Revised INS Memo on the EB-5 Hold
MEMORANDUM FOR Regional Directors
District Directors (Including Foreign)
Regionals Counsels
Officers-In-Charge (Including Foreign)
Port Directors
Service Center Directors
Directors, ODTF-Glynco, GA and Artesia, NM
FROM: Joseph R. Greene
Acting Associate Commissioner for Programs
SUBJECT: Immigrant Investor Petitions – Recent Actions And Procedures for Eliminating the Hold
REVISED JUNE 12 MEMORANDUM
This memorandum supersedes the June 12 field memorandum on this subject. Due to a clerical error, the June 12 distribution should be destroyed and replaced by these instructions. Please note the changes to this memorandum in the last 2 sentences of the second paragraph of the section entitled “FORWARDING PETITIONS TO THE TIGER TEAM.”
GENERAL INFORMATION
This memorandum provides Service Centers with the procedures that are to be followed for adjudicating immigrant investor petitions (Forms I-526 and I-829) that have been placed in the hold pursuant to the March 19, 1998, memorandum from this office.
Pursuant to the instructions in the March 11, 1998, field memorandum, the Administrative Appeals Office (AAO) received 19 immigrant investor petitions (I-526) on certification from the four Service Centers and is preparing decisions on these cases. The Immigration and Naturalization Service (Service) will designate from among these 19 certified cases certain precedent decisions.
During the week of July 6, 1998, the Service will provide intensive supplemental training on these precedent decisions and related EB-5 matters to select adjudicators.
After the training, the Service will assemble a “tiger team” to adjudicate the cases currently in the Headquarters-directed hold. The “tiger team” will operate from the California Service Center from July 15 through August 13.
FORWARDING PETITIONS TO THE TIGER TEAM
Service Centers are instructed to forward all Form I-526 and I-829 petitions in the hold, clearly marked in red marker “EB-5 HOLD CASES,” to the California Service Center by Federal Express, return receipt requested, by July 1, at the following address: 24000 Avila Road, 2nd floor (P.O. Box 10526), Laguna Niguel, California 92607-10526. The records point of contact is Lydia Lundquist, Program Assistant (949-360-2820). Petitions which fall within the terms of the hold should continue to be forwarded until August 1. Each Service Center should keep a complete list of transferred hold cases, with shipping receipts and tracking numbers.
Service Centers must notify petitioners whose cases have been forwarded to the California Service Center that their case has been forwarded for adjudication under the terms of decisions by the AAO and this field memorandum. This notification shall be by the Form I-797 transfer notice generated when transfer is made in CLAIMS and electronic jurisdiction is transferred to the California Service Center. In addition, petitioners shall be advised that if they seek to withdraw a petition and file a new petition and the request for withdrawal, clearly marked in red marker “HOLD WITHDRAWAL” to the above address by July 30. After July 30, new petitions should be filed with the Service Center with jurisdiction over the new commercial enterprise for adjudication under normal procedures.
FORM I-526 ADJUDICATION
The “tiger team” is to adjudicate the approximately 680 initial cases currently being held, namely, newly field Form I-526 petitions, Form I-526 petitions approved by the Service but returned by the Department of State for revocation before visa issuance, and related approved Form I-526 petitions with pending Form I-485 adjustment of status applications.
Aliens who wish to withdraw a petition from the hold and file a new Form I-526 petition may proceed in two ways. First, in accordance with the May 21 field memorandum, an alien who withdraws a petition from the hold prior to the AAO decisions may file a new petition which, if it does not contain features that subject it to the hold, will be adjudicated under standard procedures. Assuming that there is no need for additional evidence, a certification for review, or other questions, the new petition will be adjudicated within the average processing time for this type of petition (currently 60 days). This group of petitions will be processed in chronological order by date of receipt (or date of fee acceptance) in accordance with O.I. 103.2(q).
Second, the Service continues its responsibility to promote job- creating and job-preserving investments and is permitting a petitioner to withdraw a petition within the hold after July 1, and file a new petition which clearly identifies the alien’s withdrawn petition. Such newly filed petitions will be reviewed by the “tiger team” in the order in which they are filed. The “tiger team” may approve or deny petitions unless they require additional evidence. Where additional evidence is needed in order to complete the adjudication, the “tiger team” shall issue a Request for Evidence, directing the alien to submit the evidence to the Service Center having jurisdiction over the new commercial enterprise, and return the file to that Service Center.
If necessary, the “tiger team: shall forward for advice any new questions about eligibility under the law and the regulations that arise from complex financial or economic arrangements to Headquarters Adjudication (Business and Trade Services Branch) and return the file to the appropriate Service Center to complete the adjudication. A request for advice shall include a memorandum discussing the specific issues which need to be addressed, relevant research, background or other information, and shall, if possible, provide clear recommendations.
FORM I-829 ADJUDICATION
The “tiger team” shall adjudicate petitions on Form I-829 to remove conditions, filed at the end of an alien’s 2-year period of conditional resident status, and in the hold, in accordance with the AAO decisions. In this regard, the Office of Legal Counsel of the Department of Justice has verified that, under the plain language of INA section 216A, the Service lacks authority to approve petitions to remove conditions for aliens who have entered the United States as conditional residents and whose petitions to remove conditions are subject to denial because they fail to meet the requirements of the law.
The Service, however, has determined that an alien whose Form I-829 petition fails to comport with the law may be provided with the opportunity to file, within 90 days of the date of the Notice of Intent to Terminate Status, a new petition that does not contain the defects in their original filing. Before a Notice of Intent to Terminate Status is sent, the petition should be screened to determine eligibility to file a new Form I- 526. Eligible aliens shall be directed to file new petitions to the Service Center with jurisdiction over the new commercial enterprise. This process is not available to aliens whose petitions to remove conditions are denied because the business in which the alien originally invested has ceased to operate or has failed to create or preserve 10 full-time jobs in the United States or to an alien seeking to invest in a different business. This process is available only where the petition involves aspects of the December 19, 1997, General Counsel legal memorandum.
If an alien is determined to be eligible, the Notice of Intent to Terminate Status shall advise the alien that, if a new petition is filed within the specified time period and if it is approved, the alien will be deemed to have remained in lawful conditional status, provided the alien has withdrawn the old petition to remove conditions and agreed to file an immigrant visa application with the Department of State to begin a new 2- year period of conditional resident status.
The Notice of Intent shall further advise the alien that, as section 245(f) of the INA prohibits these immigrant investor visa conditional residents from adjusting status in the United States, he or she must apply for an immigrant visa at a consular post abroad in order to initiate the new 2-year period of conditional resident status. In addition, the alien must be advised that, to establish eligibility for this process, the alien must demonstrate that he or she: 1) fully complied with the business plan in the original initial petition; 2) sustained the investment throughout the 2-year conditional resident period; 3) was denied the request to remove the conditions on his or her status because his or her original petition did not comply with the law and the regulations, and ; (4) is basing the new petition on the same job-creating or job-preserving United States business as the original petition.
LAWFUL PERMANENT RESIDENTS (EB-5 INVESTORS) WHOSE CONDITIONS HAVE BEEN REMOVED BY THE IMMIGRATION AND NATURALIZATION SERVICE
Absent a finding of fraud or other improper acts, the Service will not initiate recession proceedings in the cases of aliens who have obtained lawful permanent residents status (without conditions) based on petitions that may have not complied with the statue and regulations, as discussed in the General Counsel’s memorandum of December 19, 1997.
Finally, Service officers are reminded that, as stated in the field of memorandums of March 11 and May 21, 1998, immigrant investor petitions not subject to the hold should be adjudicated in the same manner as any other newly filed petition; they are not covered by this field memorandum. Pursuant to the May 21 field memorandum, petitioners whose cases do not fall within the terms of the hold are to be advised of this determination through routine procedures.
Questions regarding these field instructions, may be directed to Katharine A. Lorr at HQ ADN, (202) 514-5014. The Offices of Naturalization Operations and Field Operations have concurred with this memorandum.