DOS Cable on Return of EB-5 Petitions to INS
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY BUJUMBURA 5406
AMEMBASSY GUANGZHOU 4327
AMCONSUL CURACAO 2307
AMEMBASSY LILONGWE 9929
Unclas Section 01 of 02 State 029305 Visas
E.O. 12958: N/A
Tags: CVIS
Subject: Return of EB-5 Petitions to INS
Ref: 97 State 241877
1. Summary: This is an action cable, see paragraph 4. Posts are instructed to return certain EB-5 (immigrant investor) petitions to the Immigration and Naturalization Service (INS) for reconsideration. This tasking has been cleared with M/P (Sep). End summary.
2. In Reftel the Visa Office informed posts of a review being conducted by INS involving certain types of immigrant investor (EB-5) programs. The Visa Office instructed posts to suspend processing of all EB-5 cases involving such programs. That review is ongoing at this time. Nevertheless, after careful consideration, the Visa Office has determined that the most appropriate course of action is to instruct posts to return to the approving office of INS all petitions which fall within our description of cases under review contained in Reftel.
3. The Visa Office is taking this step for several reasons. First, return of questionable petitions to INS is the usual procedure to be followed by consular officers when serious questions are raised as to the legal sufficiency of approved petitions. While the current situation does not fit precisely into the usual criteria for return of petitions as described in the FAM, the serious questioning by INS itself of an entire class of petitions appears sufficient to justify returning them. Second, having consular posts continue as to hold the petitions will only result in confusion as to which agency is responsible for resolving the outstanding issues. Finally, having posts continue to hold the petitions will likely result with an increasing frequency in requests by applicants and their sponsors for special exceptions or other favorable treatment which in fairness to all other applicants, no post could honor.
4. Therefore, Posts are instructed to immediately identify all EB-5 petitions affected by Reftel and return them to the approving office of INS under cover of a brief memorandum describing the reason for the return and also describing any evidence submitted to the consular officer by an applicant in an attempt to overcome consular objections to the petition. A copy of this cable should be attached as well. The cases returned should be flagged as follows: “(name of embassy or consulate), Request for Review and Revocation.” Per outstanding instructions (9 FAM 42.43, N3) posts should retain copies of each petition and all documents attached to it. Petitions should be returned in batches by air courier, i.e., one courier shipment to each approving office containing all petitions approved by that office. The INS receiving office should be informed of the courier receipt number so that if necessary it may trace the package. Packages should be addressed as follows:
Sandra Palarski
U.S. INS Nebraska Service Center
P.O. Box 87526
Lincoln, Nebraska 68501-2521
Michael Lebow
U.S. INS Texas Service Center
P.O. Box 852136
Mesquite, Texas 79195-2135
Mary C. Agnelly
Assistant Center Director
U.S. INS California Service Center
P.O. Box 10526
Laguna Nigel, California 92607-0526
Todd Reader
U.S. INS Vermont Service Center
75 Lower Welden Street
P.O. Box 9360
St. Albans, Vermont 05479-9360
5. The Visa Office EAD indicated in a previous cable (97 State 212704 Notal) to several posts which have large number of EB-5 petitions that posts could accept evidence of INS approved changes in the structure of certain investment arrangements as “clarifying” outstanding issues. Such clarification might then result in visa issuance. This was so even if the original investment agreement had been determined by INS to be insufficient under existing regulations. However, the visa office withdraws its acceptance of that procedure. We now are of the opinion that the only way to ensure the complete legal sufficiency of these complicated investment agreements and, consequently, the unquestionable approval of a petition, is to have INS review each petition containing a program element which has been called into question and either revoke it and have a new petition approved in its place, or reaffirm it based upon evidence or amendments acceptable to INS adjudicators. In doing so we hope to remove any possibility of consular officers exercising adjudicative authority which properly belongs to INS. In any event the number and diversity of the investment programs which we believe to be affected by the current review would appear to preclude the issuance by INS of any single set of instructions which could be uniformly applied by consular officers to “clarify “ all outstanding issues in every case. Therefore, we believe it is more prudent simply to allow INS to decide in the normal course of its ordinary review/revocation procedures how to “clarify” these petitions.
6. Questions regarding these instructions or the petitions in question should be referred to CA/VO/L/A, attention: Melissa Arkley.
7. Minimize considered.
Strobe Talbott