code, the published processing time is 8 months – longer than filing a new regional center application. This is unworkable.
- USCIS has created a process – the exemplar I-526 – that enables a regional center to have a project approved for EB-5 investment prior to receiving investments. The problem is that, despite a $6,230 fee and an 8 month processing time, USCIS does not consider itself bound by any approval. USCIS must make this process meaningful as a way of saving time and adjudicatory resources. If it is not meaningful, stakeholders should not be expected to pay large filing fees and wait long periods of time; and the process should be eliminated.
- Provide substantive responses to inquiries sent to USCIS’s EB-5 mailbox.
- Last, but by no means least, increase the monitoring of approved regional centers. We all agree that if there are any non-compliant regional centers or project developers, they do harm to the program and should be eliminated.
Developers who invest hundreds of thousands of dollars putting together projects to present to USCIS deserve clarity and consistency. These prescriptions could be implemented immediately. The result would be not only a benefit to developers but also to the country, which would attract greater amounts of foreign direct investment and create more jobs for U.S. workers. We hope that USCIS will look favorably upon these constructive suggestions.
Monday, June 25th, 2012
Today, the Supreme Court issued a 5-3 decision in Arizona v. United States, the Obama Administration’s challenge to Arizona’s controversial immigration-related enforcement provision.
The Court ruled, generally, that it is the Federal Government, and not the states, which regulate immigration matters, and that three of four provisions that were the subject of the suit were “preempted,” or were so inconsistent with the federal regulation of immigration that they could not stand. The three provisions struck down were Arizona’s attempt to a) create its own requirement for foreign nationals to register with the immigration authorities and carry proof of such registration; b) criminalize the act of working without authorization in the United States, which federal law does not; and c) authorize state and local police to arrest people the police suspect of being removable from the United States.
The Supreme Court did not hear the challenge to the final provision, which allows Arizona police to question the immigration status of any person they have a “reasonable suspicion” to believe is in the United States unlawfully. The Court held it was too early to determine whether that provision, as enforced, unlawfully subjects some citizens and permanent residents to unconstitutional detention while their immigration status is verified.
The Court’s decision is a blow to those who would have states attempt to make their own laws and “attrition through enforcement” efforts except in the narrow area of business licensing recognized last year in the court’s Whiting decision.
It is also interesting to note that the Court incidentally validated the President’s authority to defer enforcement action for DREAMers:
“Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”
Arizona et al. v. United States, 567 U.S. ___ (2012) (slip op. at 4-5) (citations omitted, emphasis added).
Monday, June 11th, 2012
Editor’s Note: Amanda Ketchum, a Senior Paralegal at the firm, is on leave for an internship this summer. Below is a guest post about her activities so far.
My First Three Weeks
At the top of Mt Kigali, Rwanda
In connection with my graduate studies, I recently received an opportunity to spend the summer interning with the U.S. State Department. Specifically, I’m spending ten weeks working in the Political & Economic section of the U.S. Embassy in Kigali, Rwanda. This section is responsible for analyzing and reporting on the full range of political activities in Rwanda, including the government, foreign affairs, human rights, the judiciary, political-military issues, and social and religious affairs. The section also provides Washington and Embassy officials with reporting and analysis of significant economic and financial developments in Rwanda in order to advance U.S. economic and commercial policies. Although I’ve only been here for just over three weeks, I have already had a lot of fantastic experiences – both in and outside of work. I’ve also been able to meet some really wonderful people who have gone out of their way to make sure that I’m settling in and having a good time. Here’s what I’ve been up to so far:
Work – My first assignment was to develop a new “Business” section of the Kigali Embassy’s website, which includes information on doing business in Rwanda (for U.S. companies), doing business in the U.S. (for Rwandan companies), and key business links and economic reports for those looking to brush up on their U.S.-Rwandan bilateral investment treaties. Here’s the link to the section of the site that I helped develop with the Embassy’s Economic/Commercial Officer, Joe Palombo.
On a more day-to-day basis, I’ve been attending meetings at various Rwandan ministries and judicial offices and drafting summaries of these meetings that are turned into cables (memos) and distributed to officials in D.C. and to other Embassies worldwide. I’ve also been attending various Embassy meetings to be briefed on the current state of affairs from a variety of different intra-post departments, including the Consular (yay!) and Public Diplomacy sections of the Embassy, as well as the CDC, USAID, and Peace Corps, which all have a strong presence here.
Fun –As I’m here during the dry season (sunny with highs in the 70’s/80’s every day), it means that there are plenty of outdoorsy activities to keep me occupied on the weekends. Two weekends ago I ran in the Kigali Peace Marathon (not the actual marathon – but the 5K portion of the run!) which was really great. After the race, one of the Consular officers hosted a barbeque at his house, so I more than made up for all the calories I burned off during the run. There was also a volleyball game that turned into a pretty intense (but fun!) tournament, however, so I was able to re-burn off my grilled goat kabobs. Last weekend, a group of friends and I went hiking on Mt. Kigali, which (I just found out thanks to Wikipedia) is 6,075 feet above sea level. The picture above shows of all of us who made the hike, as well as some local children that decided to follow us on our trip. The picture was taken by a Rwandan that said he never used a camera before, so it’s a little off-center, but you get the idea! Next weekend I’ll be camping in Akagera National Park in the eastern part of Rwanda, and will be able to get up close to some wild animals. I’ll be sure to send updates and pictures along!