uscis requests victorville eb-5 dismissal or stay 9-20-11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) CITY OF VICTORVILLE, ) CALIFORNIA, et al., ) ) Plaintiffs, ) ) v. ) Civil No. 11-1287-RWR ) U.S. DEPARTMENT OF HOMELAND ) SECURITY, et al., ) ) Defendants. ) __________________________________________)

DEFENDANTS’ MOTION TO DISMISS OR IN THE ALTERNATIVE TO STAY PROCEEDINGS

Defendants move to dismiss Plaintiffs’ complaint under Federal Rule of Civil Procedure

12(b)(1) for lack of ripeness, as the agency action at issue in this case is still pending at the

administrative level. The Director of the California Service Center of the United States

Citizenship and Immigration Services (USCIS) terminated the Regional Center of Victorville

Development, Inc.’s (RCVD’s) regional center status, which had the effect of denying RCVD’s

ability to sponsor alien investors for permanent residence. The Director certified her decision,

however, to the Administrative Appeals Office (AAO), an administrative appellate body with the

authority to review de novo the Director’s decision. Plaintiffs’ case is currently pending at the

AAO, which by December 2, 2011, will render a decision that will at a minimum clarify the

issues in this case, and may even overturn the Director’s initial decision, making this case moot.

Thus, the agency’s action is not yet fit for judicial review, and Plaintiffs’ complaint should be

dismissed without prejudice on prudential grounds for lack of ripeness.

Case 1:11-cv-01287-RWR Document 12-1 Filed 09/13/11 of 38

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Alternatively, the Court should hold this action in abeyance pending the outcome of the

agency’s administrative appellate review process. Allowing the agency to complete its appellate

review process will help preserve judicial resources, and potentially obviate the need for Court

intervention in this matter. Defendants accordingly request, in the alternative, that this case be

held in abeyance until the AAO completes its appellate review.

BACKGROUND

I. STATUTORY AND REGULATORY BACKGROUND

In 1990, Congress amended the Immigration and Nationality Act (INA) to provide for

classification of “employment creation” immigrants who invest capital in new commercial

enterprises in the United States and create at least ten full-time jobs for United States workers as

a result of their investments. See Immigration Act of 1990, Pub. Law No. 101-649, § 121(a)

(Nov. 29, 1990) (codified at 8 U.S.C. § 1153(b)(5)(A)).1 The purpose of this preference category

is not to reward wealthy immigrants, but to create and sustain jobs for United States workers.

See S. Rep. No. 101-55, at 21 (1989).

Congress set the qualifying capital investment level at $1 million, but aliens may qualify

for classification by investing at least $500,000 in a “targeted employment area.” 8 U.S.C.

§ 1153(b)(5)(C); see also Employment-Based Immigrants, 56 Fed. Reg. 60,897, 60,911 (Nov.

29, 1991) (codified at 8 C.F.R. § 204.6(f)). Congress defined “targeted employment area” as “a

rural area or an area which has experienced high unemployment (of at least 150 percent of the

national average rate).” 8 U.S.C. § 1153(b)(5)(B)(ii).

1 Aliens falling into this category are referred to as “employment-based fifth preference immigrants,” or colloquially by the immigration bar as “EB-5” immigrants, as these aliens are classified under the fifth section of the employment based provision of INA, i.e., section 203(b)(5).


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In 1991, the Immigration and Naturalization Service (INS) published regulations through

notice and comment rulemaking interpreting the relevant statutory terms and establishing

procedures for aliens to file petitions under the employment creation program. See 56 Fed. Reg.

at 60,910-60,913 (codified at 8 C.F.R. § 204.6).2 Under these procedures, USCIS determines

whether the alien investor has made a qualifying investment and created ten full-time jobs as a

result of the investment. See Matter of Soffici, 22 I. & N. Dec. 158 (Assoc. Comm’r 1998);

Matter of Izumii, 22 I. & N. Dec. 169 (Assoc. Comm’r 1998). If USCIS determines that an

alien’s investment qualifies under the employment creation program, the agency may grant

permanent resident status to the qualifying alien for a conditional two year period. See 8 U.S.C.

§ 1186b(a)(1). Within the ninety days before the second anniversary of the alien’s admission to

the United States as a conditional permanent resident, the alien must petition USCIS to remove

his or her conditional permanent resident status. See 8 U.S.C. § 1186b(d)(2)(A). USCIS will

remove the conditional nature on the alien’s permanent resident status if the alien demonstrates

that he or she has sustained the requisite capital investment and otherwise complied with the

employment creation program during the two-year conditional residency period. Id. at

§ 1186b(d)(1). The alien must sustain at least ten full-time jobs for United States workers during

the entire conditional residency period. See S. Rep. No. 101-55, at 22 (1989).

In 1993, Congress expanded the employment creation program by authorizing a “pilot

program” for “regional investment center[s] in the United States for the promotion of economic

growth, including increased export sales, improved regional productivity, job creation, and

increased domestic capital investment.” See Departments of State, Justice, and Commerce, the

2 Under the Homeland Security Act of 2002, Congress abolished the INS. See Pub. Law No. 107-296, § 471 (Nov. 25, 2002). Congress transferred the authority to adjudicate immigrant visa petitions from the Commissioner of INS (and the Attorney General) to USCIS, an agency within the Department of Homeland Security. Id. at § 451(b)(1).


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Judiciary and Related Agencies Appropriations Act of 1992, Pub. Law No. 102-395, § 610(a)

(Oct. 6, 1992).3 The pilot program allows economic units, whether public or private, engaged in

the promotion of economic growth to seek regional investor status with USCIS for the purpose

of sponsoring alien investors to fund proposed economic development plans. See USCIS

Adjudicator’s Field Manual § 22.4(a)(2)(A).4 Thus, a local government unit designated as a

regional investment center is able to attract foreign investors to fund public projects, and the

foreign investor beneficiaries are able to obtain conditional permanent resident status.

Congress directed legacy INS, now USCIS, to “permit aliens admitted under the pilot

program described in this section [610] to establish reasonable methodologies for determining

the number of jobs created by the pilot program, including such jobs which are estimated to have

been created indirectly through revenues generated from increased exports, improved regional

productivity, job creation, or increased domestic capital investment resulting from the pilot

program.” Id. at § 610(c), as amended by the Visa Waiver Permanent Program Act, Pub. Law

No. 106-396, § 402(b) (Oct. 30, 2000). In 2002, Congress amended the statute by further

defining the nature and scope of regional investment centers:

A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have.

3 For the Court’s convenience, Defendants attach as exhibit “A” the text of the relevant Public Laws governing the pilot program. 4 Available at http://www.uscis.gov/portal/site/uscis (follow “Laws” hyperlink; then follow “Immigration Handbooks, Manuals and Policy Guidance” hyperlink). For the Court’s convenience, Defendants attach as exhibit “B” the relevant portions of the Adjudicator’s Field Manual.


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Id. at § 610(a), as amended by the 21st Century Department of Justice Appropriations Act, Pub.

Law No. 107-273, § 11037(a)(3) (Nov. 2, 2002). Congress authorized the Secretary of

Homeland Security to grant regional investment center status. Id., as amended by the Basic Pilot

Program Extension and Expansion Act of 2003, Pub. Law No. 108-156, § 4(a) (Dec. 3, 2003).

The Secretary delegated this authority to USCIS. See 8 C.F.R. § 2.1; Secretary of Homeland

Security’s Delegation Order No. 0150.1 § 2(Y) (Mar. 1, 2003).

In 1993, the agency published regulations implementing the regional investment center

pilot program. See Immigrant Investor Pilot Program, 58 Fed. Reg. 44,606 (Aug. 24, 1993). The

regulations set forth the documentary evidence required for the granting of regional investment

center status. Each regional center wishing to participate in the pilot program must submit a

proposal that:

(i) Clearly describes how the regional center focuses on a geographic region of the United States, and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment;

(ii) Provides in verifiable detail how jobs will be created indirectly through increased exports;

(iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center;

(iv) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and

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

Id. at 44,609 (codified at 8 C.F.R. § 204.6(m)(3)). Under these regulations, USCIS defines

“direct jobs” as “jobs that establish an employer-employee relationship between the commercial


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enterprise and the persons that they employ.” USCIS Adjudicator’s Field Manual

§ 22.4(a)(2)(A). The agency defines “indirect jobs” as “jobs held by persons who work for the

producers of materials, equipment, and services that are used in a commercial enterprise’s capital

investment project, but who are not directly employed by the commercial enterprise, such as

steel producers or outside firms that provide accounting services.” Id. The agency also

recognizes a subset of indirect jobs flowing from capital investments, called “induced jobs,”

which are defined as “jobs created when direct and indirect employees go out and spend their

increased incomes on consumer goods and services.” Id.

A grant of regional investment center status allows an alien investor to file a petition for

conditional permanent resident status based on their capital investment in the regional center, but

the alien investor must establish that such investment will create jobs indirectly through revenues

generated from increased exports resulting from the new commercial enterprise in connection

with the regional center. Id. (codified at 8 C.F.R. § 204.6(m)(7)). The alien investor must

establish indirect job creation through the use of “reasonable methodologies.” Id. (codified at 8

C.F.R. § 204.6(m)(7)(ii)).

If USCIS determines that a regional investment center no longer serves the purpose of

promoting economic growth, including increased export sales, improved regional productivity,

job creation, and increased domestic capital investment, the agency issues a notice of intent to

terminate the participation of the regional center in the pilot program. Id. (codified at 8 C.F.R.

§ 204.6(m)(6)).5 The regional investment center has thirty days from receipt of the notice of

5 On September 2, 2010, USCIS amended § 204.6(m)(6) to require regional investment centers to submit evidence of their continuing compliance with the statutory and regulatory requirements of the pilot program on an annual or cumulative basis, or as otherwise requested by USCIS. See U.S. Citizenship and Immigration Services Fee Schedule, 75 Fed. Reg. 58,962, 58,990 (Sept. 24, 2010).


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intent to terminate to offer evidence in opposition to the grounds alleged in the notice. Id. After

reviewing the record evidence, USCIS notifies the regional center of its decision. Id.

In the event the agency terminates the regional center’s status under the pilot program,

the regional center may appeal the termination to the AAO. Id. Alternatively, the agency itself

may certify its decision to terminate the regional center’s status to the AAO for administrative

review. See 8 C.F.R. §§ 103.4(a)(1), (4). The regional center may submit a brief to the AAO

within thirty days after service of the certification notice. See 8 C.F.R. § 103.4(a)(2).

The AAO is an appellate body located within its own division of USCIS, separate from

the adjudication arm of the agency, which is located under Service Center Operations. See 8

C.F.R. § 103.3(a)(1)(iv).6 The AAO performs an important fact-finding function when

reviewing an initial USCIS decision, see United States v. Gonzales & Gonzales Bonds and

Insurance Agency, 728 F. Supp. 2d 1077, 1086 (N.D. Cal. 2010), and it has jurisdiction to review

de novo issues of law and fact on appeals taken from initial USCIS decisions, see Soltane v. U.S.

Dept. of Justice, 381 F.3d 143, 145-46 (3d Cir. 2004); see also Taco Especial v. Napolitano, 696

F. Supp. 2d 873, 879 (E.D. Mich. 2010). Where the AAO reviews an initial decision of USCIS,

the AAO is authorized to overturn or reverse the agency’s decision in whole or in part. See

Matter of Chawathe, 25 I. & N. Dec. 369, 374-76 (AAO 2010). The AAO’s decision constitutes

final agency action for purposes of judicial review. See Herrera v. USCIS, 571 F.3d 881, 885

(9th Cir. 2009).

6 See also USCIS’s organizational chart, available at www.uscis.gov (use “About Us” hyperlink; then use the “organizational chart” hyperlink). Under the general reorganization of the legacy INS in 1994, the Administrative Appeals Unit was renamed the “Administrative Appeals Office,” which title it retains today. See Implementation of Internal Reorganization of the Immigration and Naturalization Service, 59 Fed. Reg. 60,065, 60,066 (INS) (Nov. 22, 1994).


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II. FACTS AND COURSE OF ADMINISTRATIVE PROCEEDINGS

In January 2009, Plaintiff City of Victorville (Victorville) filed a request with USCIS’s

California Service Center (CSC) to designate the RCVD as a pilot program regional investment

center. See Compl., Exhibit (Ex) A, ECF No. 1-1 at 2. Victorville stated that RCVD intended to

participate in the pilot program to finance $100 million in critical infrastructure investments. Id.

at 45-47. Victorville stated that it created RCVD to attract foreign national investors with the

purpose of using bridge loans from those investors to finance phases of its infrastructure

improvement projects. Id. at 46-47, 51. Victorville also stated that it had been designated as a

high unemployment area, and accordingly qualified as a targeted investment area under the

statute and regulations. Id. at 6.

In support of its petition for designation as a pilot program regional center, RCVD

submitted an economic input-output analysis based on the IMPLAN model to show the projected

economic effect of its proposed infrastructure improvements. Id. at 51.7 RCVD’s IMPLAN

analysis projected the creation of 4,224 jobs by year 2011 as a result of the initial bridge loan

from foreign investors. Id. at 68.

On June 19, 2009, CSC approved RCVD’s request for designation under the pilot

program. See Compl., Ex. B, ECF No. 1-1 at 71. CSC informed RCVD, however, that to

maintain its regional center status, RCVD was required to provide CSC with, among other

things, follow-up information relating to RCVD’s administration of the regional center’s

7 According to the Department of Commerce, IMPLAN is an impact model that regionalizes the data from the United States national tables using several variables. “The IMPLAN modeling system also includes a SAM system, which is a matrix presentation of certain aspects of the national accounts and of other parts of the economy - such as employment by type of worker or income distributions - using the structural linkages provided by the input-output accounts.” U.S. Dep’t of Commerce, Bureau of Economic Analysis, Concepts and Methods of the U.S. Input-Output Accounts 12-19 (April 2009), http://www.bea.gov/papers/pdf/IOmanual_092906.pdf; see also http://www.implan.com.


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activities and all relevant information pertaining to RCVD’s sponsorship of foreign investors

under the employment-based immigrant investor program. Id. at 73-76.

In May 2010, CSC sent to RCVD a notice of intent to terminate its regional center status.

See Compl. ¶ 26, ECF No. 1 at 9-10. In response to the agency’s notice of intent to terminate,

RCVD represented that “very little has changed relating to the implementation of the Victorville

Regional Center designation from its original application,” but RCVD admitted nevertheless that

three of the projects “previously included in the Victorville Regional Center designation are

currently on temporary hold, pending a change in the economic climate.” Compl., Ex. D, ECF

No. 1-1 at 86-87. As a result, only an industrial wastewater treatment facility project was

currently active at the time RCVD responded to CSC’s notice of intent to terminate. Id. at 86.

RCVD stated that 12 permanent jobs would be required to operate the wastewater facility in year

2010. Id. at 107. RCVD’s amended IMPLAN analysis also projected that several other

purported “direct” jobs would result from the operation of the wastewater facility. Id.

After reviewing RCVD’s evidence filed in response to CSC’s notice of intent to

terminate, the agency identified several unresolved issues. See Compl. Ex. E, ECF No. 1-1 at

116. For example, CSC noted that RCVD’s direct job analysis appeared defective because of

reliance on employment purportedly arising from another employer. Id. at 119. In addition,

CSC noted that RCVD’s assumption that 100% of the investment would be spent locally was not

adequately explained in the IMPLAN analysis. Id. at 120. As a result, on August 10, 2010, the

agency issued a second notice of intent to terminate in which it requested RCVD to submit

further evidence and documentation for the purpose of resolving discrepancies in RCVD’s

IMPLAN analysis. Id. at 115, 121.


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On September 1, 2010, RCVD responded to CSC’s request for evidence. See Compl. Ex.

F, ECF No. 1-1 at 125. RCVD withdrew from its investment scheme three of the four

infrastructure improvement projects that originally appeared in its initial request for

classification as a regional center. Id. RCVD provided further detail regarding the remaining

wastewater treatment project and the creation of “direct jobs.”

On October 20, 2010, after reviewing RCVD’s additional evidence, CSC issued a notice

of termination. See Compl. Ex. G, ECF No. 1-1 at 137. The agency found that RCVD did not

adequately explain its direct job analysis, and that RCVD’s expert failed to provide an economic

analysis that focused on capital investment in the wastewater treatment facility in terms of its job

creation efficacy. Id. at 144. Accordingly, CSC concluded that RCVD failed to demonstrate that

its proposed infrastructure improvement project would result in the creation of 500 direct or

indirect jobs as a result of the 50 prospective EB-5 investors associated with RCVD’s planned

participation in the pilot program. Id.

On November 15, 2010, RCVD filed a motion to reopen administrative proceedings with

CSC, based on its submission of a new economic model. See Compl. Ex. H, ECF No. 1-1 at 148,

165. RCVD abandoned the IMPLAN model and relied instead on a new RIMS II analysis based

on a capital spending multiplier.8 Id. at 177-79. Because of discrepancies in RCVD’s economic

modeling, however, CSC requested additional evidence to resolve these discrepancies. See

Compl. Ex. I, ECF No. 1-1 at 199-201.

8 According to the Department of Commerce, Bureau of Economic Analysis (BEA), “RIMS II is based on an accounting framework called an I-O table. For each industry, an I-O table shows the distribution of the inputs purchased and the outputs sold. A typical I-O table in RIMS II is derived mainly from two data sources: BEA’s national I-O table, which shows the input and output structure of nearly 500 U.S. industries, and BEA’s regional economic accounts, which are used to adjust the national I-O table in order to reflect a region’s industrial structure and trading patterns.” U.S. Dep’t of Commerce, Bureau of Economic Analysis, Regional Multipliers 1 (March 1997), http://www.bea.gov/regional/rims/.


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On May 24, 2011, after considering RCVD’s additional evidence, CSC granted RCVD’s

motion to reopen but affirmed the agency’s prior decision to terminate. See Compl. Ex. K, ECF

No. 1-1 at 215. The agency noted that RCVD failed to resolve adequately several factual issues

that had not been clarified in the economic model or in RCVD’s response to CSC’s request for

additional evidence. Id. at 216. For example, RCVD appeared to overstate the aggregate

amount of capital expenditures for the wastewater treatment project, which called into question

the accuracy of the RIMS II analysis that RCVD submitted. Id. at 218. In addition, RCVD was

unable to identify the source of funding for several other purported infrastructure projects. Id. at

220.

Although CSC upheld its termination of RCVD’s regional investor center status based on

material factual discrepancies in the record, the agency certified its decision to the AAO for de

novo appellate review. Id. at 221. CSC indicated that certification to the AAO was justified

because of the complexity of the issues involved in RCVD’s investment scheme and economic

modeling. Id. As a result, CSC’s order is not yet final, see USCIS Adjudicator’s Field Manual

§ 10.18(a), as the AAO may ultimately overturn the CSC’s decision, see Matter of Chawathe, 25

I. & N. Dec. 369, 374-76 (AAO 2010).

On July 15, 2011, Plaintiffs filed a complaint with this Court seeking review of USCIS’s

initial termination of RCVD’s regional investor center status. See Compl., ECF No. 1-1.

Plaintiffs seek review of the agency’s action under the Administrative Procedure Act (APA). Id.

at ¶¶ 40-41.


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ARGUMENT

I. THE COURT SHOULD DISMISS PLAINTIFFS’ COMPLAINT ON PRUDENTIAL GROUNDS FOR LACK OF RIPENESS

The ripeness doctrine is drawn both from Article III limitations on judicial power and

from prudential reasons for refusing to exercise jurisdiction. See Nat’l Park Hospitality Ass’n v.

Dep’t of the Interior, 538 U.S. 803, 807 (2003). Because of prudential considerations that

undergird the ripeness doctrine, the D.C. Circuit has mandated dismissal of a civil action “even if

there is not a constitutional bar to the exercise of jurisdiction.” Wyo. Outdoor Council v. United

States Forest Service, 165 F.3d 43, 48 (D.C. Cir. 1999). The ripeness doctrine is designed to

respond to pragmatic concerns about the relationship between the courts and agencies. See Full

Value Advisors, LLC v. SEC, 633 F.3 1101, 1108 (D.C. Cir. 2011).

“The ripeness inquiry probes the fitness for review of the legal issue presented, along

with . . . the hardship to the parties of withholding court consideration.” Teva Pharm. USA, Inc.

v. Sebelius, 595 F.3d 1303, 1308 (D.C. Cir. 2010) (internal quotations and citations omitted).

The “fitness” prong of the analysis generally addresses “whether the issue is purely legal,

whether consideration of the issue would benefit from a more concrete setting, and whether the

agency’s action is sufficiently final.” National Ass’n of Home Builders v. U.S. Army Corps. of

Engineers, 440 F.3d 459, 463 (D.C. Cir. 2006). The Court should also consider whether the

Court and the agency would benefit from postponing review until the policy in question has

sufficiently “crystalized” by taking a more definite form. Better Gov’t Ass’n v. Dep’t of State,

780 F.2d 86, 92 (D.C. Cir. 1986); AT&T Corp. v. FCC, 349 F.3d 692, 700 (D.C. Cir. 2003). As

Defendants show below, under these standards Plaintiffs cannot demonstrate that this case is fit

for judicial review at this time.


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A. Plaintiffs’ claims are not fit for judicial review at this time

Plaintiffs are unable to show that their claims alleging CSC’s erroneous termination of

RCVD’s regional center status are fit for judicial determination at this point in time. The agency

action at issue in this case is still pending before an administrative appellate body, see Compl.

Ex. K, ECF No. 1-1 at 215, which has de novo authority to review the questions of fact and law

arising out to the initial agency decision to terminate RCVD’s regional center status, see Soltane,

381 F.3d at 145-46. The initial decision of the CSC’s Director does not have precedential effect,

see 8 C.F.R. § 103.3(c), and the AAO does not owe any deference to such non-precedential

decisions, see Izummi, 22 I. & N. Dec. at 182. Thus, the certification of Plaintiffs’ case to the

AAO allows Plaintiffs a “second bite at the apple” regarding RCVD’s ability to qualify as a

regional center. Plaintiffs may ultimately succeed before the AAO, which militates strongly in

favor of dismissing Plaintiffs’ complaint without prejudice for lack of ripeness. Cf. Full Value

Advisors, 633 F.3 at 1107-08.

The issues Plaintiffs raise involve mixed questions of law and fact, which are normally

not fit for judicial review where, as here, the agency is still engaged in fact finding. See General

Motors Corp. v. EPA, 363 F.3d 442, 452 (D.C. Cir. 2004). Unlike other administrative appellate

bodies, the AAO does not defer to the fact finding of the initial decision maker; rather, it weighs

the record evidence anew. See Chawathe, 25 I. & N. Dec. at 374-76. Moreover, the AAO’s

administrative appellate process “provides a means for the agency to gather facts contrary to its

initial determination.” Gonzales & Gonzales Bonds and Insurance Agency, 728 F. Supp. 2d at

1086. The AAO is authorized to engage in its own fact finding when reviewing an initial agency

decision, and may issue requests for evidence to resolve factual issues on appeal. See 8 C.F.R.

§ 103.2(b)(8)(iii). In this case, the AAO’s de novo review authority may allow for further


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development of the factual record, which will permit the agency to apply the statute and

regulations to a complex set of economic facts based on policy determinations by higher-level

agency officials.

Agencies act at the height of their delegated authority when dealing with mixed questions

of law and fact, see NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130-31 (1944), and courts

generally allow the agency’s fact finding to conclude before reviewing the agency action, see

General Motors Corp., 363 F.3d at 452. In this case, because the agency is still engaged in fact

finding and the administrative record is still open, this matter is not currently ripe for judicial

review.

The pending agency action in this case is also not ripe for review because the Court and

the agency would benefit from postponing review until the agency has adequately “crystalized”

the relevant issues through higher-level agency review. See AT&T Corp., 349 F.3d at 700. The

agency created the AAO specifically to centralize all agency appeals with the goal of

establishing an “expeditious appeals procedure with uniform, consistent decisions.” Powers and

Duties of Service Officers, 48 Fed. Reg. 43,160 (INS) (Sept. 22, 1983). The AAO reviews initial

USCIS decisions for consistency and accuracy in the interpretation of statutes and regulations.

See USCIS Adjudicator’s Field Manual § 3.5(c). The AAO provides guidance to the public

regarding the meaning of the statute and regulations, id., and it resolves novel or complex issues

of law and fact by providing uniform guidance to field adjudicators, id. at § 10.18(a).

Accordingly, the agency may refer novel or complex issues to the AAO for resolution by higher-

level agency officials. See 8 C.F.R. 103.4(a)(1). The agency should be given an opportunity to

complete its review of the administrative proceedings in this case, and to formulate a definitive,


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uniform policy position at the administrative appellate level before the Court reviews the agency

action.

Plaintiffs ask this Court to review a decision of the CSC Director, see Compl. Ex. K, ECF

No. 1-1 at 215, but this decision does not contain the agency’s final position on the complex

economic issues arising out of the administration of the regional center pilot program. Although

the Director’s decision discusses RCVD’s investment proposal and economic projections in

detail, the Director is not empowered to set policy for the agency. See Matter of Sanchez, 21 I.

& N. Dec. 444, 460 (BIA 1996) (district directors are not empowered to make binding policy

determinations). Moreover, because the Director certified her decision to the AAO, it “is not

considered final until the order has been considered by the appellate body.” See USCIS

Adjudicator’s Field Manual § 10.18(a). Ordinarily, a preliminary determination of an agency

official that does not represent the “last word” on a policy issue is not fit for judicial review. See

Am. Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C. Cir. 1996). Therefore, once the

AAO issues its final decision, the Court will be better informed about the agency’s final policy

decisions, which will aid judicial review in the event of an adverse decision against Plaintiffs.

Plaintiffs allege that the agency’s action thus far is “final” under the APA, see 5 U.S.C.

§ 704, and is therefore fit for judicial review, but such an argument is misplaced. Although

ripeness and finality are related and often overlapping doctrines that limit challenges to agency

action in federal court, ripeness is a distinct category in that it relates to whether the claims

against an agency are premature. See Ass’n of Flight Attendants v. Chao, 493 F.3d 155, 160

(D.C. Cir. 2007). An agency action may be final under the APA, but for prudential reasons, the

ripeness doctrine may counsel against judicial review until the agency completes its

administrative process. See Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 163 (1967); see


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also Ass’n of American Railroads v. ICC, 846 F.2d 1465, 1469 (D.C. Cir. 1988). Because the

agency action here is currently subject to higher-level agency review at the AAO, which has

authority to review initial USCIS decisions de novo and set nation-wide guidance for agency

adjudicators, the agency’s decision making process has not sufficiently unfolded to the point at

which the Court can be certain the agency has finally spoken on the relevant factual and policy

issues related to Plaintiffs’ claims. The Court and the parties would benefit from a determination

of the complex issues in this case by the AAO, which will issue a decision by December 2, 2011.

This is particularly true considering the AAO may ultimately grant Plaintiffs the relief they

request. Yet, even if the AAO upholds the director’s decision, the Court and the parties will

benefit from a more developed articulation of the relevant issues of fact and law in this case.

Thus, Plaintiffs’ claims are premature, and for prudential reasons, the Court should dismiss their

complaint.

B. The agency’s strong institutional interests in completing the administrative review process outweigh any potential harm to Plaintiffs

Where the Court concludes there are strong interests militating in favor of postponement,

the Court must weigh those interests against the potential hardship to the plaintiff as a result of

delaying judicial review. See AT&T Corp., 349 F.3d at 702. Here, Plaintiffs are unable to show

sufficient hardship to counterbalance the administrative and judicial interests in allowing the

agency to complete further fact finding and to crystalize the legal and policy issues arising from

the administration of the regional center pilot program.

As a threshold matter, hardship is not established simply because a plaintiff is forced to

participate in further administrative and judicial proceedings in the event the court dismisses the

suit for lack of ripeness. See AT&T Corp., 349 F.3d at 702. In any event, Plaintiffs in this case

do not suffer any harm by pursuing the administrative process with the AAO, as Plaintiffs may


17

ultimately obtain the benefit requested. Additionally, Plaintiffs do not present a situation where

a statutory protection or right will expire in the event the Court declines judicial review at this

point, so they cannot show harm based on a delay in federal court review. See City of Fall River,

Mass. v. FERC, 507 F.3d 1, 7 (1st Cir. 2007).

Moreover, Plaintiffs’ claims of lost revenue and the frustration of their infrastructure

improvement projects as a result of USCIS’s termination of RCVD’s regional center status

(Compl., ECF No. 1 at ¶¶ 33, 35) are insufficient to outweigh the Department of Homeland

Security’s institutional interests in completing administrative review in this case.9 Regarding the

degree of alleged harm in this case, Plaintiffs’ own documentation indicates that the disruption to

RCVD’s infrastructure improvement projects is the result of a flagging economy, not simply

USCIS’s decision to terminate its status. See Compl. Ex. F, ECF No. 1-1 at 125-16. At most,

Plaintiffs can only allege harm resulting from insufficient funding of the wastewater treatment

project. Yet, this project has been pending for several years, and Defendants expect the AAO to

issue a final decision in Plaintiffs’ case by December 2, 2011. Any harm in delaying review at

this point for 80 days is marginal in comparison to the length of time that this project has been

pending.

9 Plaintiffs claim that various immigrant investors are “harmed” by the termination of RCVD’s status, as these unnamed immigrant investors are unable to immigrate to the United States based on their investments with RCVD. See Compl. ¶ 34, ECF. No. 1 at 10. Defendants note that this alleged harm is not sufficient to satisfy the applicable standing requirements. Prudential requirements for standing mandate that plaintiffs fall within the statutory “zone of interest,” which bar standing for generalized grievances, and prohibit individuals from raising a third party’s legal rights. See Allen v. Wright, 468 U.S. 737, 751 (1984). “The plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 474-75 (1982) (quoting Warth v. Seldin, 422 U.S. 490, 499(1975)); see also United Food & Commercial Workers Union v. Brown Group, 517 U.S. 544, 556-57 (1996); Singleton v. Wulff, 428 U.S. 106, 114-16 (1976). An individual’s standing also cannot be based on that of third-party co-workers, friends, or family members who should plead their own injuries. See Miller v. Albright, 523 U.S. 420, 446-48 (1998).


18

In addition, Plaintiffs have been afforded the opportunity to present more evidence to the

AAO, and the AAO may ultimately agree with Plaintiffs and overturn the director’s initial

decision. Even if Plaintiffs do not prevail at the administrative level, given that decisive

questions remain open at the administrative level, including the sufficiency of Plaintiffs’

investment plans and economic modeling, the prudent course is to allow the agency to conclude

its proceedings and crystalize the issues before this Court determines the relevant factual and

legal issues currently pending before the agency.

II. ALTERNATIVELY, THE COURT SHOULD STAY PROCEEDINGS PENDING THE OUTCOME OF THE ADMINISTRATIVE APPEAL

Alternatively, if the Court declines to dismiss Plaintiffs’ case for lack of ripeness,

Defendants request that the Court stay proceedings pending the outcome of the AAO’s decision,

which is anticipated by December 2, 2011. The result of the pending certification to the AAO

may render Plaintiffs’ case moot. It serves the interest of all parties and advances judicial

economy to stay proceedings pending the final outcome of the pending administrative appeal. If

the AAO were to reverse the director’s initial decision to terminate RCVD’s regional center

status, a live case or controversy would no longer exist. Even if the AAO were to affirm the

director’s decision, the AAO’s decision would facilitate the Court’s review by clarifying the

relevant issues of fact and policy in this case. As a result, it is in the Court’s interest to stay

proceedings until the issues have been finalized at the administrative level.

This Court has broad discretion to stay proceedings as an incident to its power to control

its own docket. See Clinton v. Jones, 520 U.S. 681, 706 (1997); see also SEC v. Chestman, 861

F.2d 49, 50 (2d Cir. 1988). Proper use of this authority “calls for the exercise of judgment,

which must weigh competing interests and maintain an even balance.” Wedgeworth v.

Fibreboard Corp., 706 F.2d 541, 545 (5th Cir. 1983) (quoting Landis v. North American Co.,


19

299 U.S. 248, 254-55 (1936)). In deciding whether a stay should be ordered in a given case, a

district court should evaluate hardship and inequities to the parties to the lawsuit and the

relationship of the stay to fulfillment of judicial objectives of simplification of the issues in

question and trial of the case. See United Merchants and Mfrs., Inc. v. Henderson, 495 F. Supp.

444, 447 (N.D. Ga. 1980); see also United Sweetener USA, Inc. v. Nutrasweet Co., 766 F. Supp.

212, 217 (D. Del. 1991). Courts have granted motions to stay proceedings where an agency

action with the potential of affecting the litigation is unfolding concurrently with the district

court proceedings. See, e.g., Milk Industry Foundation v. Glickman, 955 F. Supp. 8 (D.D.C.

1997).

In light of the pending AAO proceedings in this case, judicial objectives are fulfilled by

staying proceedings. The AAO engages in further fact finding following an initial agency

determination, see Gonzales & Gonzales Bonds and Insurance Agency, 728 F. Supp. 2d at 1086,

and the AAO serves the important function of crystalizing the agency’s policy and legal

determinations for uniform administration of nationwide programs, see USCIS Adjudicator’s

Field Manual §§ 3.5(c), 10.18(a). In the event the AAO affirms the director’s decision

terminating RCVD’s status, the Court would benefit from the AAO’s final determination of the

relevant issues in this case, but such an event may never come to pass since there is a possibility

that the AAO may grant Plaintiffs the relief they request by reversing the Director’s initial

decision.

Because ongoing agency proceedings here may resolve the very issue presented to the

Court by rendering the case moot, it serves judicial economy to hold proceedings in abeyance

while the central issue to this litigation is finalized at the agency level. Staying proceedings here


20

would serve the “longstanding policy of the law to avoid duplicative litigative activity.” Envtl.

Def. Fund v. Reilly, 909 F.2d 1497, 1507 (D.C. Cir. 1990).

On the other hand, denial of the requested stay will prejudice Defendants by denying

USCIS the opportunity to crystalize its policy position through the administrative appellate

process, which necessarily involves the contribution of higher-level agency officials who are

responsible for making final determinations that affect the administration of a nationwide

program. The Court would also benefit from a more complete administrative record in the event

of an adverse agency decision from the AAO. Defendants expect that the AAO will issue its

decision by December 2, 2011. Thus, holding the case in abeyance for 80 days will not

unreasonably delay the Court’s determination of the issues in the event this case is not rendered

moot by that time.

Therefore, if the Court declines to dismiss Plaintiffs’ complaint for lack of ripeness,

Defendants move in the alternative to stay the instant litigation pending the outcome of the

certified administrative appeal with the AAO. Defendants expect that the AAO will issue a

decision by December 2, 2011.


21

Respectfully submitted this 13th day of September, 2011:

RONALD C. MACHEN, Jr. United States Attorney RUDOLPH CONTRERAS Chief, Civil Division

/s/ Harry B. Roback HARRY B. ROBACK, DC Bar No. 485145 Assistant U.S. Attorney 555 Fourth St., NW Room E4218 Washington, D.C. 20530 (202) 616-5309 [email protected]

/s/ Geoffrey Forney

GEOFFREY FORNEY Trial Attorney United States Department of Justice Office of Immigration Litigation District Court Section

450 5th Street, NW Washington D.C. 20001 (202) 532-4329 [email protected]


22

CERTIFICATE OF SERVICE I hereby certify that on September 13, 2011, I electronically filed the foregoing

DEFENDANTS’ MOTION TO DISMISS OR IN THE ALTERNATIVE TO STAY

PROCEEDINGS with the Clerk of Court by using the CM/ECF system, which will provide

electronic notice and a hyperlink to this document to the following attorney of record:

Carl W. Hampe BAKER & McKENZIE 815 Connecticut Avenue, NW Washington, DC 20006-4078 [email protected]

/s/ Geoffrey Forney

GEOFFREY FORNEY Trial Attorney United States Department of Justice


Defendants’

Exhibit A


Defendants’

Exhibit B


USCIS Adjudicator’s Field Manual

USCIS Adjudicator’s Field Manual 3.5 Roles of Headquarters, Regions and Field Organizations. * * * (c) Administrative Appeals Office . (Revised 03-13-2005) The Administrative Appeals Office (AAO) produces appellate decisions that provide fair and legally supportable resolutions of individual applications and petitions for immigration benefits. These decisions provide guidance to applicants, petitioners, practitioners, and government officials in the correct interpretation of immigration law, regulations, and policy. To accomplish its mission of providing timely, consistent, and accurate resolutions of appeals through written decisions that are fair, impartial, and legally supportable, the AAO: · Reviews the decisions of adjudicators of petitions and applications for immigration benefits to ensure consistency and accuracy in the interpretation of immigration laws, regulations, and policies. · Maintains awareness of applicable case law to ensure compliance with the most current legal standards. · Reviews and edits all decisions for quality control as to accuracy and legal sufficiency. · Maintains the highest possible level of output for every officer consistent with a high standard of quality in appellate decisions issued. · Recommends the publication of precedent decisions as necessary to clarify issues in the adjudications program. The authority to adjudicate appeals is delegated to the AAO by the Secretary of the Department of Homeland Security (DHS) pursuant to the authority vested in him through the Homeland Security Act of 2002, Pub. L. 107-296 . See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8 CFR 2.1 (2003). The AAO exercises appellate jurisdiction over the matters described at 8 CFR 103.1(f)(3)(iii) (as in effect on February 28, 2003), with two exceptions - (1) petitions for approval of schools and the appeals of denials of such petitions have been the responsibility of Immigration and Customs Enforcement since November 1, 2004; and (2) applications for S nonimmigrant status have been the responsibility of the Office of Fraud Detection and National Security of U.S. Citizenship and Immigration Services since October 2004. * * *



(e) Service Centers. There are four Adjudications service centers. Originally, they were completely regional in character; that is, they each handled the same types of work within their respective geographic regions and each reported through the regional director. Eventually, the centers began reporting directly to Headquarters and the workloads, in part, became specialized. For most applications and petitions except asylum, the geographic jurisdictions of the service centers are as follows: Vermont Service Center : Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Puerto Rico, Rhode Island, Vermont, Virgin Islands, Virginia, West Virginia. Texas Service Center : Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, Oklahoma, South Carolina, Tennessee, Texas Nebraska Service Center : Alaska, Colorado, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming California Service Center : Arizona, California, Guam, Hawaii, Nevada. Asylum pre-processing and related employment authorization applications are divided among the four service centers according the asylum office jurisdictional lines: Newark, New York and Arlington asylum office cases are handled through the Vermont Service Center; Chicago and San Francisco asylum office cases are handled through the Lincoln Service Center; Los Angeles asylum office cases are handled through the California Service Center and Miami and Houston asylum offices are handled by the Texas Service C enter. In addition, specific service centers have been designated to handle certain specialty cases: Nebraska Service Center handles refugee and asylee adjustment cases; refugee relative petition cases; all refugee travel document issuance and reentry permit issuance cases; military service and Filipino War Veteran N-400 cases; employment authorization for A and G dependents; HRIFA adjustment cases and relating employment authorizations and parole requests, and NAFTA and sports-related temporary worker cases; Texas Service Center handles immigrant investor cases ( I-526 and I-829 ); Cuban adjustment cases; immigrant visas except those entering at Los Angeles and San Francisco; NACARA Section 202 adjustment cases and relating employment authorizations and parole requests; California Service Center handles immigrant visa cases from Los Angeles and San Francisco; immigrant investor cases ( I-526 and I-829 ); NACARA Section 203 applications ( I-881 ) for aliens living in Alaska, Arizona, California, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota,



Oregon, Ohio, South Dakota, Washington or Wisconsin; replacement alien registration cards (I-551 renewal program); and Vermont Service Center NACARA Section 203 applications ( I-881 ) for all states except those listed for California Service Center; and replacement alien registration cards (I-551 renewal program). * * * 10.18 Certification of Decisions. (a) General. A certification is a request by the deciding official for review of a decision (approval or denial) by an appellate authority. A decision may be certified to the appropriate appellate authority (AAO or BIA). In a case where there is no appeal provided by regulation, certification is to the AAO. Certification should be initiated in a case where: · Headquarters has directed certification of an individual case, class of cases or cases with particular fact patterns; · the deciding official believes the facts or issues of a case are so novel or complex that review by a higher level of authority is an appropriate means of obtaining guidance. A certification, whether the decision is to approve or deny a case, requires a formal written order and preparation of Form I-290C. A certified decision is not considered final until the order has been considered by the appellate body. [See 8 CFR103.4] (b) Procedures for Forwarding. In order to certify a case, the office preparing the initial decision must assemble a compete record of proceedings in the same manner as a record prepared for an appeal, including the “Board” and “Public” copies. * * * 22.4 Employment Creation Entrepreneur Cases. (a) General. In 1990, Congress created the Employment Creation Immigrant Visa Category (EB-5). Section 121(a) of Public Law 101-649 (Nov. 29, 1990) . Section 203(b)(5) of the Immigration and Nationality Act, as amended, allows for admission to permanent residence on a two-year conditional basis to qualified aliens who will contribute to the economic growth of the United States by investing in U.S. businesses and creating needed employment opportunities. In 2002, Congress amended the EB-5 statute. Those amendments are discussed in paragraph (h), below.



(1) Basic (Non-Pilot Program) Provisions. Section 203(b)(5) of the Act authorizes up to 10,000 visas each fiscal year to alien entrepreneurs (along with their spouses and unmarried minor children) who have invested or are actively in the process of investing in a new commercial enterprise. The new commercial enterprise may take any lawful business form, including a limited partnership, and must both benefit the U.S. economy and directly create full-time employment for not fewer than 10 “qualifying employees,” defined as U.S. citizens, lawful permanent residents, or certain other immigrants lawfully authorized to be employed. Noncommercial activities, including home ownership, do not qualify. In general, the Act established a threshold investment amount of one million U.S. dollars ($1,000,000.00). In order to encourage the investment in new enterprises located in areas that would most benefit from employment creation, section 203(b)(5)(B) of the Act sets aside on an annual basis 3,000 of the available 10,000 EB-5 visas for qualified aliens who have made investments in “targeted employment areas.” Such targeted employment areas are defined in the Act to include rural areas and areas which have experienced high unemployment. The investment amount for investing in a targeted employment area is currently set at five hundred thousand dollars ($500,000.00). (2) Regional Center Pilot Program. [Revised 12-11-2009] (A) Program Overview. The Regional Center Pilot Program was first instituted in 1992. Three thousand of the 10,000 total available EB-5 visas are set aside for aliens who invest in a USCIS designated “regional center” in the United States organized “for the promotion of economic growth, including improved regional productivity, job creation, and increased domestic capital investment.” Section 610 of Pub. L. 102-395, as amended by section 116(a)(l) of Pub. L. 105-119 and section 402(a) of Pub. L. 106-396. An alien investing in a new commercial enterprise affiliated with and located in a regional center is not required to demonstrate that the new commercial enterprise itself directly employs ten U.S. workers; a showing of indirect job creation and improved regional productivity will suffice. Implementing regulations for the Pilot Program are found at 8 CFR 204.6(m) . Note Direct jobs are those jobs that establish an employer-employee relationship between the commercial enterprise and the persons that they employ. Regional centers typically use the RIMS II or IMPLAN economic models to determine the number of indirect jobs that will be created through investments in the regional center’s investment projects. Indirect jobs are the jobs held by persons who work for the producers of materials, equipment, and services that are used in a commercial enterprise’s capital investment project, but who are



not directly employed by the commercial enterprise, such as steel producers or outside firms that provide accounting services. There is a sub-set of indirect jobs that are calculated using economic models that are known as induced jobs. Induced jobs are those jobs created when direct and indirect employees go out and spend their increased incomes on consumer goods and services. A Regional Center Proposal must be filed with the CSC to request USCIS approval of the proposal and designation of the entity that filed the proposal as a regional center. A “Regional Center” is defined as any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment. The Regional Center Proposal must demonstrate that capital investments made by individual alien investors within the geographic area of the regional center will satisfy the EB-5 eligibility requirements in order to create qualifying EB-5 jobs. The Regional Center Proposal should also demonstrate that the new commercial enterprise’s organizational documents, capital investment offering memoranda, and transfer of capital mechanisms for the transfer of the alien investor’s capital into the job creating enterprise are in compliance with established EB-5 eligibility requirements. (B) Regional Center Proposal EB-5 Eligibility Requirements. Regional Center Proposals must demonstrate the following EB-5 eligibility requirements in order to be approved: (i) A clearly identified, contiguous geographical area for the regional center. If the regional center proposal bases its predictions regarding the number of direct or indirect jobs that will be created through EB-5 investments in the regional center, in whole or in part, by offering investment opportunities to EB-5 investors with the reduced $500,000 threshold, then the Targeted Employment Areas (TEAs), Rural Areas (areas with populations under 20,000 people) and areas of high unemployment (areas with unemployment rates 150% or more of the national rate), should be identified. Note An alien filing a regional center affiliated Form I-526 must still establish that the investment will be made in a TEA at the time of filing of the alien’s Form I 526 petition, or at the time of the investment, whichever occurs first, to qualify for the reduced $500,000 capital investment threshold. (ii) A detailed description of how EB-5 capital investment within the geographic area of the regional center will create qualifying EB-5 jobs, either directly or indirectly. This analysis must be supported by economically and statistically valid forecasting tools, including, but not limited



to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported [if any], and/or multiplier tables. (iii) A detailed prediction of the proposed regional center’s predicted impact regionally or nationally on household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and outside of the geographic area of the proposed Regional Center. (iv) A description of the plans to administer, oversee, and manage the proposed Regional Center, including but not limited to how the regional center will: · Be promoted to attract EB-5 alien investors, including a description of the budget for the promotional activity; · Identify, assess and evaluate proposed immigrant investor projects and enterprises; · Structure its investment capital, e.g., whether the investment capital to be sought will consist solely of alien investor capital or a combination of alien investor capital and domestic capital, and how the distribution of the investment capital will be structured, e.g. loans to developers, venture capital, etc.; and · Oversee all investment activities affiliated with, through or under the sponsorship of the proposed Regional Center. (C) “Exemplar” Form I-526 Petition. The Regional Center Proposal may also include an “exemplar” Form I-526 petition that contains copies of the commercial enterprise’s organizational documents, capital investment offering memoranda, and transfer of capital mechanisms for the transfer of the alien investor’s capital into the job creating enterprise. USCIS will review the documentation to determine if they are in compliance with established EB-5 eligibility requirements. Providing these documents may facilitate the adjudication of the related I-526 petitions by identifying any issues that could pose problems when USCIS is adjudicating the actual petitions. For example, if a new commercial enterprise’s limited partnership (LP) agreement contains a buy-back agreement (i.e. a redemption clause guaranteeing the return of the alien investor’s capital investment), then the alien investor’s capital investment will not be a qualifying “at-risk” investment for EB-5 purposes. Likewise, if the LP agreement requires the payment of fees from the alien investor’s capital investment of $1,000,000 or $500,000, respectively, to the extent that the investment will be eroded below the qualifying level, preventing the full infusion of the capital into the job creating enterprise, then the alien investor’s capital investment will not meet the required EB-5 level of investment. The approval of a Regional Center Proposal containing defects such as these is not in



the best interest of the prospective regional center or the USCIS EB-5 program as the end result will most likely be the denial of the individual alien investor’s Form I-526 petition. Any individual Form I-526 and Form I-829 petitions claiming new commercial enterprise affiliation with a regional center and thus EB-5 eligibility based on indirect job creation must be denied if they are filed prior to the approval of the regional center’s Regional Center Proposal. (D) Regional Center Proposal and Amendment Request Processing. There are two general workflows for the adjudication of Regional Center Proposals, one for Initial Regional Center Proposals and one for Regional Center Amendment requests. ISOs adjudicate cases within these workflows in “first in, first out” order, unless an expedite request is granted by the CSC director in accordance with the routine expedite criteria that is used for all cases filed with USCIS. (E) Amended Regional Center Proposals. (i) Amendments Due to Material Changes in EB-5 Related Organizational Structure or Capital Investment Instruments. Designated regional centers may elect to file an amended Regional Center Proposal and receive an updated approval of the regional center designation prior to the filing of individual EB-5 petitions that use supporting documentation relating to EB-5 eligibility issues that has been materially altered or is inconsistent with the documentation used as the basis for the approval of the regional center designation. Doing so, may assist in the streamlining of the adjudication of affiliated individual EB-5 petiti ons, as the altered documentation may otherwise need to be re-evaluated within the individual EB-5 petitions to determine if they still EB-5 compliant. (ii) Other Amendments . Some Regional Center Proposals are approved for an industry segment using a hypothetical investment project in order to demonstrate how an actual investment project will be capitalized and operate in a manner that will create at least 10 direct or indirect jobs per alien investor. Individual Form I-526 petitions are then filed with copies of the business plan for the hypothetical investment project as well as the regional center’s actual investment project. If the actual investment project is not different in a material way from the exemplar investment project, then the job creating efficacy of the investment project, if carried through as specified in the business plan will generally be established. Regional centers may opt to file an amendment of their Regional Center Proposal in order to eliminate the uncertainty as to whether the actual investment project is different in a material way from the exemplar investment project that was approved in the Regional Center Proposal. The filing of these amendments is in the best interest of the EB-5 program as it may assist in the streamlining of the adjudication of the individual Form I-526 petitions. These amendments



should be supported by detailed documentation relating to the actual investment project. Once approved, then only the documentation relating to the actual approved project would be provided in support of the Form I-526 petition, eliminating the uncertainty regarding whether the actual project meets EB-5 eligibility requirements. A regional center may also file an amendment in order to provide an exemplar Form I-526 with the supporting documentation required by 8 CFR 204.6 in order for USCIS to determine if the documentation is EB-5 compliant, and thus facilitate adjudication of an actual but identical Form I-526 petition, if the evidence of record otherwise establishes EB-5 eligibility. Note If the Regional Center requirements are met and a determination of eligibility is made, then the favorable determination regarding regional center eligibility requirements for the capital investment structure and job creation should generally be given deference and not revisited in the adjudication of individual EB 5 petitions, as long as the underlying facts upon which the favorable decision was made remain unchanged. The CSC EB-5 program manager should be notified to determine the appropriate action to take if an ISO discovers during the adjudication of an EB-5 petition that: · Documentation relating to the regional center’s capital investment structure or job creation methodologies, or the exemplar Form I-526 petition has materially changed since the most recent approval of the regional center designation; · The record contains evidence of fraud or misrepresentation; or · The evidence of record indicates that the previously favorable decision to approve the regional center proposal (or amendment) to include the determination that the exemplar Form I-526 petition is EB 5 compliant. (b) Governing Factors . 8 CFR 204.6(a) cites several governing factors which you must consider. They are: · A visa petition must be filed; · A fee for filing the petition is required; · Before the petition is considered properly filed, the petition must be signed by the petitioner and the initial supporting documentation required by this section must be attached; · The petition must be filed with the California Service Center. [bullet revised 06-17-2009] · The appeal of a denial of this petition is to the Administrative Appeals Office; and



· The approval of the petition is valid indefinitely, provided that the investment remains qualifying.


uscis requests victorville eb-5 dismissal or stay 9-20-11

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