AILA Comments on EB-5 Hold

June 24, 1998

Via Facsimile (202) 514-0198
Ms. Jacquelyn A. Bednarz
Acting Assistant Commissioner for Adjudications
Immigration and Naturalization Service
425 Eye Street, NW
Washington, DC 20536

Dear Ms. Bednarz,

I would like to take this opportunity to thank you for coming to Houston last week to participate in the panel discussion and to inform AILA members on the latest update regarding the investor visa situation. To briefly introduce myself, I am currently serving as the chair of AILA’s Investor Committee. With so many rapid changes in the policies surrounding the EB-5 program, I feel that it is vital for there to be an open discussion and cooperation between AILA and INS in order to facilitate the adjudication of EB-5 cases and to ensure the success of the EB-5 program as intended by Congress.

The following comments are submitted on behalf of Investor Committee of the American Immigration Lawyers Association (“AILA”) in response to the above referenced INS memorandum relating to certain I-526 and I-829 petitions that have been placed on hold since December 1, 1997.

As you may be aware, AILA is a voluntary bar association of more than 5,000 attorneys and law professors who practice and teach in the field of immigration and nationality law. Through its members, AILA has significant experience in the area of U.S. immigration law and is uniquely qualified to evaluate the impact of this memorandum and the hold on adjudicating these petitions in general on the individuals, families and businesses who are being affected.

The following comments were selected from among those solicited by the AILA Investor Committee. Since time is of the essence, I would appreciate it if INS promptly responds to the questions, concerns and suggestion listed below.

  1. It is imperative that AILA-member attorneys and the public in general have an opportunity to review the AAO Precedent Decisions as soon as possible after they have been rendered. As the Acting Assistant Commissioner for Adjudications, you indicated at the AILA conference in Houston that the decisions would be completed by June 30, 1998. Considering the short time frame imposed by the June 12, 1998 Memorandum, how does INS propose to disseminate these decisions to AILA in a timely manner?
  2. The memorandum indicates that the four INS Service Centers will transfer the held cases to the CSC for adjudication by the tiger team. Petitioners will then be issued a transfer notice by the Service Center. Please confirm that petitioners whose held cases were originally filed with the CSC will also receive notices that their cases are being adjudicated by the tiger team.
  3. Many petitioners who have cases on hold have not yet been informed by INS that their case is on hold. Will these petitioners receive formal notification from INS, one way or the other, regarding the status of their respective cases? In other words, will INS confirm whether or not a given case is placed within the hold, has been transferred to the CSC tiger team or , in the case of a petition already at the CSC, will be adjudicated by tiger team?
  4. Regarding adjudication of I-829s, if an alien has timely filed an I- 829, but withdraws the I-829 and refiles an I-526 without any of the offending provisions according to INS instructions, will the alien be considered to be in lawful presence after the I-829 is withdrawn and while the I-526 is pending?
  5. In the above-mentioned situation, will the alien be provided a tolling period during the pendency of the refiled I-526? Will the alien be protected from the three or ten-year bar irrespective of the decision on the refiled I-526?
  6. Many “out of status” aliens filed I-526 petitions prior to January 14, 1998 in order to be “grandfathered” for 245(i) purposes. If they withdraw their held I-526 petitions and refile new I-526s, will they be allowed to adjust status in the U.S.?
  7. If an alient has an approved I-526 petition and has an adjustment application pending, will he be notified to refile his I-526? If the original I-526 contains one of the seven factors and the alien refiles his or her I-526, how will the refiling affect the adjustment application?
  8. If the tiger team approves a newly filed I-526, can the petition be forwarded directly to the foreign consular post without passing through the National Visa Center since most consular posts already have opened their immigrant visa files?
  9. The memorandum outlines procedures for any alien who has withdrawn an I-829, refiled an I-526 and is applying at a consular post abroad for an immigrant visa. The memorandum requires that the alien meet four factors. Specifically, the third factor requires the alien to show I- 829 was denied because the original petition did not comply with the law and the regulations. Please explain the apparent inconsistency in allowing the alien to withdraw the I-829 before denial and then requiring the alien to show that the I-829 was denied because the original petition did not comply with the law and the regulations?
  10. The fourth factor requires the alien to demonstrate that he or she “is basing the new petition on the same job-creating or job- preserving United States business as the original petition.” If the alien is required to initiate a new two-year period of conditional resident status, does the alien have to show that the commercial enterprise sustained the required employment levels for the additional two-year period. In other words, has the employment requirement now been increased to a total of four years?
  11. Can conditional permanent resident with previously approved I-526 and have being residing in the U.S. for up to 21 months supplement the I-526 and cure any defect on the original petition before they need to file I-829?
  12. What procedure will be set in place to deal with “aging out” dependents of aliens who must withdraw and refile I-526 petitions?
  13. Why must the alien withdraw the I-526? Can the alien simply file a new petition and keep the existing I-526 as well? What authority does INS have to require an alien to withdraw any petition?
  14. Must the new I-526 petitions be filed before July 15th? What about petitions after that date? Where should these later petitions be filed and by whom will they be adjudicated? Will a new filing fee be required for new petitions?
  15. What should a petitioner do if he filed an I-526 that does not contain any of the seven factors listed in previous INS memoranda, but the petition has nevertheless been placed on hold?
  16. Will the tiger team adjudicate the I-526 petitions currently on hold? In other words, if a held I-526 petition is not withdrawn and no new I-526 is filed, will the tiger team team adjudicate these cases?
  17. Will the tiger team adjudicate the I-526 petitions consistent with the INS General Counsel’s memoranda prior to December 19, 1997, consistent with the INS General Counsel’s Memorandum dated December 19, 1997 or consistent with any AAO Precedent Decision?
  18. Does the INS plan to follow the INS General Counsel’s recommendations, contained on Page 35 of the December 19, 1997 Memorandum, to

    “ . . . as a courtesy to the general public, publish in the Federal Registry any instructions to the field it may issue as a result of this memorandum. We recommend further that the Service hold these cases in abeyance until such time as HQREN publishes these instructions in the Federal Register. We also recommend that such Federal Register Notice begin with language to the following effect.”

If INS does not plan to follow this recommendation, why not?

The AILA Investor Committee recommends that INS act quickly to save the immigrant investor category, which was originally designed to attract foreign investments and create jobs for U.S. workers, but which now have been strangled by an unreasonably long delay. We hope to see a rapid and positive resolution to this hold that has paralyzed the EB-5 program and we hope that INS recognizes its duty to adjudicate these petitions as quickly as possible, consistent with the law and regulations.

On behalf of AILA Investor Committee, I appreciate the opportunity to present these issues to you and we thank you in advance for your time and consideration in preparing a response. I can be available for any question or any further discussion regarding the above concerns at the Service’s convenience.

Very truly yours,

Linda W. Lau
Chair of AILA Investors Committee

c.c.: Elissa McGovern,
AILA Associate Director for Liaison

Ellen Ma Lee, Chair
AILA INS Liaison

Cite as AILA Doc. No. 98070899.