INS on EB-5 Removed from Hold
All District Directors (Including Foreign)
All Officers-In-Charge (Including Foreign)
All Port Directors
All Service Center Directors
Directors, ODTF-Glynco, GA and Artesia, NM
Date: May 21, 1998
From: Jacquelyn A. Bednarz
Acting Assistant Commissioner for Adjudications
Subject: Immigrant Investor Petitions Requests that Case be Removed from the Hold
This memorandum provides all Service Centers with procedures that are to be followed when attorneys with immigrant investor petitions that are subject to the current hold seek to have their case removed from the hold.
Petitioners who believe their petitions are not subject to the hold, as described in this office’s memorandum dated March 11, 1998, may mail or fax a request that the case be removed from the hold to the Deputy Director of the Service Center with jurisdiction over the petition. The request should state the specific reasons why a petitioner believes his or her petition is not subject to the hold. These requests are to be handled according to routine procedures. After a review of the petitioner’s file has been completed, petitioners are to be notified whether or not their petitions have been removed from the hold.
Of course, petitions subject to the hold may be withdrawn at any time and new petitions that are not subject to the hold may be filed and adjudicated. As noted in this office’s memorandum of March 11, 1998, immigrant investor petitions not subject to the hold should be adjudicated in the same manner as any other newly filed petition.
In accordance with prior informal communications, Service Centers are to forward the attached notice to petitioners whose cases are determined to fall within the terms of the hold. Similarly, petitioners whose cases do not fall within the terms of the hold are to be advised of this determination through routine procedures.
If you have questions regarding these field instructions, please contact Katherine A. Lorr at HQADN, 202/514-5014.
Attachment:
This office has received your Form I-526, Immigrant Petition by Alien Entrepreneur. Upon consideration, it has been determined that your petition involves one or more of the following features: (1) the use of a down payment of case with the remainder of the alien’s contribution in the form of a promissory note; (2) a multi-year installment payment plan on a promissory note with a substantial balloon payment after the conditions on the alien’s lawful permanent resident status are removed; (3) an option given to the alien to sell his or her investment for a fixed price that may be less than, equal to or greater than the alien’s case contribution (usually exercisable before or at approximately the same time as the balloon payment on the promissory note is due), or to be released from the obligation under the promissory note in the even of the insolvency of the partnership; (4) an option given to the enterprise or limited partnership to buy the investment at a fixed price (usually exercisable before or at the same time as the balloon payment on the promissory noted is due; (5) a provision that allows or requires the commercial enterprise to place sufficient cash into a bank account to guarantee that funds will be available to repay the alien if the alien exercises the sell option; (6) withholding of a portion of the alien’s capital contribution for attorneys’ fees and finders’ fees and other administrative costs; or (7) a guaranteed return on the cash portion of the alien’s “investment.”
Your petition and other petitions containing any of the above features are under review for compliance with existing law. At this time, the Administrative Appeal Office (AAO) is considering a number of certified petitions containing one or more of the above features. The AAO will issue decisions in these cases, and these decisions will serve as guidance in the adjudication of petitions under review, such as yours. Accordingly, the adjudication of your petition will be completed after the AAO has issued decisions in these certified cases. As with all petitions, you will be advised of the decision on your petition as soon as the adjudication is completed.