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AILA Doc. No. 19080202 | Dated November 27, 2019
This page supplements Kurzban's Immigration Law Sourcebook, and contains corrections, clarifications, and selected updates to the 16th Edition.
Click on a page number to see the update:
88-89 (Ch. 3) | 97 (Ch. 3) | 138 (Ch. 3) | 153 (Ch. 3) | 223 (Ch. 3) | 355 (Ch. 3) | 488 (Ch. 3) | 540 (Ch. 3) | 541 (Ch. 3) | 650 (Ch. 3) | 754 (Ch. 4) | 795 (Ch. 4) | 836 (Ch. 4) | 838 (Ch. 4) | 939 (Ch. 4) | 1025 (Ch. 5) | 1064 (Ch. 5) | 1116 (Ch. 5) | 1178 (Ch. 5) | 1200 (Ch. 5) | 1232-33 (Ch. 5) | 1312 (Ch. 6) | 1340 (Ch. 6) | 1457 (Ch. 7) | 1467 (Ch. 7) | 1487-88 (Ch. 7) | 1562 (Ch. 7) | 1570 (Ch. 7) | 1672 (Ch. 8) | 1702 (Ch. 8) | 1946-47 (Ch. 10) | 2163 (Ch. 13) | 2167 (Ch. 13)
|p. 88-89 (Ch. 3, ¶ III.B.1.)||Admissibility
Replace paragraph 1 with the following:
1. Persons Likely to Become a Public Charge
INA §212(a)(4), 8 USC §1182(a)(4); 8 USC §1601-46; 8 CFR §§212.20-.23, 213.1, 214.1(a)(3)(iv), 245.4(b), 245.23, 248.1; 84 FR 41292-508 (Aug. 14, 2019); 22 CFR §40.41; 9 FAM 302.8-2(B); H.R. Conf. Rep. 104-828, 104th Cong., 2d Sess. 240–42. The statute provides that a non-citizen who “is likely at any time to become a public charge is inadmissible.” Prior case law defined public charge as a person who “by reason of poverty, insanity, disease or disability would become a charge upon the public.” Gegiow v. Uhl, 239 U.S. 3 (1915). See Appendix F (p.2227) regarding public benefits.
1.1. DHS Regulations on Public Charge—USCIS published regulations on public charge effective Oct 15, 2019. 84 FR 41292-508 (Aug. 14, 2019); 8 CFR §212.20. The regulations define public charge at 8 CFR §212.21. The regulations and a public charge finding applies to AOS, E/S and C/S and if abroad under DOS guidelines to IVs and NIVs. The rule is not binding on DOJ (IJs/BIA) and not binding on DOS, although “it is DHS’s understanding that DOS will update its FAM to ensure consistency with the DHS rule.” 84 FR at 41315. In regard to E/S and C/S DHS is not applying the new rule as a ground of inadmissibility but as “a new condition for approval of extension of stay and change of status applications—that the applicant establish that the alien has not received since obtaining the nonimmigrant status.…one or more public benefits for more than 12 months in the aggregate within any 36-month period….Therefore DHS removed the future looking aspect of [the public charge] condition and will not request applicants for an extension of stay or change of status to submit a Form I-944.” 84 FR at 41329. For application of public charge by visa category and status, see 84 FR at 41336-46 at Tables 2-5.
1.2. Receipt of Public Benefits—A non-citizen is deemed to be a public charge, 8 CFR §212.21(a), if he is receiving one or more of the following public benefits for more than 12 months in the aggregate within any 36 month period (8 CFR §212.21(b)(1)-(6)):
(1) Any federal, state, local, or tribal cash assistance for income maintenance (other than tax credits) including (i) Supplemental Security Income (SSI) under 42 USC §1381 et seq.; (ii) Temporary Assistance for Needy Families (TANF) under 7 USC 601, et seq.; (iii) federal, state, or local cash benefit programs for income maintenance (often called “General Assistance in state context);
(2) Supplemental Nutrition Assistance Program (SNAP) under 7 USC 2011-2036c;
(3) Section 8 Housing Assistance under the Housing Choice Voucher Program under 42 USC 1437f;
(4) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8;
(5) Medicaid under 42 USC 1396 et seq. except for (i) emergency medical benefits under 42 USC 1396b(v)(2)-(3) and 42 CFR §440.255(c); (ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq.; (iii) school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined by state or local law; (iv) benefits received by a non-citizen under the age of 21 or a woman during pregnancy (including the 60 day period beginning the last day of pregnancy);
(6) Public Housing under Section 9 under the US Housing Act of 1937.
(7) Double Counting—Receipt of more than one of the above public benefits in a one-month period will count as receipt of one month for each benefit so that receipt of two benefits in one month, for example, would count as receipt of benefits for two months. 8 CFR §212.21(a).
(8) Not Counted As Public Benefits for Public Charge—Many programs were not included in the list of public benefits including: WIC, School Breakfast/Lunch Programs, Head Start, Pell Grants, CHIP, D-SNAP (Disaster Supplemental Nutrition Assistance), Social Security Disability Insurance, 84 FR at 41386-92, and health insurance for which the non-citizen receives subsidies in the form of premium tax credits under the Affordable Care Act.
1.3. Exceptions to Receipt of Public Benefits—Receipt of a public benefit will not result in a finding of inadmissibility if at the time of receipt of the benefit or at the time of filing or adjudication of an AOS, E/S, or C/S the person:
(1) was enlisted in the U.S. Armed Forces under 10 USC 504(b)(1)(B) or 10 USC 504(b)(2);
(2) was actively serving in Ready Reserve;
(3) was the spouse or child of such a person;
(4) was exempt from public charge inadmissibility under 8 CFR §212.23(a) (refugees, asylees, Amerasian immigrants, Afghan and Iraqi interpreters, Cuban and Haitian entrants, Cuban Adjustment applicants, NACARA and HRIFA applicants, Lautenberg parolees, SIJs, registry applicants, TPS, A-1/A-2, C-2/C-3 (relating to UN and foreign government officials), G-1 through G-4 (international organization NIVs), NATO-1 through NATO-4 and NATO-6, T, U and VAWA visa applicants under certain circumstances (84 FR at 41298), American Indians born in Canada, Texas Band of Kickapoo Indians, Indochinese refugees, Polish and Hungarian parolees ). The comments indicate that the exemption not only applies to asylum or refugee status but to the application for AOS subsequent to a grant of asylum/refugee status. 84 FR at 41324 [the public charge rule “does not apply to asylum applicants, those granted asylum (asylees), and those seeking to adjust their status to that of a lawful permanent resident based on their asylee or refugee status”]
(5) filed the appropriate affidavit for exemption under an employment based category 8 CFR §212.23(b). However, “Congress did not exempt employment based EB-1A or EB-1B categories, or those seeking an NIW from the public charge ground of inadmissibility.” 84 FR at 41334-35.
(6) received a waiver due to S visa status
(7) was in any other category in a law that exempts public charge inadmissibility
(8) was a child of a US citizen whose admission will result in automatic citizenship under INA §320 including adopted children
(9) was a child entering the US for purposes of attending an interview for citizenship under INA §322
1.4. Receipt of a Public Benefit Is A Requirement for a Finding of Public Charge—8 CFR 212.21(e). The applicant must actually receive the benefit to be considered a public charge for receipt of a public benefit. Applying for a benefit or certification for future receipt of a public benefit does not constitute receipt, although it may suggest a likelihood of future receipt under the totality of the circumstances test. But a non-citizen’s “receipt of, application for, or certification for public benefits solely on behalf of another individual does not constitute receipt of, application for, or certification for such alien.” See also 84 FR at 41334 [“if an alien is the person receiving benefits on behalf of another (for instance as a parent, legal guardian) the alien will not be considered to have received, been certified for, or applied for such public benefit”]. In discussing the rule’s impact DHS stated the following: “Because DHS will not consider receipt of public benefits by U.S. citizens and aliens not subject to public charge inadmissibility, the receipt of public benefits by these individuals will not be counted against or made attributable to immigrant family members who are subject to this rule. Accordingly, DHS believes that it would be unwarranted…to disenroll from a public benefit program or forego enrollment in response to this rule when such individuals are not subject to the rule.” 84 FR at 41313. In regard to receipt of public benefits by those entitled to such federal or state benefits, “DHS also disagrees with commenters that this rule changes federal and state decision-making regarding aliens’ access to public benefits. The rule itself does not prohibit any eligible alien or citizen from accessing public benefits for which they qualify.” 84 FR at 41317.
1.5. Totality of the Circumstances—8 CFR §212.21(c), 8 CFR §212.22; 84 FR at 41396-401; FAM 302.8-2(B)(3). To determine likelihood of becoming a public charge in the future, the officer must determine whether under the “totality of the circumstances” it is “more likely than not” that “at any time in the future” the applicant will be a public charge. 84 FR at 41392-93. In DHS’ view the standard does not require a finding that the person will be a public charge indefinitely but only that s/he is likely to become a public charge any time in the future without remaining a public charge indefinitely. 84 FR at 41352. A determination that a person is a public charge because of the receipt of public benefits as defined supra regarding the acceptance of 12 months of public benefits over a 36 month period does not mean that the person is automatically inadmissible as likely to be a public charge. Rather, it will be considered a heavily weighted negative factor. 84 FR at 41358 [“As with the proposed rule, current receipt or past receipt of more than 12 months of public benefits in the aggregate, in any 36-month period will not necessarily be dispositive in the inadmissibility determination; i.e. in determining whether the alien is like to become a public charge at any time in the future, but will be considered a heavily weighted negative factor in the totality of the alien’s circumstances.”]
The officer is charged with “weighing all factors that are relevant to whether the alien is more likely than not at any time in the future to receive one or more public benefits as defined in 8 CFR 212.21(b) for more than 12 months in the aggregate within any 36 month period.” 8 CFR §212.22(a). “The presence of a single positive or negative factor or heavily weighted negative or positive factor, will never, on its own, create a presumption that an applicant is inadmissible…” 84 FR at 41295. The minimum factors that must be considered under 8 CFR §212.22(b)(1)-(7) are the person’s:
(1) Age—Does his age impact the person’s ability to work? It would be a negative factor if the person were younger than 18 or older than 61 and otherwise a positive factor. 84 FR at 41295, 41401-05.
(2) Health—Has the person been diagnosed with a condition likely requiring extensive medical treatment or institutionalization? 84 FR at 41405-12. See infra in this Section, Health Insurance Required for Immigrants, 2 at ______.
(3) Family status—Does household size as defined under 8 CFR §212.21(d) makes it more likely than not that he will be a public charge? 84 FR at 41412-13.
(4) Assets, resources and financial status—Is household gross income at least 125% of poverty guidelines based upon household size defined in 212.21(d)? If less, look to other assets? Does person have sufficient assets to cover reasonably foreseeable medical costs? Does person have any financial liabilities? Has the person applied for, been certified to receive, or receive public benefits? Has the person disenrolled in the public benefit or proof that he does not or would not qualified for such benefit, 84 FR at 41299? Has person received fee waivers for immigration benefits? 8 CFR §212.22(b)(4)(ii)(F), 84 FR at 41299 [fee waivers for benefits that do not include public charge are not considered], Credit history? See generally 84 FR at 41413-29.
(5) Education and Skills—Is education/skills adequate to obtain or maintain lawful employment? Employment history? Tax transcript for three years or other credible evidence? High school diploma? Proficient in English and other languages? Is the person a primary care giver for a child or an elderly, ill or disabled person in his household as defined under 8 CFR §§212.21(f), 212.22(b)(5)(ii)(E), 84 FR at 41298 [“This factor is intended to take into consideration difficult-to-monetize contributions by aliens who may lack current employment or an employment history due to their full time, unpaid care of household members”]. 84 FR at 41429-38.
(6) Prospective immigration status and Expected Period of Admission—If NIV, the anticipated period of temporary stay?
(7) An I-864 Affidavit—Sponsor’s annual income and resources? Relationship to applicant? Has sponsor submitted other I-864s? The affidavit of support and the likelihood the affidavit sponsor would actually provide support is a factor to determine the likelihood that the non-citizen would become a public charge. 8 CFR §212.22(b)(7). However, the existence of the I-864 by itself does not preclude a public charge finding. 84 FR at 41320, 41438-41.
Heavily weighted negative factors, 8 CFR §212.22(c)(1); 84 FR at 41441-46.
(1) Person is not a full-time student and is authorized to work but is unable to demonstrate current employment, recent employment history, or a reasonable prospect of employment
(2) Has received in the past or has been certified or approve to receive one or more public benefits as defined in 212.21(b) for more than 12 months in the aggregate within any 36-month period, 84 FR 41297
(3) Has been diagnosed with a medical condition requiring extensive treatment or institutionalization and is not insured nor has the ability to pay for reasonable foreseeable medical costs
(4) Prior finding of inadmissibility or deportability for public charge by an IJ/BIA.
Heavily weighted positive factors, 8 CFR §212.22(c)(2); 84 FR at 41446-50.
(1) Household income 250% above poverty guidelines
(2) Authorized to work and has current employment in a legal industry where income is 250% above poverty guidelines
(3) Private health insurance for the expected period of admission but it does not include “health insurance for which the alien receives subsidies in the form of premium tax credits under the Affordable Care Act” 84 FR at 41449. See infra in this Section, Health Insurance Required for Immigrants, 2 at ______.
Benefits received prior to Oct. 15, 2019, 8 CFR §212.22(d) —receipt of public benefits defined in the regulations prior to Oct. 15, 2019 will be considered a negative factor but not “any other [kinds of ] public benefits” that were received prior to that date. This means that an officer may consider: (1) any receipt of cash public benefits that were received prior to Oct. 15, 2019 as designated in the original INS Interim Field Guidance, 84 FR at 41297 n. 18 [“DHS will not apply this rule to benefits received before the effective date of the rule, except for those benefits that would have been considered under the 1999 Interim Field Guidance”], 84 FR at 41318; and (2) receipt of cash and non-cash public benefits as defined in the new rule even if they were less than the 12/36 month thresholds. 84 FR at 41297 [“Under the final rule, adjudicators will consider and give appropriate weight to past receipt of public benefits below the single durational threshold…”].
1.6. Law Prior to Regulations—The law, prior to the regulations, included the same factors including whether the alien has received public assistance, his or her age, capacity to earn a living, health, family situation, work history, affidavits of support and physical and mental condition. Matter of A-, 19 I&N Dec. 867 (Comm. 1988) [unemployed woman who is young and has no physical or mental impediments that would affect her ability to earn a living is not a public charge]. See also Matter of Vindman, 16 I&N Dec. 131 (RC 1977); Howe v. United States ex rel. Savitsky, 247 F. 292 (2d Cir. 1917); Ex Parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir. 1922). Under IIRIRA §531(a), INA §212(a)(4)(B)(i), Congress mandated that the following factors be taken into account in deciding public charge: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. Former guidance also at INS, Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 FR 28689 (May 26, 1999) [person “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense” but was not understood to include receipt of non-cash benefits such as Medicaid, SNAP/food stamps, housing vouchers].
1.7. Affidavit of Self-Sufficiency—8 CFR §245.4(b). For purposes of meeting the requirements of the public charge provision, an applicant for AOS must submit a Form I-944 declaration of self-sufficiency as part of his or her application.
1.8. DOS Regluations on Public Charge—22 CFR §40.41; 84 FR 54996-015 (Oct. 11, 2019). DHS issued interim final rules that apply to NIVs and IVs, but adopts all exemptions from the public charge provisions of all persons and categories found at 8 CFR §212.23(a), 84 FR at 54996; 22 CFR §40.41(a). See also 9 FAM 302.8-2(A), 302.8-2(B)(6). DOS rulemaking is designed “to align the Department’s standards with those of the Department of Homeland Security” to avoid inconsistent outcomes. 84 FR at 54996, 55000-01. Like DHS, DOS is using the “totality of the circumstances” approach at the time of the visa application and will look, at a minimum, at the Congressional mandated criteria of “age, health, family status, assets, resources, financial status, education and skills.” 22 CFR §40.41(a); 9 FAM 302.8-2(B)(2). The standard that will be applied is the preponderance of the evidence standard (interpreting “likely” to be “more likely than not,” i.e. “probable” see 84 FR at 55001), and no one factor, with the exception of the lack of a sufficient I-864 where required, will make the person more likely than not to become a public charge. 22 CFR §40.41(a). Conversely, DOS has already adopted the position that an Affidavit of Support (I-864) by itself may not satisfy the public charge grounds as they are distinct requirements that must be separately satisfied. 9 FAM 302.8-2(B)(3) ¶b; Cable, DOS (18-State-942) (Jan 4, 2018), AILA Doc. No. 180122 [holding for the first time in Jan. 2018 that a sufficient affidavit of support is only “one factor in the totality of the applicant’s circumstances”], but the affidavit of support will be a positive factor in the totality of the circumstances. 22 CFR §40.41(a)(7) A public charge determination is prospective and although past or current receipt of public assistance is relevant the “determination must be made on the present circumstances.” 9 FAM 302.8-2(B)(1)(f)(1)(b). The Department has recognized, however, that consular officers “will consider whether any identified third party is willing and able to financially support” the person while in the US. 22 CFR §40.41(a). A third party could be, for example, a parent or child of a B-1/B-2 applicant. 84 FR at 55001.
The latest updated FAM provisions and the interim DHS regulations suggest that consular officers will be much tougher on public charge than in the past when applying Congressionally mandated criteria. Here are the references:
(1) Age: 22 CFR §40.41(a)(1); 9 FAM 302.8-2(B)(2)(d). Person’s age between 18 and 62 is a positive factor. Under 18 or over 62 (above early retirement) is a negative factor. However, consular officers may consider other factors for minors such as support provided by parents, legal guardians or other sources 22 CFR §40.41(a)(1), and an offer of employment of a 17 year old or having education or living expenses paid by another person could be positive factors. 84 FR at 55001. But a person over 62 may have to overcome the adverse consequence of being unable to work or the potential for healthcare related costs. 22 CFR §40.41(a)(1).
(2) Health: 22 CFR §40.41(a)(2); 9 FAM 302.8-2(B)(2)(b). Consider whether the person has been diagnosed with a medical condition requiring extensive medical care or institutionalization that would interfere with the ability to work, attend school, or care for herself. Consular officers will consider panel physician reports where required. A Class B medical condition regarding a communicable disease of public health significance is not alone a determinative factor. The consular officer will consider evidence of health insurance or ability to pay medical expenses, but the lack of health insurance alone would not make a person more likely than not to be a public charge. 84 FR at 55002. The Presidential Proclamation 9945 (Oct. 4, 2019), 84 FR 53991 that bars entry into the U.S. of an immigrant (with certain exceptions) who is not covered by approved health insurance within 30 days of his or her entry into the U.S. unless he or she possesses the financial resources to pay for reasonably foreseeable medical costs does not appear to apply to AOS but only to immigrant visas. See infra in this Section, Health Insurance Required for Immigrants, 2 at ______.
(3) Family Status: 22 CFR §40.41(a)(3); 9 FAM 302.8-2(B)(2)(c). Household size is a positive factor if the family size makes it unlikely that the person would receive public benefits at any time in the future. 84 FR at 55002. This factor will be considered along with the factor concerning assets, resources and financial status such as the gross income of the household.
(4) Assets, Resources, and Financial Status. 22 CFR §40.41(a)(4). Positive factor if person’s annual gross income is 125% of the Poverty Guidelines (or 100% if on active duty other than training). If less than 125/100 % must consider the total value of the household assets and resources and determine if they are at least 5 times the difference between household gross income and 125% of Poverty Guidelines. However, if the person is the spouse or child of a USC then it is three times the difference. If the amount is reached it is a positive factor. Assets and other factors include: annual gross income; cash assets; non-cash assets that can be converted to cash within 12 months; financial liabilities; receipt or approval to receive public benefits on or after Oct. 15, 2019; received a fee waiver from DHS on or after Oct. 15, 2019; private health insurance. Income received from public benefits and income from illegal activities cannot be considered. The fee waiver does not apply where the applicant’s status has materially improved since the waiver or where the waiver was granted for a petition/application not covered by public charge. 84 FR 55002. In regard to health insurance, note, infra at 2 ____ reference to Presidential Proclamation 9945, 84 FR 53991-94 (Oct 4, 2019) mandating health insurance (with certain exceptions) for all immigrant visas. Unlike DHS rules, DOS did not include credit history and credit scores “primarily because visa applicants generally would not have an active or recent credit history in the United States.” 84 FR at 55003. The rule, unlike previous FAM guidance only focuses on receipt of public assistance by the applicant and does not include receipt of public benefits by family members in the household. Id.
(5) Education and Skill. 22 CFR §40.41(a)(5). Look to history of employment, education level (high school diploma or equivalent), any occupational skills, certifications or licenses, English and other language proficiency. Another factor would be if the person was a primary care provider 18 years or older caring for the well-being of a minor, elderly, ill or disabled person in the household. If a person seeks to demonstrate future employment to refute any inference of public charge, he may submit an offer of employment. The submission of an offer of employment must be sworn to and subscribed before a notary and must contain the signatory’s title. 22 CFR §40.41(f). Under the education and work experience criteria DOS officers are directed to carefully scrutinize I-140 approvals and labor certifications including reviewing (i) whether the applicant’s education and work experience are compatible with the duties in the job offered; and (2) whether the position is permanent and meets the prevailing wage. 9 FAM 302.8-2(B)(2)(e).
(6) Visa Classification Sought. 22 CFR §40.41(a)(6). This factor will vary depending upon the visa sought. For example, a consular officer’s determination of a B-1 who plans to attend a week-long business meeting is different than an H-1B who will be in US for years. Consular officers will look at the visa classification and the purpose and duration of travel because the status sought by the applicant “will be highly relevant” for the totality of the circumstances determination. 84 FR at 55003-04.
(7) Heavily Weighted Factors—22 CFR §40.41(a)(8)
(a) Heavily Weighted Negative Factors—22 CFR §40.41(a)(8)(i).
(i) Not a full time student and unable to establish he or she is currently employed, has recent employment history, or a reasonable prospect of future employment;
(ii) Has received or been certified or approved to receive one or more public benefits for more than 12 months in the aggregate within any 36-month period (with receipt of two benefits in one month counting as two months) beginning no earlier than Oct. 15, 2019 or prior to adjudication of the visa application, whichever is later;
(iii) Has been diagnosed with a medical condition likely to require extensive medical treatment or institutionalization or that will interfere with the person’s ability to provide for himself or herself, attend school or work, and does not have health insurance or financial resources to pay for reasonably foreseeable medical costs
(iv) Has previously been found inadmissible or deportable as a public charge
(b) Heavily Weighted Positive Factors—22 CFR §40.41(a)(8)(ii)
(i) Has income, assets, resources or support at least 250% above the Poverty Guidelines for household size [cannot consider income from public benefits]
(ii) Applicant is authorized to work and is currently employed with an annual income of at least 250% above the Poverty Guidelines
(iii) Has private health insurance (other than tax credits through Affordable Care Act)
(c) Benefits Received Prior to Oct. 15, 2019—22 CFR §40.41(a)(9). Negative factor, but not a heavily weighted negative factor is receipt of cash assistance for income maintenance including SSI, TANF, State and local cash assistance programs for income maintenance (“General Assistance”), and programs (including Medicaid) supporting persons who are institutionalized for long-term care that were received or certified for receipt before Oct. 15, 2019.
(8) Definition of Public Charge and Public Benefits are the same as DHS. 22 CFR §40.41(a)(9)(b),(c)
1.9. Public Charge Bond—8 CFR §213.1; 84 FR at 41450-57. A person found inadmissible as a public charge may, if otherwise admissible, submit a public charge bond in the discretion of DHS. If a person has one or more heavily weighted negative factors as defined in 212.22 DHS “generally will not favorably exercise discretion to allow submission of a public charge bond.” A surety bond under 8 CFR §103.6 or a cash or cash equivalent bond may be accepted. The minimum bond amount is $8,100 which will be annually adjusted using CPI-U. The bond will remain in effect until the person naturalizes or otherwise obtains USC, permanently departs the US, dies, reaches his or her 5 year as an LPR, or changes immigration status to one not subject to public charge inadmissibility. Obligors may be substituted.
1.10. Affidavit of Support (I-864)
8 CFR pt. 213a, 22 CFR §40.41; AFM at 20.5; 71 FR 35732–57 (June 21, 2006); 62 FR 54346 (Oct. 20, 1997); Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 (June 27, 2006), AILA Doc. No. 06063013; 9 FAM 302.8-2(B)(2)(b)–(e), 302.8-2(B)(4).
In order to obtain LPR status, the beneficiary must submit an affidavit of support (I-864) by a sponsor. Customary affidavits of support (I-134) traditionally carried some weight in determining public charge even though they have not been considered to create a legal obligation. Matter of Kohama, 17 I&N Dec. 257 (AC 1978), but now under INA §213A, I-864 affidavits are required for most family-based and some employment-based cases. The submission of an I-864 is a positive factor in determining public charge but is not considered sufficient alone to determine public charge either before USCIS or DOS. 8 CFR §212.22(b)(7); 22 CFR §40.41(a)(7); 9 FAM 302.8-2(B)(3) ¶b; Cable, DOS (18-State-942) (Jan 4, 2018), AILA Doc. No. 180122 [holding for the first time in Jan. 2018 that a sufficient affidavit of support is only “one factor in the totality of the applicant’s circumstances”]; 84 FR 41320, 41438-41. Conversely, the failure to submit an I-864 would be determinative of a lack of public charge. 22 CFR §40.41(a). See also Tadevosyan v. Holder, 743 F.3d 1250, 1254-57 (9th Cir. 2014) [reversed denial of motion to reopen where BIA’s improperly determined that petitioner had not submitted sufficient evidence in support of his I-864 to overcome a public charge claim].
(1) Effective Date for I-864 and Relationship to New Public Charge Regulations—The affidavit of support provisions do not apply to persons who applied for IVs (i.e., signed an OF-230 in front of consular officer) before Dec. 19, 1997. Cable, DOS, 97-State-238374 (Dec. 22, 1997), reprinted in 75 No. 1 Interpreter Releases 3, 7–8 (Jan. 5, 1998). The new public charge regulations consider the affidavit of support and the likelihood the affidavit sponsor would actually provide support as a factor to determine the likelihood that the non-citizen would become a public charge. 8 CFR §212.22(b)(7). However, the existence of the I-864 by itself does not preclude a public charge finding. 84 FR at 41320, 41438-41.
(2) The I-864 Sponsor—INA §213A(f), 8 CFR §213a.2(c). The sponsor must be a USC or LPR, 18 years of age, domiciled in U.S., and have an income 125% above the federal poverty line, INA §213A(f)(1). The sponsor may also be a conditional resident. Memo, Aytes, (June 27, 2006), supra at p. 5 (d)(1). In family-based cases, the sponsor must be the petitioning family member. This sponsorship requirement includes persons seeking residency as orphans (unless the orphan would become a USC upon entry under INA §320) and adjustment after admission on a K visa. 8 CFR §213a.2(a)(2)(i)(A). Where more than one petition has been filed, the sponsor must be the petitioner on the petition used for residency. 8 CFR §213a.2(b)(1). The I-864 requirement also applies to employment-based cases, but only where a relative filed the I 140 petition or where the relative has a “significant ownership interest,” in the entity that filed the petition. “Relative” is defined as a husband, wife, father, mother, child, adult son or daughter, brother or sister. 8 CFR §213a.1. “Significant ownership interest” means 5% or more. 8 CFR §213a.1. However, if the relative who owns an interest in the company is not a USC or LPR, the I-864 is not required. 8 CFR §213a.2(b)(2); Cable, DOS, 98-State-042068 (Mar. 12, 1998), AILA Doc. No. 98031291. An I-864 is also not required if the relative is a brother or sister who is not a U.S. citizen. 8 CFR §213a.2(a)(2)(i)(C). All sponsors must be 18 years of age, but if under 18 can cure the improper filing by signing the I-864 again on or after his 18th birthday, before a decision on the IV or AOS application. 71 FR 35732, 35734 (June 21, 2006). In following-to-join cases, a person who meets the qualification of a sponsor may file the I-864 if the petitioning sponsor has died. Cable, DOS, 98-State-133584 (July 22, 1998), AILA Doc. No. 98072291.
(3) I-864 Does Not Apply to Certain Cases—The I-864 does not apply to employment cases other than those described in the preceding paragraph involving a relative. Similarly, the I-864 is not required for: (1) diversity immigrants; (2) special immigrants; (3) self-petitioning immigrants (widows/widowers, spouses/children subjected to battery or extreme cruelty, and certain children, spouses and grandparents under the USA PATRIOT Act); (4) refugees and asylees adjusting status; (5) Cuban adjustment applicants; (5) registrants under INA §249; and (6) persons who have already earned or can be credited with 40 quarters of coverage pursuant to SSA regulations. 9 FAM 302.8-2(B)(2)(d); Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 (June 27, 2006) at p.5, AILA Doc. No. 06063013; Memo, Cronin, Acting Assoc. Comm. Office of Program (70/23.1) (Mar. 7, 2000), AILA Doc. No. 00032704; USCIS Policy Memo, PM-602-0017, Approval of Petitions and Applications after the Death of the Qualifying Relative under the New Section 204(l) of the INA, (Dec. 16, 2010) at. 2, AILA Doc. No. 11011061 [I-864 not need where widow(er) I 130 petition coverts automatically to I 360]. An I-864 is not required in a family-based petition where the beneficiary (child of USC) will be immediately eligible to become a USC under INA §320(a). 8 CFR §213a.2(a)(2)(ii)(E); Memo, Cronin, Acting Ex. Assoc. Comm. Field Operations, HQ PGM 50/10 (May 17, 2001), AILA Doc. No. 01060821; Cable, DOS, 01-State-105806 (June 16, 2001), AILA Doc. No. 01061691 [children adopted abroad in IR-3 category do not require an I-864 affidavit]. An affidavit is also not required for a child admitted as an LPR under INA §211(a) and 8 CFR §211.1(b)(1) when returning with her LPR/USC parent. 8 CFR §213a.2(a)(2)(ii)(D). Derivative beneficiaries of employment-based petitions and K-1 and K-3 applicants do not require an I-864 until seeking AOS. An I-864 is not required if, at the time the applicant seeks an IV or AOS, he has already worked or can be credited with working 40 qualifying quarters of coverage. 8 CFR §213a.2(a)(2)(ii)(C); 71 FR 35732, 35733 (June 21, 2006); Memo, Cronin, Acting Ex. Assoc. Comm. Programs, HQPGM 70/21 (May 17, 2001), AILA Doc. No. 01060729. Quarters are calculated based on the amount of income earned during the course of the year, rather than the actual number of days worked within a given quarter. To prove 40 quarters of earnings an applicant may request certified earnings records from the Social Security Administration. Cable, DOS, 02-State-034687 (Feb. 22, 2002), AILA Doc. No. 02022233. A person may also be credited with quarters worked by his or her parent before he or she was 18. INA §213A(a)(3)(B)(i). Where the I-864 is not required because of credit for quarters worked, the I-864W must be filed.
(4) Household Wage-Earners (I-864A), Joint Sponsors, and Substitute Sponsors—The I-864 sponsor must demonstrate that he or she has income that meets at least 125% of the poverty guidelines, as described below. If the sponsor’s income is insufficient to meet the minimum income requirements, he or she may include a household wage-earner, who must sign an I-864A, or a joint or substitute sponsor, who must file his or her own I-864.
(a) Income Defined—Income for purposes of the I-864 means the total unadjusted income as shown on the tax return, before deductions. Total unadjusted income includes not only salary (if any) but also monetary gains from any other source, such as rent, interest, dividends, etc. 9 FAM 302.8-(B)(4)(f)(1).
(b) Household Wage-Earner on I-864A—The income of a household wage-earner (including the sponsor’s spouse and other persons claimed as dependents in the most recent tax year, whether or not they reside in the sponsor’s household, and other relatives (father, mother, adult son, adult daughter, brother or sister) who have the same principal residence as the sponsor) may be included if they are at least 18 years old. The household member need not be a USC or LPR. 8 CFR §213a.2(c)(2)(i)(C)(1); 8 CFR §213a.1 (defining “Household size”) “Household income” may include the income of the intending immigrant if he or she is the sponsor’s spouse or has the same principal residence as the sponsor, and the income is the result of “lawful employment in the United States” or from “some other lawful source” that will continue to be available after LPR status is acquired. 8 CFR §213a.1. In order to have their income counted, household members are required to file an I-864A, which is a written contract between the sponsor and them, providing that they will be jointly and severally liable for any reimbursement obligation that the sponsor may incur. 9 FAM 302.8-2(B)(6)(b)(1).
(c) Joint Sponsor—If the sponsor cannot meet the minimum-income requirements, he or she may also seek a joint sponsor. The joint sponsor must be at least 18 years of age, be a USC or LPR, and be domiciled in the United States. 8 CFR §213a.2(c)(1). The joint sponsor must file a separate I-864 and must meet the minimum income requirements separate and apart from the sponsor. 8 CFR §213a.2(c)(1)(i). The joint sponsor’s household income must equal at least 125% of the Poverty Guidelines for the joint sponsor’s household size unless he is on active duty in the Armed Forces and the immigrant is his spouse or child, in which case, he need only have income equal to 100% of the Poverty Guidelines. 8 CFR §213a.2(c)(2)(iii)(C). The sponsor and joint sponsor cannot pool their incomes and an intending immigrant may not have more than one joint sponsor. 71 FR 35732, 35734 (June 21, 2006). However, it is not necessary for all derivative beneficiaries to have the same joint sponsor and a family may be divided so that there are joint sponsors for different family members. 8 CFR §213a.2(c)(2)(iii)(C); 71 FR 35732, 35734–35 (June 21, 2006). There may not be more than 2 joint sponsors for any family group. 8 CFR §213a.2(c)(2)(iii)(C).
(d) Substitute Sponsor—If the petitioner dies before the intending immigrant obtains his IV or AOS in a family sponsored case, a substitute sponsor, under certain conditions, is permitted. 8 CFR §213a.2(c)(2)(iii)(D); 71 FR 35732, 35735 (June 21, 2006). See also in this section “Death of the Sponsor,” ¶ (7) (p.97), infra.
(e) Withdrawing Sponsorship—8 CFR §213a.2(f). A sponsor may withdraw the I-864 before the IV is issued or AOS granted but must do so in writing. Once the AOS is issued the sponsor remains obligated. The same is true of a sponsor for an IV. However, in the IV context, a sponsor may also end his or her obligation if she withdraws the visa petition in writing and notifies the DOS officer who issued the visa of the withdrawal. 8 CFR §213a.2(f)(1).
(f) Sponsorship in K-1 Marriage AOS Cases—In Matter of Song, 27 I&N Dec. 488 (BIA 2018) the BIA ruled that an fiancée applicant for AOS who fulfilled all the terms of the K-1 by entering and marrying within 90 days could nevertheless be denied AOS if she later divorces and her former husband withdraws the I-864 in writing prior to the AOS.
(5) Domicile Requirement
(a) Generally—The affidavit must be from the petitioning relative and any other qualifying person under INA §213A(f). The affiant must be domiciled in the U.S., thereby precluding USCs who are domiciled abroad from sponsoring. 8 CFR §213a.2(c)(1)(ii); Legal Opinion, G.C., INS, Legal Opinion No. 97-10 (July 8, 1997), reprinted in 75 No. 10 Interpreter Releases 380–83 (Mar. 16, 1998); Park v. Holder, 572 F.3d 619 (9th Cir. 2009) [where husband/petitioner not domiciled in U.S. wife was not eligible for AOS]. Domicile is defined as the person’s principal, actual dwelling place. 8 CFR §213a.1. DOS defines it as the place where the person has a residence as defined in INA §101(a)(33). Cable, DOS, 97-State-235619 (Dec. 19, 1997), AILA Doc. No. 98010690. However, a person residing abroad may still be domiciled in the U.S. if he went abroad pursuant to INA §§316(b), 317, or 319(b) relating to residency for naturalization purposes. 8 CFR §213a.2(c)(1)(ii)(A); Memo, G.C., INS, supra; AFM §20.5. DOS agrees. Cable, DOS 98-State-042068 (Mar. 12, 1998), reprinted in 75 No. 13 Interpreter Releases 468–70 (Apr. 6, 1998). Under DOS guidelines a person domiciled abroad who wishes to take up his residence again in the U.S. may do so and “[t]here is no requirement that the residence have been established for any length of time.… [T]he sponsor must have taken steps to make the U.S. his immediate principal place of abode. Such steps might include finding U.S. employment, locating a place to live, registering children in U.S. schools and other indices of residence. The sponsor should also have made arrangements to relinquish residence in the third country.” Cable, 98-State-042068, supra. Under DHS guidelines, the sponsor domiciled abroad must establish by a preponderance of the evidence that he or she will establish a domicile in the U.S. “on or before the date of the principal intending immigrant’s admission or adjustment of status.” 8 CFR §213a.2(c)(1)(ii)(B); 71 FR 35732, 35734 (June 21, 2006). If the sponsor enters the U.S. at the same time as the beneficiary with the intention of establishing her principal residence in the U.S., the sponsor shall be deemed to have established a domicile in the U.S. Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 at 6 (June 27, 2006), AILA Doc. No. 06063013. Some ways to establish domicile in the U.S. where the sponsor has been living abroad include: (1) finding employment in the U.S.; (2) securing a residence in the U.S.; (3) register children in U.S. schools; (4) relinquish residence abroad; and (5) other evidence of residence. See http://nvc.state.gov/aos.
(b) Change of Address—Sponsors who changes their address must notify USCIS on Form I 865 within 30 days of the change. Failure to file results in monetary penalties above and beyond the payment for lost means-tested public benefits. INA §213A(d), 8 USC §1183a(d); 8 CFR §213a.3; 71 FR 35732, 35740 (June 21, 2006).
(6) Income Requirements—The 125% guideline is determined in relationship to the household size. 8 CFR §213a.2(c)(2)(ii)(C).
(a) Household Size—The household size includes the sponsor, the sponsor’s spouse, and the sponsor’s children unless they are at least 18 and were not claimed as dependents. Household size also includes: (1) any other person (whether or not related to the sponsor) whom the sponsor has claimed as a dependent in the most recent tax year, even if he or she does not reside with the sponsor; (2) all persons sponsored previously where the obligation has not terminated; and (3) all persons currently sponsored. Spouses or children of the intending immigrant will not be counted if they do not currently reside in the U.S. and do not seek to immigrate within 6 months (i.e., “following to join”), or if they are already a USC/LPR. 8 CFR §213a.1. All the above persons, when added together, constitute the number of people in the household for purposes of the federal poverty guidelines.
(b) Poverty Guidelines—The 125% measurement based on 2018 poverty guidelines, 83 FR 2642-44 (Jan. 18, 2018) except Alaska and Hawaii, which are higher, see I-864P, reprinted in 9 FAM 302.8-2(B)(17), are as follows: for one person ($15,175); 2 people ($20,575); 3 people ($25,975); 4 people ($31,375); 5 people ($36,775); 6 people ($42,175); 7 people ($47,575); and 8 people ($52,112.). After 8 household members add $5,400 ($4,320 x 125%) for each additional person. USCIS Form I-864P, 9 FAM 302.8-2(B)(17); DHS, 2018 HHS Poverty Guidelines for Affidavit of Support, , reprinted in 95 No. 14 Interpreter Releases Art. 4, Appx III, p. 25 (Apr. 2, 2018). The sponsor may count disability benefits and Social Security benefits (but not SSI) in computing his or her income. Cable, DOS (98-State-133584) (July 22, 1998), AILA Doc. No. 98072291. For USCIS purposes, the guidelines become effective in March following their release in January. Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 at 15, 18 (June 27, 2006), AILA Doc. No. 06063013. For more about the poverty guidelines go to http://aspe.hhs.gov/poverty.
(c) Sponsor on Active Duty—If the petitioner is on active duty in the Armed Forces he need only meet 100% of the federal poverty guidelines if the intending immigrant is his spouse or child. 8 CFR §213a.2(c)(2)(ii)(C).
(d) Assets and Other Income—If the sponsor cannot meet the 125% figure, he or she may provide evidence of other assets that are readily available, including the assets and income of other household members. See in this section, ¶ (4)(a) (p.94), supra. See also Joint Sponsor requirements, ¶ (4)(c) (p.95), supra.
(e) Assets—The sponsor may also include other assets in addition to salary and income. Evidence of assets include: (1) bank statements covering the last 12 months or statement from officer of bank/financial institution; (2) stocks, bonds and CDs and dates acquired; (3) other personal property; and (4) real estate. 8 CFR §213a.2(c)(2)(iii)(B); 9 FAM 302.8-2(B)(4)(U)(g)(2); AFM 20.5. In determining sufficiency of assets, the value of the assets less any offsetting liabilities must exceed by at least 5 times, the poverty guidelines minus the sponsor’s household income (e.g., if poverty guidelines call for $10,600 for 2 and person earns $8,600 they must show 5 x $2,000 = $10,000 in assets). If the intending immigrant is the spouse or child of a USC and the child has reached her 18th birthday, the adjudicator may use 3 times the guidelines, rather than 5 times. 8 CFR §213a.2(c)(2)(iii)(B)(1). May count significant assets outside the U.S. as long as they are readily convertible to cash within 1 year. 9 FAM 302.8-2(B)(4)(U)(g)(2).
(f) Other Income—The sponsor may rely on income that is not subject to taxation such as a housing allowance for clergy or military personnel. The sponsor’s use of means-tested benefits does not disqualify him or her from being the sponsor. It simply means those benefits are not counted toward income. Memo, Cronin, Acting Assoc. Comm. Office of Program (70/23.1) (Mar. 7, 2000), AILA Doc. No. 00032704.
(7) Death of the Sponsor—INA §213A(f)(5). If sponsor dies before all qualified family members have immigrated, certain relatives may step in as a substitute sponsor. 8 CFR §213a.2(c)(2)(iii)(D); 71 FR 35732, 35735 (June 21, 2006); 9 FAM 302.8-2(B)(4)(e), 504.2-B(C)(4); Cable, DOS (98-State-112510) (June 23, 1998), reprinted in 75 No. 25 Interpreter Releases 913, 916 (July 6, 1998). Under the Family Sponsor Immigration Act of 2002, PL 107-150, 116 Stat. 74 (Mar. 13, 2002) certain relatives who are at least 18 years of age (spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild or legal guardian) may be substituted to meet the affidavit of support requirements under INA §213A(f)(5) when the petitioning relative has died after approval of the petition and the Sec. of DHS, on humanitarian grounds, decides to reinstate the petition. A substitute sponsor is not required where the beneficiary can be credited with 40 qualifying SSA quarters, including quarters earned by a parent when the individual was under age 18 or a spouse during the marriage. INA §213A(a)(3)(A) & (B). The beneficiary of the I 130 must ask the Secy. of DHS to reinstate the petition, who must determine it is appropriate for humanitarian reasons, and the beneficiary must demonstrate she has a substitute sponsor designated under the Act. 8 CFR §§205.1(a)(3)(i)(C)(2), 1205.1(a)(3)(i)(C)(2). The Act applies with respect to deaths occurring before, on, or after the date of the enactment. Cable, DOS, 02-State-071485 (Apr. 15, 2002) at ¶4, AILA Doc. No. 02041732. A person whose case was denied on grounds that no substitute sponsor was permissible prior to the Family Sponsor Immigration Act, may file a motion to reopen beyond the time limit and the new law should be considered a “sufficient reason” for filing the motion late. Memo, Williams, Ex. Assoc. Comm., Field Operations, HQADJ/70/21.1.13 (June 15, 2002), AILA Doc. No. 02120941. However, the category of persons who may benefit from a substitute family sponsor was dramatically enlarged for beneficiaries in the U.S. by the DHS Appropriations Act, PL 111-83 §568(e) (Oct. 28, 2009). A substitute family member described above may serve as a substitute sponsor where the applicant’s petition is pending or has been approved pursuant to INA §204(l). This section requires the petition be approved unless approval would not be in the public’s interest. INA §213A(f)(5)(B)(ii). The beneficiary simply needs to show that the petition is pending or was approved. INA §204(l).
(8) Forms I-864, I-864EZ, I-864W, I-134—The specialized affidavit of support under INA §213A is filed on Form I-864 by sponsors, joint sponsors, and substitute sponsors. A simplified version of the I-864 is available on Form I-864EZ. 8 CFR §213a.2(a)(1)(i)(A). The I-864EZ is used where there is one beneficiary, the sponsor has a W-2 and there are no asset or joint sponsor issues. Household wage-earners file Form I-864A. Persons who are not required to file an I-864 because they have earned 40 quarters of coverage under the Social Security Act, or who are intending immigrant children who will become USCs by virtue of the Child Citizenship Act of 2000, or who are self-petitioning widows(ers) or battered spouses or children, must file an I-864W exemption. Persons required to meet the public charge ground but who are not required to submit an I-864 may use the I-134 affidavit of support if necessary.
(9) Procedure—The I-864 and all supporting documents are filed with the I-485 and all other required documents when seeking AOS. If the applicant is seeking an IV, the I-864 and supporting documents are sent to NVC. The I-864 should be filed within 6 months of being signed. However, DOS may accept, on a case-by-case basis, affidavits signed as long as one year before the interview. Cable, DOS (99-State-220435) (Nov. 28, 1998), reprinted in 76 No. 6 Interpreter Releases 247 (Feb. 8, 1999). If the I-864 and I-864A (if needed) is properly signed, only one original is needed. Family members can attach copies. Cable, DOS, 98-State-092491 (May 22, 1998), AILA Doc. No. 98060590. For consular procedures regarding review of I-864 see 9 FAM 302.8-2(B)(12)-(17). The original “ink” signature on an application need not be filed as DOS and the NVC will accept copies that contain the signature. Press Release, DOS, Ink Signature No Longer Required on Affidavits of Support (Dec. 28, 2016), AILA Doc. No. 16122801.
(10) Documentary Requirements
(a) Generally—The sponsor is required to submit with the I-864: (a) federal tax returns for the most recent year, including W-2 forms; (b) evidence of current employment; (c) evidence that sponsor’s income is sufficient to meet the income requirements; and (d) the current edition of the poverty guidelines (I-864P). INA §§213A(f)(6)(A) & (B); 8 CFR §§213a.2(a)(1)(ii), 213a.2(c)(2)(i)(A). The sponsor’s income must meet the 125% requirement of the poverty guidelines in effect at the time the I-864 was submitted. Memo, Aytes, Acting Dir. Operations, USCIS, HQOPRD 70/21.1.13 (Nov. 23, 2005), AILA Doc. No. 05120210; Cable, 06-State-051172, supra at ¶4. The affidavit will normally be held sufficient unless there are specific facts, including a material change in employment or income history, implying that the sponsor may not be able to maintain household income and meet sponsorship obligations. 8 CFR §213a.2(c)(2)(ii)(C). Consular officers are not to require an employment letter unless there is some reason to question the veracity of the income stated. Cable, 06-State-051172, supra at ¶4. 9 FAM 302.8-2(B)(13)(e)
(b) Tax Returns—USCIS and DOS have determined that the past year’s tax return is sufficient and that a sponsor is no longer required to provide 3 years of returns. 8 CFR §213a.2(c)(2)(i); 9 FAM 302.8-2(B)(13)(e)(3)(d)(1). Photocopies of tax returns or IRS-generated transcripts are allowed. 71 FR 35732, 35738 (June 21, 2006). Sponsors need only submit tax returns in years they were obligated to file, but if they had no legal duty to file, they must provide an explanation. 8 CFR §213a.2(c)(2)(i)(B); Cable, DOS, 98-State-133584 (July 22, 1998), AILA Doc. No. 98072291. A DOS officer may request a tax summary prepared by IRS only if the officer has doubts about the validity of the tax returns. Id. Amended returns are permissible. USCIS may accept a transcript of the taxpayer’s income tax return where the taxpayer files an IRS 4506T. Because IRS issues this document, it is not necessary to ask the sponsor for a W-2 or 1099. Aytes Memo (Nov. 23, 2005), supra.
(c) Household Members—A household member who has signed an I-864A must also provide such documentation, including a tax return for the same year as submitted by the sponsor. 8 CFR §213a.2(c)(2)(i)(C)(4).
(d) Processing Delays and Documentation—The sufficiency of the I-864 should be based on the evidence submitted unless more than one year has passed between filing and examination, in which case the adjudicator or IJ may request additional evidence. 8 CFR §§213a.2(a)(1)(v)(A) & (B). But see Cable, 06-State-051172, supra at ¶4 [the delay between the date of signing the I-864 and the date of the visa interview should not be a basis to request updated information]. For additional consular procedural issues see 9 FAM 302.8-2(B)(4)(f) and (B)(12)-(16).
(11) Affidavit as Enforceable Contract
(a) Generally—The I-864 affidavit of support is now an enforceable contract against the affiant. INA §213A(a), 8 USC §1183a(a). The sponsor and joint sponsor are “jointly and severally liable.” 71 FR 35732, 35743 (June 21, 2006). Execution of the I-864 creates a contract but the obligation begins after the sponsored immigrant “acquires permanent residence.” 8 CFR §213a.2(d); 71 FR 35732, 35740 (June 21, 2006). The affidavit is enforceable by the sponsored person, the local, state or federal government, or any agency providing a means-tested public benefit until the sponsored immigrant is: (1) naturalized; (2) ceases to be an LPR and departs the U.S.; (3) obtains a new grant of AOS in a removal proceeding; (4) has earned or been credited with 40 qualifying quarters under Title II of the Social Security Act (approx. 10 years) not including periods where means-tested benefits were received; or (5) dies. 8 CFR §213a.2(e)(2)(i). Divorce does not end the obligation of support; nor a premarital agreement. Erler v. Erler, 824 F.3d 1173, 1175-77 (9th Cir. 2016) [neither a divorce decree nor a premarital agreement terminates the obligation of support]. Nor does a martial settlement agreement. Cyrousi v. Kashyap, 386 F.Supp.3d 1278, 1282-83 (C.D. Cal. 2019) [agreement upon divorce did not absolve affiant of responsibility]. Qualifying quarters are attributed to the child (if under 18) or the spouse (if they remain married). Cyrousi, 376 F.Supp.3d at 1286-87 [to reach 40 quarters can credit affiant spouse’s quarters as well as immigrant’s and it is crediting work not whether it appears on social security statement]. An action need be brought no later than 10 years after the date the sponsored person received any means-tested public benefit. The contract is only enforceable if the government agency seeking enforcement published that the benefit is a means-tested public benefit prior to the date the benefit was first provided the immigrant. 71 FR 35732, 35742 (June 21, 2006). The affiant is now required to report his or her change of address or be subject to a fine which may range from $250 to $5,000. INA §213A(d).
(b) Means-Tested Public Benefits—Supplemental Security Income (SSI); and Temporary Assistance to Needy Families (TANF). 62 FR 45256, 45284 (Aug. 26, 1997). It also includes state means-tested benefits. 8 CFR §213a.4(b). The following benefits are exempt: emergency medical care; short term, noncash in-kind emergency disaster relief; benefits under National School Lunch Act and similar state and local programs; benefits under Food Stamps, Child Nutrition Act of 1966 and similar state/local programs; WIC (Supplemental Nutrition Program for Women, Infants, and Children); public assistance for immunizations and for testing and treatment of communicable diseases; emergency Medicaid, Medicare, Children’s Health Insurance Program (CHIP), payment for foster care and adoption assistance; services, or assistance (such as soup kitchens, crisis counseling and intervention and short-term shelter) specified by the AG; student assistance under Titles IV, V, IX, and X of Higher Education Assistance Act of 1965 and Titles IV, VII and VIII of Public Health Service Act; benefits under Head Start Act; means-tested programs under the Elementary and Secondary Education Act of 1965; and benefits under Job Training Partnership Act. 9 FAM 302.8-2(A)(c); Cable, DOS, 97-State-228462 (Dec. 6, 1997), reprinted in 74 No. 47 Interpreter Releases 1,889–94 (Dec. 15, 1997). HUD programs are not considered to fall under the category of federal means-tested public benefits. 65 FR 49994 (Aug. 21, 2000. See also A Quick Guide to Public Charge and Receipt of Public Benefits (Oct. 18, 1999), reprinted in 76 No. 43 Interpreter Releases 1613, 1637–38 (Nov. 8, 1999). See also Fact Sheet, USCIS, Public Charge (Oct. 20, 2009) at p. 2, AILA Doc. No. 09102970 [listing benefits not subject to public charge including noncash benefits under TANF, job training programs, emergency disaster relief, child care services, housing benefits, and unemployment and Social Security]. A Presidential Memorandum issued in 2019 set forth guidelines for the enforcement and reimbursement of benefits from sponsors when means-tested public benefits are taken by beneficiaries of petitions. Memorandum, President of the U.S., Enforcing the Legal Responsibilities of Sponsors of Aliens (May 23, 2019), AILA Doc. No. 19052470. For a more completed discussion of Means-Tested Public Benefits see infra Chapter 6, XIII, K, 2at pp___ Means-Tested Public Benefits and Appendix F.
(c) Affidavit Used to Claim Support—Congress “clearly intended to permit the sponsored immigrant to sue to enforce the support obligation, if necessary.” 71 FR 35732, 35743 (June 21, 2006). In addition to the obligation to the U.S. government or the states to repay any means-tested public benefits, and in addition to any alimony payments, the sponsor and even the joint sponsor (and the household member who signs the I-864A) may have a continuing responsibility to support the immigrant and his or her family at 125% of the poverty guideline. INA §213A(a)(1)(A), 8 USC §1183a(a)(1)(A). [“the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable.”] The I-864 instructions clearly state that: “By signing this form, you, the sponsor, agree to support the intending immigrant and any spouse and/or children immigrating with him or her.” Form I-864, p.1 (Sponsor’s Obligation). Part 7 of the I-864 further states: “I agree to provide the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at least 125 percent of the Federal poverty guidelines. I understand that my obligation will continue until my death or the sponsored immigrant(s) have become U.S. citizens, can be credited with 40 quarters of work, depart the United States permanently, or die.” The support obligation, however, begins only when the immigration officer or IJ “grants” the immigrant’s application for admission or her adjustment of status. 8 CFR §213a.2(e); 71 FR 35732, 35740 (June 21, 2006). See also 8 CFR §213a.2(f) [criteria for withdrawal of affidavit before approval]; 8 CFR §213a.2(c)(2)(v) [failure to sign waiver needed to verify information constitutes a withdrawal].
(d) Enforcement of I-864—An action to enforce the I-864 may be brought in either state or federal court. Madrid v. Robinson, 218 F.Supp.3d 482, 484-87 (W.D. Va. 2016) [court recognized that a federal cause of action is created by 8 USC §1183a(e)(1) and that the federal court had jurisdiction to enforce agreement despite defendant’s claim it was a breach of contract only enforceable in state court]. Courts have found the I-864 enforceable and have ordered support payments to a former spouse. Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) [the sponsored immigrant is a third party beneficiary whose rights exist “apart from whatever rights [she] might or might not have under Wisconsin divorce law,” and she has no legal obligation to mitigate damages]; In re Marriage of Dickson, 337 P.3d 72 (Kan. App. 2014) [maintenance and support in divorce proceedings are separate and apart from I-864 obligations]; Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D. Cal. 2008) [I-864 is legally enforceable but recognizing certain set-offs]; Naik v. Naik, No. A-6270-05T5 (N.J. Super. Apr. 14, 2008) [I-864EZ creates legally enforceable contract but there is a set-off for spousal and child support and equitable distribution]; Cheshire v. Cheshire, No. 3:05-CV-00453-TJC-MCR, 2006 WL 1208010 (M.D. Fla. May 4, 2006) [under INA §213A(a)(1), the sponsor’s obligation under the I-864 to support his former wife is contractual and independent of reimbursement to the government or alimony]; Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 1290658 (N.D. Ind. May 27, 2005) [granting summary judgment on liability]; Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 2757329 (N.D. Ind. Oct. 25, 2005) [finding I-864 enforceable and ordering defendant to pay former spouse support at 125% of the poverty guidelines]. See also Moody v. Sorokina, 40 A.D.3d 14 (N.Y. App. Div. 2007) [lower court erred in finding defendant not eligible to seek enforcement of the I-864 on grounds that the statute was for public benefit only]; Davis v. Davis, No. WD-04-020, 2004 WL 2924344 (Ohio App. 6 Dist. Dec. 17, 2004) [reversing trial court’s decision to decline jurisdiction to enforce I-864]. Enforceability also extends to co-signatories, including parents of petitioner who co-signed. Zhu v. Deng, 794 S.E. 2d 808 (N.C. App. 2016). But see Kawai v. Uacearnaigh, 249 F.Supp.3d 821 (D.S.C. 2017) [dismissing I-864 action in federal court under Younger abstention because of on-going family court proceedings where the federal claims may adequately be raised in the state court divorce proceedings]; Yaguil v. Lee, 2014 WL 1400959 (E.D. Cal Apr. 10, 2014) [dismissal on res judicata grounds because I-864 was raised in settlement conference in divorce proceedings]; but see Li Liu v. Kell, 299 F.Supp.3d 1128, 1132-33 (W.D. Wash. 2017) [res judicata defense denied on facts of case]. See also Tornheim v. Kohn, No. 00 CV 5084 (SJ), 2002 WL 482534 (E.D.N.Y. Mar. 26, 2002) [declining to enforce I 134 affidavit of support]; Davis v. U.S., 499 F.3d 590 (6th Cir. 2007) [dismissing action for declaratory judgment under the Rooker-Feldman doctrine by legally separated U.S. husband to determine amount owed to wife and step-sons under I-864 after wife obtained support ruling in state court]. The obligation may not be dischargeable in bankruptcy. Cook v. Cook, 473 B.R. 468 (M.D. Fla. 2012) [$100,000+ judgment under the affidavit of support from a 3-month marriage was enforceable, despite previous payment of $29,000+ in alimony, and was not dischargeable in bankruptcy because it was a domestic support obligation under 11 USC §523(a)(5)].
(i) Premarital Agreements—The comments to the regulations take no view on whether divorce affects support obligations under the affidavit, but notes that a sponsored immigrant, in a divorce settlement, can surrender his or her right to sue the sponsor to enforce the I-864. 71 FR 35732, 35740 (June 21, 2006); Blain v. Herrell, No. 10-00072 ACK-KSC, 2010 WL 2900432 (D. Haw. July 21, 2010) at pp. 5-6 [dismissing complaint with prejudice to enforce I-864 and finding that prenuptial agreement barred enforcement because it is a “basic principle of contract law that a party may waive legal rights”]. But see Erler v. Erler, 824 F.3d 1173, 1175-77 (9th Cir. 2016) [a premarital agreement does not terminate the obligation of support]; Toure-Davis v. Davis, No. WGC-13-916, 2014 WL 1292228 (D. Md. Mar. 28, 2014) [antenuptial agreement signed before affidavit of support does not relieve obligation and court discounted comments to regulations].
(ii) Other Remedies—The enforcement statute also includes other remedies such as “payment of legal fees and other costs of collection” 8 USC §1183a(c). See Iannuzzelli v. Lovett, 981 So.2d 557 (Fla. 3d DCA 2008) [legal fees limited to collecting on judgment obtained, not seeking judgment]; Matloob v. Farham, No. WDQ-11-1943, 2014 WL 1401924 (D. Md. Apr. 9, 2014) and 2014 WL 4977667 (D. Md. Oct. 1, 2014) [awarded attorney’s against pro se defendant]. But see Yaguil v. Lee, 2014 WL 3956693 (E.D. Cal Aug. 13, 2014) [sponsor may not recover fees as INA §213A(c) is not a prevailing party statute but one for the benefit of the beneficiary only]. Beneficiary also entitled to specific performance requiring sponsor continue his obligations unless one of the terminating conditions applies. Santana v. Hatch, No. 15-cv-89-wmc, 2016 WL 1734117 (W.D. Wis. Apr. 29, 2016) [awarding specific performance and attorney’s fees].
(e) Calculation of Damages—The calculation of damages under the I-864 is based on whether the beneficiary had income that annually reached 125% of the poverty guidelines. One court has found that you cannot aggregate the beneficiary’s income over several years to determine the 125% per year, but must determine year-by-year whether the individual’s “annual income” under 8 USC §1183a(a)(1)(A) met the 125% poverty threshold. Shumye v. Felleke, 555 F.Supp.2d 1020, 1024–25 (N.D. Cal. 2008) [must separately analyze each calendar year during which the affidavit was enforceable, rather than looking at former wife’s aggregate income over the entire multi-year period]. Another court has found that when measuring whether an immigrant meets the 125% poverty threshold the court must disregard the income of anyone else living in the household who is not a sponsored immigrant. Erler v. Erler, 824 F.3d 1173, 1177-81 (9th Cir. 2016) [sponsor’s obligation is to provide immigrant support at 125% income and he could not count the income of the immigrant’s son who was living with the immigrant after divorce]. Beneficiary’s time out of the U.S. does not categorically prevent recovery from the petitioner. Villars v. Villars, 336 P.3d 701, 712 (Ala. 2014) [physical location abroad does not preclude receipt of support but assistance from family members while abroad would count as an offset]. Another court held that the beneficiary’s assets cannot be treated as income. Zhu v. Deng, 794 S.E. 2d 808 (N.C. App. 2016). But see Dahhane v. Stanton, No. 15-CV-1229 (PJS/BRT), 2016 WL 4257536 (D. Minn. Aug. 12, 2016) [money the beneficiary brought from his home country counted as income offsetting the petitioner’s obligations as did child support payments].
(f) Defenses—Defenses to enforcement of the affidavit in regard to damages include mitigation and set off. See Cyrousi v. Kashyap, 386 F.Supp.3d 1278, 1283-89 (C.D. Cal. 2019) [a thorough discussion of affirmative defenses, defenses based upon terminating events such as working 40 quarters and abandoning residency, and set-offs such as spouse’s payment for food, clothing and shelter and support from current spouse]; Dahhane v. Stanton, No. 15-CV-1229 (PJS/BRT), 2016 WL 4257536 (D. Minn. Aug. 12, 2016) [financial payment, whether as a gift or otherwise, may be counted against the sponsor’s support obligation]; Shumye v. Felleke, 555 F.Supp.2d 1020, 1025–27 (N.D. Cal. 2008) [student grants and housing subsidies are set-offs but student loans and divorce settlement over community property are not]; Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 2757329 (N.D. Ind. Oct. 25, 2005) at *7 [mitigation and set off can be deducted from amount owed]; Cheshire v. Cheshire, 2006 WL 1208010, *6, No. 3:05-cv-00453-TJC-MCR (M.D. Fla. May 4, 2006) But see Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) [spouse has no legal obligation to mitigate damages]; Zhu v. Deng, 794 S.E. 2d 808 (N.C. App. 2016) [no duty to mitigate]; Li Liu v. Kell, 299 F.Supp.3d 1128, 1133-34 (W.D. Wash. 2017) [failure to mitigate and waiver are not defenses to enforcement of I-864 obligations]; Dorsaneo v. Dorsaneo, 261 F.Supp.3d 1052 (N.D. Cal. 2017) [neither estoppel nor fraud in the inducement are defenses]; Wenfang Liu v. Mund, 748 F.Supp.2d 958, 963 (W.D. Wis. 2010) [validity of marriage should be litigated in state court not in I-864 enforcement proceeding]; Younis v. Farooqi, 597 F.Supp.2d 552 (D. Md. 2009) [child support is not a set-off but beneficiary had obligation to make reasonable efforts to find employment to mitigate damages].
(12) Criminal Issues—U.S. v. Wu, 419 F.3d 142 (2d Cir. 2005) [where I-864 contained false statements that were not material, government can still convict by showing that I-864 was part of the larger process of falsely petitioning, though the use of an I 130 petition, for relatives].
|p. 97 (Ch. 3, ¶ III.B.)||Admissibility
Insert the following section after paragraph 1:
2. Health Insurance Required for Immigrants—By Presidential Proclamation an immigrant (with certain exceptions) is barred from entry unless he or she is “covered by approved health insurance” within 30 days of entry into the United States or “possesses the financial resources to pay for reasonably foreseeable medical costs.” Presidential Proclamation 9945 (Oct 4, 2019), Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order to Protect the Availability of Healthcare Benefits for Americans, 84 FR 53991-94 (Oct. 9, 2019).
2.1. An approved health insurance plan is defined as: (1) an employer-sponsored plan; (2) an unsubsidized health plan offered in the individual market with a State; (3) a short-term limited duration health policy effective for a minimum of 364 days—or until the beginning of planned, extended travel outside the US; (4) a catastrophic plan; (5) a family member’s plan; (6) a medical plan under 10 USC Chap. 55 including coverage under the TRICARE program; (7) a visitor health insurance plan that provides coverage for medical care for a minimum of 364 days—or until the beginning of planned, extended travel outside the US; (8) a medical plan under the Medicare program; or (9) any other health plan that provides adequate coverage for medical care determined by the Sec. of HHS. It does not include Medicaid for persons over the age of 18.
2.2. Person Not Subject to Insurance Requirement: (1) IV holders before Nov. 3, 2019; (2) Afghan or Iraqi IV holders and their spouse and children under the SI or SQ classifications; (3) children of USC (including adopted children) who are seeking to enter under IR-2, IR-3, IR-4, IH-3 or IH-4; (4) person seeking to enter under IR-5 (parent of USC) provided that the person’s sponsor can demonstrate the his or her healthcare will not impose a substantial burden on the US healthcare system; (5) returning residents under SB-1; (6) person under the age of 18 unless accompanying a parent who is immigrating; (7) person whose entry would further important law enforcement objectives as determined by the Sec. of State based on the recommendation of the AG; or (8) any person whose entry would be in the national interest as determined by the Sec. of State on a case-by-case basis.
2.3. Priority Removal: A person seeking to circumvent the provision through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by DHS.
|p. 138 (Ch. 3, ¶ III.E.2.d.)||Inadmissibility
Three– and Ten-Year Bar
Replace paragraph 2.d. with the following:
2.d. Counting the 3/10 Years—Once a person has triggered the 3/10 year bar, the 3/10 years are a permanent bar upon the person’s departure even if he or she is paroled back into the U.S. or lawfully admitted on a visa with a INA §212(d)(3)(A) waiver, because the waiver only temporarily waives the 3/10 year bar. However, because a parole does not trigger inadmissibility, the 3/10 years needed to “cure” the bar also continue to run when the person returns and remains on parole in the U.S. for 3/10 years. AFM at 40.9.2(a)(4)(E). Thus, a person who is subject to the 3-year bar and returns on a parole and remains for three years on parole, would “cure” the 3-year bar. Similarly, a person who triggers the 3/10 year bar as a B-2 overstay and returns to his or her country and obtains, for example, an E-2 visa with a §212(d)(3)(A) waiver may, upon return to the U.S., “cure” the ground of inadmissibility after remaining in the U.S. for 3/10 years. Letter, Divine, GC USCIS to Berry (July 14, 2006), AILA Doc. No. 08082930 and Letter, Melmed, GC, USCIS to Horne (Jan. 26, 2009), AILA Doc. No. 09012874. But post-Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012) [travelling on advance parole does not constitute a departure triggering the 3/10 year bar] there may be some question as to whether a person returning on an advance parole and remaining in the U.S. after advance parole for 3/10 years would be eligible for AOS or otherwise cure the 3/10 year bar. LegalNet apparently takes the position that being paroled on an advance parole does not allow a person to restart counting the 3 (or 10) years, because post-Arrabally & Yerrabelly returning on advance parole means the person never left. But see Matter of ___, St. Paul, Minn. (AAO Oct. 26, 2012), AILA Doc. No. 12102242 [denial of AOS reversed where person reentered on advance parole and therefore eligible to adjust]. However, if the person reenters EWI and remains in the U.S. for three years, her EWI status in the U.S. does not “cure” the 3/10 year bar and she is unauthorized and barred even after the 3 years. But see Matter of Cruz, A087 241 021 (BIA Apr. 9, 2014) (unpublished). Notwithstanding the triggering of the 3/10 year bar, an applicant may make an argument that simply remaining in the U.S. for 3/10 years would satisfy the 3/10 year bar, because unlike sections such as INA §212(a)(9)(A), (C) there is no language that suggests departure from the U.S. is required to satisfy the 3/10 years.
|p. 153 (Ch. 3, ¶ III.E.3.)||Inadmissibility
Add the following after paragraph 3.e.:
3.f. Waiver Application Must Be Made for Permanent or Temporary Entry—Unlike INA §212(a)(9)(B), both DOS and USCIS read INA §212(a)(9)(C) as a permanent bar to reentry to the U.S. and read the exception, although ambiguous, as always requiring a waiver. INA §212(a)(9)(C)(ii). See e.g. USCIS, Instructions to Form I-212 at pp.1-2; 9 FAM 302.11-4(D). The practical effect is that whenever someone with a 212(a)(9)(C)(i)(I) or (II) bar is outside of the U.S. for 10 years or more, they must still request a waiver to return. A INA §212(d)(3)(A) waiver for an NIV is available only where the person is inadmissible under INA §212(a)(9)(C)(i)(I) [reenters/attempts reentry EWI after one year of unlawful presence] and only if the consular officer seeks relief by submitting the waiver request [ARIS Waiver Request Form through the Admissibility Review Information Service (ARIS)]. 9 FAM 302.11-4(D)(2)(c). This waiver may occur within or outside the 10 years. An applicant seeking to waive permanently (9)(C)(i)(I) or (9)(C)(i)(II) [reentry/attempt EWI after deportation] must file and obtain approval of an I-212 waiver. 9 FAM 302.11-4(D)(2).
|p. 223 (Ch. 3, ¶ IV.D)||Expedited removal||
Replace paragraphs 1 and 1.a. with the following:
1. Generally—Under IIRIRA, Congress mandated (beginning Apr. 1, 1997) a procedure for expedited removal of persons deemed inadmissible at the border under INA §212(a)(6)(C) (material misrepresentation) and INA §212(a)(7) (lack of IV or NIV documents). 8 CFR §§235.3(b), 1235.3(b). The expedited-removal regulations have been upheld. AILA v. Reno, 199 F.3d 1352, 1356–57 (D.C. Cir. 2000) [finding that AILA lacked third-party standing and that district court’s dismissal of individual plaintiffs for failure to state cause of action was correct]. Expedited removal may also apply to persons not admitted or paroled who are unable to prove they have been in the U.S. continuously for 2 or more years. INA §235(b)(1)(A)(iii)(I)–(II). On July 23, 2019, USCIS expanded expedited removal to apply in the following two situations. First, it applies to anyone who: (i) did not arrive by sea; (ii) was admitted or paroled; (iii) is stopped by an immigration office more than 100 miles from a US international land border; and (iv) cannot prove he or she has been continuously physically present in the U.S. for more than two years immediately prior to the date his or her inadmissibility is determined. Second, it applies to anyone who: (i) did not arrive by sea; (ii) was not admitted or paroled; (iii) is stopped by an immigration officer within 100 miles of the border; and (iv) has been continuously physically present in the US for 14 days (but less than two years) immediately prior to the date his or her inadmissibility is determined. 84 FR 35409-14 (July 23, 2019). Prior expansion focused on the 100-mile limit in the Southern Border, Notice Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11, 2004), but it was subsequently expanded to all borders, including the Northern Border. Press Release, DHS (Jan. 30, 2006), AILA Doc. No. 06013018; Memo, Mead, Ex. Assoc. Director, ICE, Strategic Use of Expedited Removal Authority (Apr. 5, 2011), AILA Doc. No. 14101447. Persons who arrive in the U.S. by sea (except if they come from a country in the Western Hemisphere for which we no longer have full diplomatic relations, formerly Cuba) will also be subject to expedited removal, unless they were in the U.S. for two years prior to the determination of inadmissibility. 67 FR 68924–26 (Nov. 13, 2002). Cubans are no longer exempt from expedited removal. 82 FR 4902 (Jan. 17, 2017). Persons paroled prior to Apr. 1, 1997, will not be put in expedited removal proceedings. Also, persons reentering the U.S. on advance parole, although arriving aliens, may not be subject to expedited removal. 8 CFR §§1.2, 1001.1(q). Memo, Perryman, Exec. Assoc. Comm. INS, 501 12.1-P (June 30, 1997), reprinted in 74 No. 31 Interpreter Releases 1247, 1258–59 (Aug. 18, 1997). See also Bona v. Gonzales, 425 F.3d 663, 667–68 (9th Cir. 2005) [person granted advance parole not considered an arriving alien for purposes of expedited removal]; American-Arab Anti-Discrimination Comm. v. Ashcroft, 272 F.Supp.2d 650 (E.D. Mich. 2003) [where ICE placed person who was paroled on a fraudulent I 512 into expedited removal proceedings, the court found that persons paroled into U.S. are not “arriving aliens”]. If a person subject to inspection is not inadmissible under one of the two designated sections, he or she would be subject to a removal proceeding under INA §240 for persons who are inadmissible (unless suspected of being a terrorist, in which case INA §235(c) would apply). A record of the proceedings, including the facts of the case and the statements made by the applicant for admission, should be created on Form I 867AB. 8 CFR §§235.3(b)(2)(i), 1235.3(b)(2)(i).
1.a. The categories included in the view of USCIS, Memo, Lafferty, Chief, Asylum Division, USCIS, Release of Updated ADOTC, Credible Fear of Persecution and Torture Determination, HQRAIO 120/9.15b (Feb. 13, 2017), AILA Doc. No. 17022434, 17022435 and updated Lesson Plan, Lesson Plan Overview, USCIS, Release of Updated ADOTC, Credible Fear of Persecution and Torture Determinations (Apr. 30, 2019), AILA Doc. No. 19050602, 84 FR 35409-14 (July 23, 2019), are:
|p. 355 (Ch. 3, ¶ VI.A.12)||Full faith and creditPickeringConvictionSentenceVacatur||
Replace paragraph 12 with the following:
Vacating a Sentence—A vacatur, modification, or clarification of a sentence will only be considered for immigration purposes if it was vacated, modified or clarified under the Pickering standard for a procedural or substantive reason. Matter of Thomas & Matter of Thompson, 27 I&N Dec. 674 (AG 2019) [overruling Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005) (where sentence was modified nunc pro tunc expressly to avoid deportation); Matter of Song, 23 I&N Dec. 173 (BIA 2001) (same); Matter of Estrada, 26 I&N Dec. 749 (BIA 2016) (where sentence clarified IJ considers state characteristic) and holding that only the Pickering standard will apply to changes in sentences for immigration purposes]; U.S. v. Garza-Mendez, 735 F.3d 1284 (11th Cir. 2013) [court deemed defendant’s conviction an aggravated felony after characterizing the sentence as 12 months of confinement despite state court judge issuing a clarification order that the sentence was for 12 months’ probation, not confinement]. See also Matter of Velasquez-Rios, 27 I&N Dec. 470 (BIA 2018) [an amendment to Cal. Penal Code §18.5 that retroactively lowered the maximum possible sentence of certain offenses from 365 days to 364 days did not disturb the IJ’s finding that at the time of his removal proceeding respondent was ineligible for cancellation as his CIMT conviction at the time was for a sentence for which “one year or longer may be imposed”].
|p. 488-90 (Ch. 3, ¶ X.N)||Unaccompanied minors
Replace paragraph 8 with the following:
8. Detention of Children and Families—The detention of minors, whether accompanied by their parents or considered unaccompanied minors (called “unaccompanied alien children” or UACs) has been an issue of sustained litigation over many years.
8.a. UACs—In accordance with the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), 8 USC §1232 and 6 USC §279 CBP and ICE must promptly determine if a child meets the definition of an “unaccompanied alien child” (UAC) and if so transfer him or her to the custody of ORR within 72 hours absent exceptional circumstances. Memo, Kelly, Sec. DHS, Implementing the President’s Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017), ¶I, p.10, AILA Doc. No. 17021831. The Trafficking Victims Protection and Reauthorization Act, P.L. No. 110-457 (Dec. 23, 2008), 8 USC §1232(b)(1) requires that HHS and its sub-agency Office of Refugee Resettlement maintain the care and custody of unaccompanied alien children including their detention and release. A UAC is defined as an individual who has no legal status, has not attained the age of 18, and has no parent or legal guardian in the US or no parent or legal guardian is available to provide care and physical custody. 45 CFR §410.101. The determination of UAC is made at “the time of encounter or apprehension and prior to the detention or release” of the person. 8 CFR 236.3(d); 84 FR at 44426-27. Custody of a child by ORR does not per se violate the INA or the Homeland Security Act and ORR/HHS may refuse to release a child even to a parent’s custody if they determine the parent is unable to care for the physical and mental well-being of the child. They may therefore continue to treat the child as an unaccompanied minor. D.B., as Next Friend of R.M.B. v. Cardall, 826 F.3d 721 (4th Cir. 2016) [parent lacked a substantive due process claim or statutory claim for the release of her son, but she does have a procedural due process right under Mathews to obtain a hearing for his release]; Beltran v. Cardall, 222 F.Supp.3d 476, 481-89 (E.D. Va. 2016) [finding on remand that procedural due process requires the government has the burden to initiate proceedings if it seeks to withhold a child from a parent and ORR owes the parent “some form of adversarial process and could not simply require the [parent] to change the agency’s mind]; Santos v. Smith, 260 F.Supp.3d 598, 604-16 (W.D. Va. 2017) [due process rights of the minor in ORR custody for over two years were violated and court ordered immediate release to his mother as a remedy]. See also L.V.M. v. Lloyd, 318 F.Supp.3d 601 (S.D.N.Y. 2018) [court certified class and entered order enjoining a new policy requiring the ORR director’s personal review and approval before a UAC may be released]. DHS has now issued regulations regarding the release and detentions of UACs and ORR and a UACs burden of proof in custody. Under regulations issued by DHS to end the Flores Settlement Agreement, 84 FR 44392-44535 (Aug. 23, 2019) DHS asserts that in a hearing to challenge a determination regarding custody/placement (whether a UAC should be released to a parent, legal guardian or placed in a non-secure facility), that HHS bears the initial burden of production to support its determination that the UAC would pose a risk of danger or flight risk if discharged from HHS care and custody. Once meeting the burden of production the “burden of persuasion” then shifts to the UAC to determine that he or she, by a preponderance of the evidence, will not be a danger or flight risk. 45 CFR §410.810(b). A hearing officer’s decision may be appealed to the Assistant Sec. of Administration for Children and Families within 30 days of the hearing officer’s decision and it is governed by the clear error standard. § 410.810(e); 84 FR at 44476-84.
8.b. Flores Litigation—In Reno v. Flores, 507 U.S. 292 (1993) the S.Ct. found that children in detention do have due process rights but the Court rejected a facial challenge on substantive and procedural due process, equal protection and statutory grounds to the government’s regulation. In response to the Flores litigation, a settlement agreement was entered into by the government and the Service established more liberal guidelines for the release of unaccompanied minors. Memo, McNary (Dec. 13, 1991), reprinted in 69 No. 6 Interpreter Releases, 189, 205 (Feb. 10, 1992). Under the settlement no unaccompanied minor may be held in a detention facility for more than 72 hours unless s/he is: (1) charged or convicted of a criminal offense other than EWI; (2) adjudicated a delinquent or subject to pending delinquency proceedings; (3) engaged in violent or extremely disruptive conduct; (4) escaped from another facility; (5) an unrepresented Salvadoran under Orantes; or (6) there are other extraordinary or compelling reasons. The Flores decision also sets the minimum standards for detention, housing and release of noncitizen juveniles who are detained that includes a general policy favoring release. In Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016) the court held that the 1997 Flores settlement which created “a presumption in favor of releasing minors and requires placement of those not released in licensed, non-secure facilities that meet certain standards” unambiguously applies to accompanied as well as unaccompanied minors, but it creates no affirmative right for the accompanying adult to be released. The standard for the release of adults is governed by the usual standard articulated In re Guerra, 24 I&N Dec. 37, 38 (BIA 2006) [non–criminal alien bears the burden of establishing “that he or she does not present a danger to persons or property, is not a threat to the national security, and does not pose a risk of flight”]. However, the Court found that the current detention and release policies for children in response to the surge of Central Americans attempting to enter the U.S. in 2014 “do not comply with the Settlement.” On Jan. 20, 2017, the district court enforced the original settlement finding that the government was violating paragraph 24A of the agreement by denying unaccompanied immigrant minors the right to a bond hearing. Flores v. Lynch, CV 85-4544 DMG (AGRx), AILA Doc. No. 14111359. In Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) the Ninth Circuit upheld the validity of paragraph 24A of the settlement requiring bond hearings for unaccompanied minors notwithstanding changes in statutory law (Homeland Security Act and the 2008 TVPRA) that the government claimed terminated that right. The district court has also enforced other aspects of the original Flores agreement including the appointment of a Juvenile Coordinator designated by defendants to report periodically to the court regarding enforcing aspects of the agreement that the court found the defendants failed to comply with. Flores v. Sessions, No. CV 8504544 DMG (AGRx) (C.D. Cal. June 27, 2017), AILA Doc. No. 14111359 [finding that defendants failed to comply with paragraph 12A of the agreement in the Rio Grande Sector of CBP in regard to providing children adequate food, clean drinking water, sanitary conditions, temperature control in what many call the hieleras (iceboxes), and sleeping conditions as well as other provisions and directing defendants to pick a Juvenile Coordinator pursuant to paragraph 24A of the agreement]. On Aug. 23, 2019 DHS issued regulations governing the detention of UACs and other minors in light of the provision of the Flores Settlement Agreement that called for the termination of the agreement in 45 days following the defendants’ publication of final regulations implementing the settlement agreement. See 84 FR 44392, 44398-403 [discussing history of Flores litigation].
8.c. Family Detention Standards— ICE also detains minors who enter with family members and who are, therefore, not UACs in family detention centers. In early January 2008, ICE issued family detention standards that it posted on its website (www.ice.gov/detention-standards/family-residential). Legal Access and Visitation Standards were established in SOPs by ICE in 2015. SOPs, ICE, No. 11302, Legal Access and Legal Visitation SOPs for ICE Family Residential Center (Oct. 30, 2015), AILA Doc. No. 15112461. Roth, I.G. Report, DHS to Johnson, Sec. DHS Oversight of Unaccompanied Alien Children (July 30, 2014) [noting need to follow Reno v. Flores settlement agreement for unaccompanied minor children], AILA Doc. No. 14073144. R.I.L-R v. Johnson, 80 F.Supp.3d 164, 186-91 (D.D.C. 2015) [preliminary injunctive relief granted to class of mothers with minor children from Honduras, Guatemala and El Salvador who established credible fear but were kept in detention while asylum claims were being processed because of ICE’s invocation of “general deterrence” as the reason for detention]; Aracely, R. v. Nielsen, 319 F.Supp.3d 110, 145-58 (D.D.C. 2018) [same; government may not consider general deterrence policy in deciding parole regarding “arriving aliens” at ports of entry seeking asylum where original Morton memo on parole established factors that did not include general deterrence]; Statement, Johnson, DHS Sec., Statement by Secretary Jeh C. Johnson on Family Residential Centers (June 24, 2015), AILA Doc. No. 15062431 [reviewing for release all families in detention more than 90 days; ending the use of general deterrence as a factor]. It regulations now provide for detention of families as a group. 8 CFR §236.3(h); 84 FR at 44433-34.
8.d. DHS Regulations—84 FR 44392-535 (Aug. 23, 2019); 8 CFR §§212.5(b)(3); 236.3; 45 Part 410 (ORR regulations). Prior to the issuance of DHS regulations on Aug. 23, 2019 ICE policy regarding apprehension and detention of children was reflected in ICE manual at: ICE, Enforcement and Removal Operations, Juvenile and Family Residential Management Unit, Field Office Juvenile Coordinator Handbook (Sept. 2017), AILA Doc. No. 18042630 [manual regarding “processing, transporting, managing and removing minors” including obtaining so-called voluntary withdrawals (p.20) at the border]. For EOIR’s position see Memo, Maggard, Chief IJ (Acting), Revised Docketing Practices Relating to Certain EOIR Priority Cases (Feb. 3, 2016), AILA Doc. No. 16020406; Memo, O’Leary, Chief IJ, EOIR, Docketing Practices Relating to Unaccompanied Children Cases and Adults with Children Released on Alternatives to Detention in Light of New Priorities (Mar. 24, 2015), AILA Doc. No. 15032702. The Aug. 2019 regulations address minors and UACs who are detained. Minors, as distinct from UACs, are now defined as persons who have not reached the age of 18 and have not been emancipated in an appropriate state judicial proceedings or are not incarcerated because they were tried as adults. 8 CFR §236.3(b). Unaccompanied alien children (UACs) are children who have no lawful immigration status in the US and who have not attained the age of 18 and they have no parent or legal guardian present in the US or no parent or legal guardian available to provide care and physical custody. Id; 45 CFR §410.101. The determination of UAC is made at “the time of encounter or apprehension and prior to the detention or release” of the person. 8 CFR 236.3(d); 84 FR at 44426-27.
(1) Detained Children Subject to Expedited Removal—In contrast to court decisions and the Flores settlement, DHS believes that minors subject to expedited removal will be detained without bond, although they may be paroled. 8 CFR §212.5(b)(2), 84 FR at 44393 [“the provisions in §235.3(b) ... apply to all ... aliens, including minors in DHS custody, and not just adults”]; 84 FR at 44397 [“minors who are in expedited removal proceedings whose credible-fear determination is still pending or who lack a credible fear and are awaiting removal are more likely to be held until removal can be effectuated. Furthermore, minors who have been found to have a credible fear and who are otherwise in INA section 240 proceedings, and who pose a flight risk or danger if released, are more likely to be held until the end of their removal proceedings…”]. The regulations treat minors, who are not UACs, the same as adults and allow parole only under a medical emergency or for a law enforcement purpose. 8 CFR §236.3(j)(2). However, where a minor who is not a UAC, like an adult, appears to have a credible fear and is placed in a 240 proceeding, the parole standard is “urgent humanitarian reasons” or “significant public benefit.” 8 CFR §212.5(b). Although the regulations seem to provide a liberal standard for parole, 8 CFR §236.3(j)(4) [the parole of minors “will generally serve an urgent humanitarian reason warranting release on parole if DHS determines that detention is not required to secure the minor’s timely appearance before DHS or the immigration court, or to ensure the minor’s safety and well-being or the safety of others”] and ICE officers can consider a broader array of family members other than parents and legal guardians in granting release, 8 CFR §236.3(j)(5)(i), 84 FR at 44443-45 [brother, sister, aunt uncle or grandparent], the ICE officer will consider “aggregate and historical data, officer experience, statistical information or any other probative information” in making a parole determination which is in his or her “unreviewable discretion.” This appears to reverse such cases as R.I.L-R v. Johnson, 80 F.Supp.3d 164, 186-91 (D.D.C. 2015) which enjoined the government from using general deterrence as a basis for detention. It is also troubling in light of the commentary to the final rules which claim a 43% failure to appear rate for families in detention, 84 FR at 44405, and presumably could be used as part of the “aggregate and historical data” in determining parole. There is also no review before an IJ unless the minor is in a 240 proceeding. 8 CFR 236.3(m).
(2) Minors in Secure Facilities—Minors who are not UACs may be placed in a secure (as distinct from the usual non-secure) facility such as a county juvenile detention facility or a secure DHS or contracted facility if the FOD or ICE supervisory or management personnel have probable cause to believe the minor: (1) has been charged with a crime or is charged or adjudicated delinquent that fits a pattern or practice of criminal activity or involves violence against a person or the use or carrying of a weapon; (2) has committed or made credible threats to commit violent or malicious acts while in federal or state custody or in the presence of an immigration officer; (3) has engaged in unacceptably disruptive conduct while in a licensed facility; (4) is determined to be an escape risk under 8 CFR §236.3(b)(6); or (5) must be held in a secure facility for his own safety. 8 CFR §236.3(i)(1); 84 FR at 44434-37.
(3) Minors in Non-Secure Licensed Facilities—If not placed in a secure facility minors in a family or other non-secure facility, are entitled to: (i) proper physical care; (ii) appropriate routine medical, mental health and dental care, family planning services, emergency health care services including medical examination within 48 hours of admission excluding weekends and holidays, appropriate immunizations, administration of prescribed medication and special diets, and appropriate mental health interventions when necessary; (iii) individualized needs assessment; (iv) educational services appropriate to the minor in a structured classroom setting; (v) appropriate reading materials in languages other than English for leisure reading; (vi) recreation and leisure time plan; (vii) at least one individual counseling or mental health session per week; (viii) group counseling sessions at least twice a week; (ix) orientation upon admission; (x) access to religious services of the minor’s choice; (xi) visitation and contact with family members (regardless of their immigration status); (xii) reasonable right to privacy; (xiii) communication with adult relatives regarding legal issues when necessary; (xiv) legal services information; (xv) attorney-client visits. 8 CFR §236.3(i)(4); 84 FR at 44437-43. However, a minor who is not a UAC and is accompanied by a parent or legal guardian in detention may be placed in a facility that is not licensed by the state if the licensing process is unavailable in the state, county or municipality of the ICE detention facility. Instead, DHS “shall employ an entity outside of DHS that has relevant audit experience to ensure compliance with the family residential standards established by ICE” and shall conduct such audits at the opening of the facility and on a regular on-going basis thereafter. 8 CFR §236.3(b)(9).
(4) Release of Minors Who Are Not UACs in 240 Proceedings—DHS may decide to release minors who are in 240 proceedings but are not UACs either through parole under INA §212(d)(5) or INA §236(a). DHS may release a minor to a parent or legal guardian or to an adult relative (brother, sister, aunt, uncle, or grandparent) in its “unreviewable discretion.” 8 CFR §236.3(j)(5). If they are not in expedited removal and they are in a 240 proceeding, they are entitled to a bond hearing. 8 CFR 236.3(m); 45 CFR §410.810; 84 FR at 44446-48
(5) Transferring Minors—A minor or UAC who is represented will not be transferred from one ICE placement to another or from ICE to ORR until notice is provided to counsel except in unusual and compelling circumstances such as where the safety of the minor or UAC or others is threatened or the minor or UAC is an escape-risk or where counsel waived notice. Even in such circumstances counsel must be notified within 24 hours following transfer. 8 CFR§236.3(k)(2); 84 FR at 44427-29, 44445-46, 44471-72
(6) Placing UACs in Secure Facilities—45 CFR §410.203. A UAC may be placed in a secure facility for the same reasons as any minor except the regulations did not include an escape risk because under the TVPRA a UAC cannot be placed in a secure facility absent a determination that the child poses a danger to self or others or has ben charged with having committed a criminal offense. 8 USC 1232(c)(2)(A); 84 FR at 4447-40. While a UAC may not be placed in a secure facility if he or she is simply an escape risk, he may be transferred to another ORR facility. 84 FR at 44460. And a UAC will not be placed in a secure facility if there is a less restrictive alternative. 45 CFR §410.205.
(7) Releasing UACs—45 CFR §410.301. The order of preference in releasing a UAC is: (i) a parent; (ii) a legal guardian; (iii) an adult relative (brother, sister, aunt, uncle or grandparent); (iv) an adult or entity designated by the parent or legal guardian as capable and willing to care for the UAC in a declaration signed under penalty of perjury or such other document satisfactory to ORR; (v) a licensed program willing to accept legal custody; or (vi) an adult or entity in the discretion of ORR when it appears there is no other likely alternative to long terms custody and family reunification does not appear to be a reasonable possibility. 84 FR at 44463.
(8) Rearrest of Unaccompanied Minor—An unaccompanied minor who is rearrested by ICE after release to a sponsor because of changed circumstances, such as membership in a violent gang, also has a due process right to a prompt hearing before an IJ in which the government’s claim of changed circumstances is put to the test. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018) [affirming preliminary injunction of a class of unaccompanied minors who are rearrested; Unaccompanied minors are entitled to a due process hearing before an IJ within 7 days of detention to determine whether there were changed circumstances warranting ICE’s re-arrest]; 8 CFR §236.3(n)(3); 84 FR at 44448-49.
8.e. Separating Children from Their Parents—The government’s policy of separating children from their parents at the border for ulterior law enforcement purposes in an manner antithetical to child welfare values and in the context of fleeing persecution raises serious substantive due process concerns because it interferes in the constitutional right of family integrity. Ms. L v. US ICE, 302 F.Supp.3d 1149, 1162-67 (S.D. Cal 2018) [denying government’s motion to dismiss]. See also M.M.M. on Behalf of his Minor Child J.M.A. v. Sessions, 347 F.Supp.3d 526 (S.D. Cal. 2018) [injunctive relief granted to children to prevent their parents deportation until it could be determined whether parents voluntarily waived the children’s right to asylum where children were forcibly separated from the parents shortly after crossing into the US]; J.S.R. By And Through J.S.G. v. Sessions, 330 F.Supp.3d 731, 741-43 (D. Conn. 2018) [children separated from the parents after crossing the border without notice or an opportunity for a hearing to determine the parent is unfit or a danger to the child violated the children’s due process rights and caused them irreparable harm]; M.G.U. v. Nielsen, 325 F.Supp.3d 111, 118-21 (D.D.C. 2018) [injunction requiring reunification of children separated from parents at the border because parents “have a fundamental liberty interest in family integrity…”]; De Nolasco v. USCIS, 319 F.Supp.3d 491 (D.D.C. 2018) [forced separation under “zero tolerance” policy of Guatemalan families fleeing gang violence “substantially and directly violated family integrity” in violation of substantive due process and government ordered to reunited mothers and children]; W.S.R. v. Sessions, 318 F.Supp.3d 1116 (N.D. Ill. 2018) [mandatory injunction requiring that the government reunite the two minor plaintiffs with their fathers after forcibly separating them because such separation is a violation of substantive due process; enjoined the removal of the fathers but declined to require the release of the fathers]. In response to the public’s disgust at the separation policy, the President signed yet another Executive Order stating that “where appropriate and consistent with law and available resources” the government will keep the parents in detention with the children. Executive Order 13841, Affording Congress an Opportunity to Address Family Separation (June 22, 2018) at Sec. 1, 83 FR 29438 (June 25, 2018). But see Reyna As Next Friend of J.F.G v. Hott, 921 F.3d 204, 210-11 (4th Cir. 2019) [no substantive due process right to family unity preventing transfer of parents away from their children]
8.f. Withdrawal of Application at the Border—ICE, recognizing that unaccompanied minor children at the border have special rights which require them to be given removal hearings, is now seeking to get the children to withdraw their applications at the border and return to Mexico. Memo, Albance, ICE Ex. Assoc. Director, Implementing the President’s Border Security and Interior Immigration Enforcement Policies (Feb. 21, 2017), ¶D, AILA Doc. No. 17070730. However, the parent must be notified and be afforded an opportunity to present his or her views before a merits determination is made where there is a potential for terminating the parent-child relationship or the child’s assertion of rights are adverse to the parents. 8 CFR §236.3(l).
8.g. DNA Testing at the Border—DHS has begun a DNA pilot program at the border at El Paso and the Rio Grande Valley to determine whether children seeking to enter the US are related to the persons bringing them to the US or are subject to child trafficking.
8.h. Termination of Pregnancy—Court entered preliminary injunction where ORR policies regarding pregnant unaccompanied minors: (1) deprived them of comprehensive and unbiased options counseling; (2) denied them the power to decide for themselves whether to involve their parents in their pregnancy decision; and (3) stripped them of their right to make autonomous decisions about whether to become a parent. Garza v. Hargan, 304 F.Supp.3d 145 (D.D.C. 2018) (D.D.C. 2018)¬¬ [certified class of pregnant minors in ORR custody subject to onerous policies and procedures regarding termination of their pregnancy granted preliminary injunction]. This case was vacated by the Supreme Court under Munsingwear in light of the unaccompanied minor’s termination of pregnancy. Azar v. Garza, 584 U.S. ___(2018)
8.i. Determining When a Person is a Minor—PL 110-457 §235(b)(4) (Dec. 23, 2008) instructed HHS to devise age determination procedures for minors in custody. Section 235 of the TVPRA enacted Dec. 23, 2008 provides substantial protection and more generous release standards for unaccompanied minors in immigration custody. To determine the appropriate age when an issue has arisen, DHS officials and a Federal Field Specialist from HHS shall consider the following: (i) birth certificate in consultation with the embassy of the home country to verify the certificate; (ii) other objective documents such as baptismal certificates, school records, medical records; (iii) statement provided by the minor regarding his age or birth date; (iv) statements from parents if they can be contacted; (v) statements from others apprehended with the minor; (vi) sworn affidavits from parents or other relatives; (vii) biometric age determinations such as bone density examination or dental forensics; (viii) record systems checks; (ix) forensic dental examination, radiographs and bone density tests as “a last resort.” If the forensic examination results are ambiguous, debatable or borderline “results will be resolved in favor of finding the alien a minor.” Administration for Children and Families, HHS Office of Refugee Resettlement, Division of Unaccompanied Children’s Services, Program Instruction (Mar. 23, 2009), AILA Doc. No. 09041364. But see Legal Opinion, King, GC, EOIR, EOIR’s Authority to Interpret the Term Unaccompanied Alien Child for Purposes of Applying Certain Provisions of TVPRA (Sept. 19, 2017), AILA Doc. No. 17100201 [opining that IJs are not bound by DHS’s determination regarding whether a respondent is a UAC and claiming that IJs may resolve any dispute about UAC status during the course of removal proceedings when it bears on the UACs eligibility for relief including the initial jurisdiction over asylum]. See also 8 CFR §236.3(c), 45 CFR §410.700, 84 FR at 44424-26 [determination based upon a “reasonable person” standard and the “totality of the circumstances”]; 84 FR at 44472-74 [totality of the circumstances as criteria].
8.j. Sexual Harassment—HHS has also set forth standards to prevent, detect and respond to sexual abuse and sexual harassment involving unaccompanied minor children in the care of ORR. 79 FR 77768-800 (Dec. 24, 2014); 45 CFR pt. 411.
8.k. Family Case Management Program—ICE previously established a Family Case Management Program as an alternative to detention that uses qualified case managers to promote participation in the hearing and removal process. Fact Sheet, ICE, Stakeholder Referrals to the ICE/ERO Family Case Management Program (Jan. 2016), AILA Doc. No. 16011104. This program has been eliminated under the current administration. ICE Ends Alternative Detention Program, Citing Few Removals, Law 360 (June 9, 2017).
|p. 540 (Ch. 3, ¶ X.T.5.g)||Continuance||
Replace the second sentence of paragraph 5.g.(1) with:
In Matter of L A B R , 27 I&N Dec. 405 (AG 2018), the AG elaborated on the “good cause” standard, holding that the IJ should consider primarily: (1) the likelihood that the noncitizen will receive collateral relief and (2) whether the relief will materially affect the outcome of the removal proceeding. The IJ should also consider (i) whether the noncitizen has exercised reasonable diligence in pursuing the relief; (ii) DHS’s position on the motion; (iii) the length of the requested continuance; (iv) the procedural history of the case; and (v) concerns of administrative efficiency. Matter of L-A-B-R- at 413-17 [giving as examples lacking “good cause” a request for a continuance to seek an I-601A waiver or to await the outcome of a collateral attack of a criminal conviction]. The courts have taken a broader view.
|p. 541 (Ch. 3, ¶ X.T.5.h)||Removal proceedings
Replace the Apparent Eligibility paragraph in 5.h with:
Apparent Eligibility—Pursuant to 8 CFR §1240.11(a) the IJ must notify the respondent of “all benefits enumerated in this chapter,” Matter of Cordova, 22 I&N Dec. 966, 970 n.4 (BIA 1999), including all relief available, particularly cancellation, adjustment and registry, if the respondent has “apparent eligibility” for such relief. 8 CFR §1240.11(a)(2). Unlike the previous regulation, this requires advising the applicant of both forms of VD. Cordova, supra. However, it may not extend to potential eligibility if there are certain facts, not disclosed to the IJ, for which the IJ could not have reasonably known. U.S. v. Moriel-Luna, 585 F.3d 1191, 1196–99 (9th Cir. 2009) [failure to inform applicant that he could have married his undisclosed fiancée or that his parents could naturalize thus making him eligible to AOS does not violate the regulation]. But a “failure to advise can be excused only when the petitioner’s eligibility for relief is not ‘plausible…’ and it is not the province of the IJ to determine the petitioner’s entitlement to the relief. C.J.L.G. v. Barr, __F.3d__,___(pp.12-14), 2019 WL 1967943 (9th Cir. 2019) (en banc) [IJ was required to inform juvenile of his apparent eligibility for Special Immigrant Juvenile status and failure to advise is only excusable where relief is not plausible]. “Apparent eligibility” arises “where the record fairly reviewed by an individual who is intimately familiar with the immigration laws—as IJs no doubt are—raises a reasonable possibility that the petitioner may be eligible for relief, the IJ must advise the alien of the possibility and give him the opportunity to develop the issue.” Asani v. INS, 154 F.3d 719, 727–28 (7th Cir. 1998) [IJ failed to advise as to suspension]. The IJ should also grant a continuance to allow the applicant to apply. C.J.L.G. v. Barr, __F.3d__,__(pp.16-17), 2019 WL 1967943 (9th Cir. 2019) (en banc), [IJ was required to inform juvenile of his apparent eligibility for Special Immigrant Juvenile status and should have granted continuance to allow him to apply]. In Matter of C B , 25 I&N Dec. 888 (BIA 2012), the BIA reversed the IJ for: (1) failing to advise the applicant of asylum/withholding and CAT after the respondent expressed a fear of returning to Guatemala; and (2) failing to notify respondent of post-completion VD after the respondent said he wanted to appeal his case and therefore was no longer eligible for the prehearing VD granted to him. See also Atunnise v. Mukasey, 523 F.3d 830, 838–39 (7th Cir. 2008) [K-3 eligible for an INA §212(d)(3)(A) waiver and IJ erred in not advising her of the right to apply]; Moran-Enriquez v. INS, 884 F.2d 420 (9th Cir. 1989) [reversing deportation order where respondent apparently eligible for §212(h) relief]; Duran v. INS, 756 F.2d 1338 (9th Cir. 1985) [test applied to former §243(h)]; U.S. v. Arrieta, 224 F.3d 1076 (9th Cir. 2000) [IJ’s failure to advise of apparent eligibility for INA §212(h) resulted in reversal of guilty plea for re-entering]; U.S. v. Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004) [permitting withdrawal of plea before sentencing where defendant argued that intervening St. Cyr decision was basis to dismiss indictment for illegal reentry because IJ failed to inform him of INA §212(c) relief even though he informed him of cancellation but only if he did not commit aggravated felony]; U.S. v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998) [failure to inform person married to USC of 212(h) waiver “taints” hearing, although not prejudicial in this case]; U.S. v. Maldonado, 33 F.Supp.3d 1178, 1185-90 (S.D. Cal. 2014) [granting motion to dismiss indictment for unlawful reentry because defendant, under “apparently eligibility” doctrine was never informed of his right to apply for suspension of deportation]; U.S. v. Andrade-Partida, 110 F.Supp.2d 1260 (N.D. Cal. 2000) [respondent never advised of INA §212(c) relief]; Matter of Cordova, supra [reversing final order where IJ improperly told applicant he was ineligible for VD because he lacked good moral character]; Matter of Ulloa, 22 I&N Dec. 725 (BIA 1999) [respondent inadmissible as public charge had the right to be informed by IJ of a waiver under §213]. But see Matter of R S H , 23 I&N Dec. 629, 644 (BIA 2003) [failure of IJ to advise respondents as to prehearing VD was not prejudicial because respondents provided no reason to believe they would have waived their rights to other relief]; U.S. v. Rodriguez-Aparicio, 888 F.3d 189, 196 (5th Cir. 2018) [despite “apparent eligibility” test there is no prejudice in context of dismissal of criminal indictment where IJ fails to inform applicant of relief because there is no property or liberty interest in discretionary relief and therefore denial did not rise to level of fundamental unfairness]; Alva-Arellano v. Lynch, 811 F.3d 1064 (8th Cir. 2016) [where respondent did not express fear and did not present any documents, IJ had no obligation to inform respondent about asylum and refusal to reopen was warranted]; U.S. v. Valdez-Novoa, 780 F.3d 906, 912-21 (9th Cir. 2015) [defendant not prejudiced under “apparent eligibility” doctrine where he was ineligible for VD because he was convicted of an aggravated felony and therefore ineligible for VD]; U.S. v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010) (en banc) [where applicant was not eligible for INA §212(c) relief at the time of his deportation proceeding and would not be eligible for 8 months and a change in the law, the IJ did not err under “apparent eligibility” in failing to inform him]; Valencia v. Mukasey, 548 F.3d 1261 (9th Cir. 2008) [no due process violation to fail to inform respondent of asylum, withholding and CAT where there was no plausible basis for such an application]; Mema v. Gonzales, 474 F.3d 412, 420–21 (7th Cir. 2007) [no due process violation for failing to inform respondent under §1240.11(a)(2) of his right to withdraw his application for admission where there is no showing of prejudice]; Bejko v. Gonzales, 468 F.3d 482, 487–88 (7th Cir. 2006) [same]; Bonhometre v. Gonzales, 414 F.3d 442, 448–50 (3d Cir. 2005) [no due process violation for failure to inform respondent of INA §§212(c), 212(h) and CAT because respondent was not eligible for §212(c)/212(h), and no evidence was presented regarding CAT claim]; U.S. v. Aguirre-Tello, 353 F.3d 1199, 1204–05 (10th Cir. 2004) (en banc) [no constitutional right to be informed of discretionary relief that might be available such as INA §212(c)]; U.S. v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002) [failure to inform defendant of §212(c) relief does not rise to the level of fundamental unfairness and does not affect the conviction because there is no liberty or property interest in §212(c) relief].
|p. 650 (Ch. 3, ¶ X.T.7.w.)||Removal proceedings
Add to the end of subparagraph (3):
Zuniga Romero v. Barr, __F.3d___, 2019 WL 4065596 (4th Cir. 2019) [rejecting Matter of Castro-Tum and relying on Kisor, the Court found that the regulations conferring general authority to administratively close cases under 8 CFR §§1003.10(b), 1003.1(d)(1)(ii) were not ambiguous and even if they were the AG’s decision is not entitled to deference under Auer or Skidmore because it constituted “unfair surprise”];
|p. 754 (Ch. 4, ¶ III.A.6.d.(1))||Asylum
Particular social group
Replace the first full paragraph, discussing social group based on family, with the following:
Matter of L-E-A Standard Regarding Families and Nexus—The AG, reversing the former decision in Matter of L E A , 27 I&N Dec. 40 (BIA 2017) and ignoring scores of cases from the circuit courts, has now concluded that: “[A] family based group will not constitute a particular social group unless it has been shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor.” Matter of L-E-A-, 27 I&N Dec. 581, 582, 586 (A.G. 2019) [“An applicant must establish that his specific family group is defined with sufficient particularity and is socially distinct in his society. In the ordinary case, a family group will not meet that standard, because it will not have the kind of identifying characteristics that render the family socially distinct within the society in question”]. The AG found that “[i]f cartels or other criminals created a cognizable family social group every time they victimized someone, then the social distinction requirement would be effectively eliminated.” Id at 592. So, “to qualify … he must show that his proposed [specific family unit] group has some greater meaning in society …. If an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way…’.”Id. at 594. The AG left intact, however, the former opinion’s stringent reading of “nexus,” finding no nexus simply because a family member was persecuted due to being the son of man a cartel was interested in having sell its drugs. Under the facts in Matter of L-E-A, the court first rejected the claim where drug cartel members wished to use the father’s store to sell drugs and they threatened his son because “the cartel’s motive to increase its profits … was one central reason for its actions [and] any motive to harm the respondent because he was a member of the family was, at most, incidental.” But see Gonzalez Ruano v. Barr, 922 F.3d 346, 353-57 (7th Cir. 2019) [where CJNG gang in Mexico terrorized husband, including kidnapping and death threats and committed sexual violence against applicant’s wife because gang member wanted her as his property, the applicant established a nexus between his family as a social group and the persecution and it was not merely a personal quarrel]; W.G.A. v. Sessions, 900 F.3d 957, 964-65 (7th Cir. 2018) [finding L-E-A- did not change the legal standard and that persecution on account of membership in a nuclear family arising out of brother’s forced former membership in Mara 18 is a social group]; Salgado-Sosa v. Sessions, 882 F.3d 451, 457-59 (4th Cir. 2018) [kinship ties were at least “one central reason” for persecution because: (i) applicant was threatened by MS-13 members on account of his relationship to his stepfather and his family; and (ii) applicant was targeted for his family membership even if the motive for attacking family members such as his stepfather was financial gain or personal vendettas]; Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017) [the family relationship was one central reason for the threats against the wife and children of the deceased where the husband’s former employer, connected to criminal activity, feared the wife would go to the police]. The one central reason requirement only applies to asylum post-REAL ID and not to withholding or CAT. Ayala v. Sessions, 855 F.3d 1012, 1020-21 (9th Cir. 2017) [reasonable fear claim for withholding and CAT did not require that the court find that family ties was one central reason for extortion, but only a reason].
|p. 795 (Ch. 4, ¶ III.D.7)||Asylum
Safe third country
Replace section 7 with the following:
7. Safe Third Country Agreements: INA §208(a)(2)(A). Congress allows for an exception to the requirement that a person physically present or arrives in the US (whether or not at a port of entry) must be allowed to apply for asylum. The “Safe Third Country Exception” to the absolute requirement to permit an application applies where there is a “bilateral or multilateral agreement” that would permit the applicant to have “a full and fair procedure for determining a claim to asylum or equivalent temporary protection” in a third country (which is not the country of the applicant’s nationality) but only after there is a finding that the applicant’s “life or freedom would not be threatened” on account of one of the five enumerated grounds for withholding if sent to that third country. This also now includes a fear of torture if sent to the third country in light of our agreement under CAT.
7.1. Canadian-U.S. Agreement
(1) Generally—The applicant may also be removed, pursuant to a bilateral or multilateral agreement, to a safe third country in which the person’s life or freedom would not be threatened and where he or she would have access to a full and fair asylum procedure, unless the AG finds it is in the public interest to grant asylum, INA §208(a)(2)(A). The U.S. entered into a “Safe Third Country Agreement” with Canada effective Dec. 29, 2004. See 8 CFR §§208.4(a)(6), 208.30(e)(6), 212.5(e)(2)(iii), 1003.42(h), 1208.4(a)(6), 1240.11; 69 FR 69480–97 (Nov. 29, 2004); 69 FR 10620–27 (Mar. 8, 2004). See also 84 FR 63994-011 (Nov. 19, 2019).
(2) Procedure—The Canada-U.S. agreement requires that the country where the asylum seeker was last present (“country of last presence”) is obligated to accept the return of the asylum seeker from the receiving country. Thus persons arriving from Canada or in transit during removal from Canada are barred from applying for asylum, withholding, or CAT in the U.S. and they are required to return to Canada for consideration of their claims. In effect, the agreement requires persons seeking refugee protection to make a claim in the first country they arrive in (U.S. or Canada) unless they qualify for an exception. The agreement does not apply to citizens of the U.S. or Canada and does not apply to stateless persons who are habitual residents of Canada or the U.S. 8 CFR §208.30(e)(6)(iii)(A). The agreement applies only to persons seeking admission at land border ports of entry as defined in 8 CFR §100.4(a) and 19 CFR §101.3(b)(1), on the U.S./Canada border and to certain persons deported from Canada who are in transit through the U.S. (or deported from the U.S. and in transit through Canada). To determine whether an applicant is subject to the agreement, the U.S. engages in a “threshold screening” process. Lesson Plan, RAIO, Safe Third Country Threshold Screening (May 9, 2013), Sec. III-IV, AILA Doc. No. 17122217. A determination as to the applicability of the agreement, as well as any exceptions, will be made by an AO, not by CBP, and will be based upon the preponderance of the evidence. Id.; Memo, Ahern, Asst. Comm. Field Operations, CBP, “Safe Third Country Agreement Implementation,” (Dec. 22, 2004), AILA Doc. No. 05033110; 8 CFR §208.30(e)(6). If a person deported from Canada is transiting through the U.S. and seeks asylum, he will be returned to Canada to seek asylum there or, if brought to CBP’s attention at any airport within the U.S., will have his parole status revoked and will be treated as an arriving alien for purposes of expedited removal/credible fear processing. If a person seeking refugee status in Canada has been illegally in the U.S., he will be returned to the U.S. and put in removal proceedings as a deportable person. Memo, Ahern (Dec. 22, 2004); 69 FR at 69484 [unless the person is a parolee in the U.S., individuals returned from Canada “will not be subject to expedited removal because they will not meet the definition of ‘arriving alien’ ”]. But see Matter of R D , 24 I&N Dec. 221 (BIA 2007) [deportation charge dismissed where person should have been charged as an arriving alien when he was returned to the U.S. pursuant to the U.S.-Canada agreement].
(3) Exceptions to Enforcement of the Agreement [8 CFR §208.30(e)(6)(i)-(iii); Lesson Plan, RAIO, Safe Third Country Threshold Screening (May 9, 2013), Sec. V, AILA Doc. No. 17122217 —If the applicant establishes by a “preponderance of the evidence” that one of the following exceptions applies, he or she will be given the normal credible-fear interview:
(4) Moratorium on Removal—Notwithstanding the agreement, Canada has certain exceptions that permit people to apply for asylum even if they otherwise fall within the treaty. These are: family members, unaccompanied minors, document holders, and in the public interest (e.g., a person facing the death penalty abroad). The former country exceptions, which allowed persons granted temporary protection in Canada to apply for asylum, were eliminated on July 23, 2009. See http://bit.ly/CA-SafeThirdCountry.
(5) IJ Jurisdiction—If a person is being returned to Canada pursuant to a decision by DHS under the agreement, the IJ does not have jurisdiction to review the decision that the person should be returned to Canada. 8 CFR §§1003.42(h). But the IJ does have jurisdiction to review, in the first instance, a claim by DHS that a respondent is barred from asylum because of the agreement under INA §208(a)(2)(A). 8 CFR §§1208.4(a)(6), 1240.11(g). The IJ has the authority to determine whether, by a preponderance of the evidence, the agreement or any exception applies. 8 CFR §1240.11(g)(2). Even if the agreement applies and no exception is available, the applicant may still apply for other available relief. 8 CFR §1240.11(g)(4); Memo [Interim OPPM 04-09], Creppy, Chief IJ, EOIR (Dec. 28, 2004), AILA Doc. No. 05012472. The AG however, has determined that withholding and CAT relief, in addition to asylum, are not available. 8 CFR §1240.11(g)(4).
(6) Federal Jurisdiction—Habeas challenge to expedited removal order due to Canadian-US agreement dismissed for lack of jurisdiction under INA §242(e)(2). Bansci v. Nielsen, 321 F.Supp.3d 729, 734-35 (W.D Tx. 2018) [also finding that petitioners not entitled to invoke Suspension Clause despite Boumediene because not technically in the US].
8. Asylum Cooperative Agreements (ACAs)—84 FR 63994-011 (Nov. 19, 2019)
8.1. Generally—Distinguishing Canada (see 84 FR at 63996 & n. 5), DOJ and DHS established regulations for the “threshold screening” as to which country will consider an applicant’s asylum claim where the US has entered into what it calls an Asylum Cooperative Agreement. The purpose is to modify existing regulations relating to expedited removal and section 240 proceedings to implement the Asylum Cooperative Agreements which now exist with El Salvador, Guatemala and Honduras. The agreements do not require that the person seeking asylum in the US previously transited through the ACA third country. 84 FR at 64002 [“…the terms of section 208(a)(2)(A) do not limit the applicability of ACAs to aliens who have traveled through the third country in transit to the United States”]. The rule will apply prospectively to person who arrive at a US port of entry, or enter or attempt to enter between ports of entry on or after Nov. 19, 2019.
(1) Screening Procedures by DHS—8 CFR §208.30(e)(7). Pursuant to INA §208(a)(2)(A)’s requirement that a person may not be sent to a country where his life or freedom would be threatened and pursuant to the exceptions to the application of the Asylum Cooperative Agreements (e.g. UACs, persons with valid entry documents, or persons not required to obtain a visa) an officer shall conduct an interview consistent with credible fear procedures in 8 CFR §208.30(d) to determine whether an exception applies or the person’s life or freedom would be threatened if sent to the receiving third country. However, the regulations specifically preclude providing prior information or understanding by the applicant of the process under 208.30(d)(2) and prohibit a representative and the submission of evidence under 208.30(d)(4). 8 CFR §208.30(e)(7). The officer, however, must advise the applicant of the exceptions and provide written notice of fear of removal because of persecution or torture, but the burden is on the applicant to affirmatively state a fear of persecution or torture to the third country before the officer will take steps to determine the claim. Id. If the officer determines with the concurrence of a supervisory asylum officer that an exception does not apply and the person has not demonstrated a fear of persecution or torture to the receiving country under the more likely than not standard, she is ineligible to apply for asylum, withholding or CAT in the US. 8 CFR §208.30(e)(7)(i)(A). If the supervisory officer disagrees she may remand it back to the asylum officer. 84 FR at 64002. The applicant has the burden of proof by a preponderance of the evidence. 84 FR at 64002-03. If ineligible, the applicant is advised she can pursue asylum or a temporary equivalent in the third country and shall be removed to the receiving country 8 CFR §§208.30(e)(7)(i)(A), (i)(B) unless she voluntarily withdraws her request for asylum. Id. If the applicant establishes that an exception applies or that, by a preponderance of the evidence, she is eligible because she fears persecution or torture in the third country, the officer shall “then proceed immediately to a determination concerning whether the alien has a credible fear of persecution or torture under paragraph (d) of this section.” 8 CFR §208.30(e)(7)(ii). If the ACA country is the applicant’s country of nationality, he or she may not be removed to that country. 8 CFR §208.30(e)(7) (iii)(A). The Director of USCIS may also determine that it is in the public interest not to send the applicant to a third country but to allow her to seek asylum in the US. 8 CFR §208.30(e)(7)(iii)(B). The officer’s decision becomes final when reviewed by a supervisory asylum officer. 8 CFR §208.30(e)(8).
(2) IJ Review of Asylum Officer Under ACA—An IJ has no jurisdiction to review a determination by an asylum officer that an applicant is ineligible to apply for asylum pursuant to a bilateral or multilateral agreement and should be removed to an ACA country. 8 CFR §1003.43(h)(3). Similarly, an IJ has no jurisdiction to review a DHS determination that a person being removed from a receiving country in transit through the US should be returned to the receiving country to pursue asylum. 1003.43(h)(4). But if the asylum officer has determined the applicant may not be removed pursuant to 208(a)(2)(A) and subsequently makes a negative credible fear determination, the IJ has jurisdiction to review it. 1003.43(h)(3).
(3) IJ Independent Review of ACA. IJs also have authority to consider issues under INA 203(a)(2)(A) when a respondent is placed in a 240 removal proceeding. 8 CFR §1208.4(a)(6). See also 8 CFR §208.30(e)(6), (e)(7). The IJ must consider whether an exception to the ACA agreement applies or whether the applicant has demonstrated it is more likely than not, by a preponderance of the evidence, that he or she would be persecuted of account of a protected ground or tortured if sent to the third (ACA) country. In making this determination, the AG specifically recognizes the obligation of non-refoulement. 84 FR at 63999. If the IJ determines that: (i) the ACA agreement does not apply to the applicant; (ii) an exception under the ACA treaty does not apply; and (iii) the applicant will not suffer persecution or torture if sent to the ACA third country, the applicant is ineligible to apply for asylum, withholding or CAT in the US, 8 CFR §1240.11(h)(2), but may apply for any other relief from removal for which he or she is eligible. 8 CFR §1240.11(h)(4). An applicant may also voluntarily abandon his or her claim for asylum. 84 FR at 63998. However, an applicant may apply for asylum where DHS files a written notice that it is in the public interest to allow the applicant to pursue asylum in the US. 8 CFR §1240.11(h)(3). To the extent that an applicant in section 240 proceedings is rendered ineligible to apply for asylum by more than one ACA, the IJ “shall enter alternate orders of removal to each country that is a signatory to an applicable ACA” and DHS may exercise its discretion when selection from alternate orders as authorized by DHS field guidance. 8 CFR 1240.11(h)(1). See also McHenry, Director EOIR, Guidelines Regarding New Regulations Providing for the Implementation of Asylum Cooperative Agreements, PM 20-04 (Nov. 19, 2019), AILA Doc. No. 19112036.
8.2. El Salvador-U.S. Agreement—Agreement Between the USA and Republic of El Salvador For Cooperation in the Examination of Protection Claims (Sept. 2019), AILA Doc. No. 19092400.
(1) Once the agreement is in force the parties shall review it within three months. Art. 7 (4). Either party may terminate the agreement upon six months written notice. Art. 9 (2). Either party, upon written notice to the other party, may suspend the application of the agreement for an initial period of up to three months and the suspension may be renewed in three-month increments. Either party may suspend any part of the agreement. Art. 9 (3).
(2) The agreement permits the transfer to El Salvador of persons seeking asylum/CAT protection in the U.S. with two exceptions: (1) no Unaccompanied Minors will be accepted; and (2) no person who arrived in the US with a validly issued visa or other valid admission document other than a transit visa issued by the U.S. or arrived and was not required to obtain a visa by the U.S. will be accepted. Article 4. El Salvador shall be notified in advance of any transfer. Art. 7 (1).
(3) Unaccompanied minor is defined as under 18 without a parent or legal guardian present and available to provide care and custody in the country where the UAC is encountered. Art. 1 (4).
(4) El Salvador will not return a person to a third country until an administratively final adjudication of their claim has been made and shall not remove any person seeking protection to a third country based upon any other agreement or regulatory designation. Art. 3 (1 & 2).
(5) U.S. is responsible for the individual until the transfer is complete. Art. 3 (3).
(6) Either party may examine any protection claim made to that party where it is in the public interest to do so. Art. 5.
8.3. Guatemala-U.S. Agreement—Agreement Between the US and Guatemala On Cooperation Regarding the Examination of Protection Claims (July 26, 2019), 84 FR 64095-99 (Nov. 20, 2019)
(1) The agreement is for two years but renewable. Art. 8.1. Either party may terminate the agreement by giving three months written notice. Art. 8.2. Either party may suspend the agreement for three months upon written notification and may extend the three month suspensions. Art. 8.3.
(2) The agreement applies to any person “who submits a request for protection in the territory” of Guatemala or the U.S. Art. 1.2, but the request must be “in accordance with the respective laws and policies of the Parties,” Art. 1.1, and the system to determine protection “refers to the set of policies, laws, administrative and judicial practices” that each country “uses to make a decision on requests for protection.” Art.1.3.
(3) The agreement allows the US to transfer to the Republic of Guatemala under standard operating procedures including notifying Guatemala in advance of the transfer of any person who arrives in the U.S. at a port of entry or between ports of entry on or after July 26, 2019 (after an exchange of notes that each party has complied with domestic procedures, Art. 8.1). The exceptions to transfer are: unaccompanied minors and persons who arrive in the U.S. with validly issued visas or other admission documents (other than a transit visa) or persons who the US determines were not required to obtain a visa. Article 4.
a. An “unaccompanied minor” refers to an applicant who has not reached the age of 18 and whose parent or legal guardian is not present or available to provide care or physical custody. Art. 1.4. The parties shall apply the agreement with respect to UACs “in accordance with their respective domestic laws.” Article 4.3.
b. Notwithstanding any other provision Guatemala or the US may examine any request for protection submitted to it when it decides it is in the country’s public interest to do so. Art. 5.
c. The US makes the final determination as to who qualifies for an exception. Art.4.5.
(5) Guatemala agrees not to expel or return applicants unless the application is abandoned by the applicant or is formally rejected through an administrative decision. Art. 3.
(6) The Agreement does not apply to citizens or nationals of Guatemala or stateless individuals habitually residing in Guatemala. Art. 2.
|p.836 (Ch. 4, ¶ VIII.N)||TPS||
Add to the paragraph concerning TPS for nationals of Somalia:
TPS was again extended for nationals of Somalia, until Mar. 17, 2020. For registration periods and employment authorization, see 83 FR 43695-700 (Aug. 27, 2018).
|p.838 (Ch. 4, ¶ VIII.T)||TPS||
Add to the paragraph concerning TPS for nationals of Yemen:
TPS was again extended for nationals of Yemen, until Mar. 3, 2020. For registration periods and employment authorization, see 82 FR 40307-13 (Aug. 14, 2018).
|p. 939 (Ch. 4, ¶ XII.B.2.h.(1)(c))||Asylum
Particular social group
Replace subparagraph (c) with:
AG Opinion in Matter of L-E-A- Undermining Family as a Social Group— The AG, reversing in part the former decision in Matter of L E A , 27 I&N Dec. 40 (BIA 2017) and ignoring scores of cases from the circuit courts, has now concluded that: “[A] family based group will not constitute a particular social group unless it has been shown to be socially distinct in the eyes of its society, not just those of its alleged persecutor.” Matter of L-E-A-, 27 I&N Dec. 581, 582, 586 (A.G. 2019) [“An applicant must establish that his specific family group is defined with sufficient particularity and is socially distinct in his society. In the ordinary case, a family group will not meet that standard, because it will not have the kind of identifying characteristics that render the family socially distinct within the society in question.”]. The AG found that “[i]f cartels or other criminals created a cognizable family social group every time they victimized someone, then the social distinction requirement would be effectively eliminated.” Id. at 592. So, “to qualify … he must show that his proposed [specific family unit] group has some greater meaning in society …. If an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way…’.”Id. at 594.
Former L-E-A- Opinion on Nexus—The BIA determined in the first Matter of L-E-A- decision, 27 I&N Dec. 40 (BIA 2017), that when it came to a social group claim based upon family, “the respondent must demonstrate that the family relationship is a least one central reason for the claimed harm” and that there must be a “nexus” between the threatened harm and the family. The AG left this narrow reading of nexus in place and affirmed the decision of the Board in that respect. Matter of L E A , 27 I&N Dec. 40 (BIA 2017), aff’d as to nexus finding only, Matter of L-E-A-, 27 I&N Dec. 581, 596-97 (AG 2019) [finding no nexus simply because a particular social group of family members exists and the family members experience harm where drug cartel members wished to use the father’s store to sell drugs and they threatened his son; “the cartel’s motive to increase its profits … was one central reason for its actions [and] any motive to harm the respondent because he was a member of the family was, at most, incidental”]. See also Sosa-Perez v. Sessions, 884 F.3d 74 (1st Cir. 2018) [asylum and withholding denied where, despite repeated acts of violence against various family members over three decades, the precipitating 2013 incident was insufficient to demonstrate persecution due to kinship because applicant could not show nexus, that the attack was due to her family status]; Ruiz-Escobar v. Sessions, 881 F.3d 252 (1st Cir. 2018) [same as Sosa-Perez in that despite allegation that he had been persecuted based upon family membership in Honduras, respondent stated he had no idea who attacked him and offered no factual basis for the reasons for family members deaths]; Morales v. Sessions, 860 F.3d 812 (5th Cir. 2017) [extortion and assault by gang member against mother cannot be imputed to daughter and verbal threat to take it out on El Salvadoran daughter was insufficient]; Cambara-Cambara v. Lynch, 837 F.3d 822 (8th Cir. 2016) [extortionate threats by members of Mara 18 in Guatemala against brothers was not because of family membership but as prosperous businessmen]; Giraldo-Padron v. Lynch, 846 F.3d 21, 25 (1st Cir. 2016) [applicant for reopening due to changed circumstances in Colombia failed to provide nexus evidence, other than her own speculation, that she would be harmed due to her membership in a family involved in narco-trafficking]; Marin-Portillo v. Lynch, 834 F.3d 99, 101-02 (1st Cir. 2016) [fear that police officer who killed respondent’s father would retaliate against him in anticipation of counter-retaliation is based upon personal motive and not on family as a group]. But see Gonzalez Ruano v. Barr, 922 F.3d 346, 353-57 (7th Cir. 2019) [where CJNG gang in Mexico terrorized husband, including kidnapping and death threats and committed sexual violence against applicant’s wife because gang member wanted her as his property, the applicant established a nexus between his family as a social group and the persecution and it was not merely a personal quarrel]; W.G.A. v. Sessions, 900 F.3d 957, 964-65 (7th Cir. 2018) [finding L-E-A- decision by BIA did not change the legal standard and that persecution on account of membership in a nuclear family arising out of brother’s forced former membership in Mara 18 is a social group]; Salgado-Sosa v. Sessions, 882 F.3d 451, 457-59 (4th Cir. 2018) [kinship ties were at least “one central reason” for persecution because: (i) applicant was threatened by MS-13 members on account of his relationship to his stepfather and his family who fought MS-13; and (ii) applicant was targeted for his family membership even if the motive for attacking family members such as his stepfather was financial gain or personal vendettas]; Zavaleta-Policiano v. Sessions, 873 F.3d 241 (4th Cir. 2017) [one central reason was applicant’s familial relationship to father who was threatened and extorted b MS-13]; Ayala v. Sessions, 855 F.3d 1012, 1020-21 (9th Cir. 2017) [reasonable fear claim for withholding and CAT did not require that the court find that family ties was one central reason for extortion, but only a reason]; Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017) [reversed BIA denial based upon family relationship where the family relationship was one central reason for the threats against the wife and children of the deceased because the husband’s former employer, connected to criminal activity, feared the wife would go to the police].
|p. 1025 (Ch. 5, ¶ III.S.5)||RFE
Paragraph 5 should read as follows:
5. Request for Evidence (RFEs) & Notice of Intent to Deny (NOIDs)
8 CFR §103.2(b)(8); AFM at §§10.1(c), 10.5(a)(2), 10.5(b)(4), 11.1(m), 25.2(d)(3), 38.1(e); USCIS Policy Memo, PM-602-0163, Issuance of Certain RFEs and NOIDs (June 13, 2018), AILA Doc. No. 18071377; USCIS, Adjudicating I 601 Waivers (Aug. 2015) at 17-50, AILA Doc. No. 15082741a [RFE table for waivers]
“In response to an RFE or a NOID, applicants, petitioners, or requestors must submit all of the requested materials together at one time, along with the original RFE or NOID. If only some of the requested evidence is submitted, USCIS will consider this to be a request for a decision on the record. See 8 CFR §103.2(b)(11). Additionally, failure to submit requested evidence which precludes a material line of inquiry will be grounds for denying the request. See 8 CFR §103.2(b)(14).” Policy Memorandum, USCIS, PM-602-0163, Issuance of Certain RFEs and NOIDs (June 13, 2018), at 4, AILA Doc. No. 18071377. The regulations do not require adjudicators to issue RFEs or NOIDs before denying an application, 8 CFR §103.2(b)(8), and USCIS has now rescinded its June 3, 2013 policy memo, which provided that an RFE or NOID would issue unless there was “no possibility” that the deficiency could be cured by submission of additional information. PM-602-0163 at 2. An RFE or NOID need not be issued where there is a statutory basis for denial because the applicant, for example, does not have a qualifying relative needed for a waiver or family-based petition. AFM 10.5(a)(2); 72 FR 19100, 19103 (Apr. 17, 2007). Similarly, USCIS may issue a denial without an RFE or NOID where the filed application/petition lacks initial qualifying evidence such as a waiver application with little or no supporting evidence or where a document is required such as an I-864 affidavit in a family-based petition. AFM 10.5(a)(2). The applicant/petitioner does not have to establish eligibility beyond a reasonable doubt as the standard is only preponderance of the evidence. Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/2 (Feb. 16, 2005), AILA Doc. No. 05021810 (rescinding May 4, 2004 memo) [“Adjudicators too often issue an RFE for additional types of evidence that could tend to eliminate all doubt and all possibility for fraud”]. An officer may issue a follow-up RFE if the previous RFE “opens up new lines of inquiry.” However, an RFE “should ask for all the additional evidence the officer anticipates having to request.” AFM at 10.5(a)(2). RFEs should not be issued because there is suspected fraud, but instead should be referred to FDNS. Memo, Ohata, Director SC Operations, Guidance on the Limitations of Denials Based on Requests for Evidence Standards, (Jan. 6, 2005), AILA Doc. No. 11051265. When submitting a response to an RFE the applicant must demonstrate the evidence establishes eligibility at the time of originally filing. 8 CFR §103.2(b)(12). An RFE should only be issued where a specific piece of information is missing; the request should not be a “broad brush” request. It is not normally appropriate for officers to “dump” the entire RFE template and send it to the applicant. Memo, Yates (Feb. 16, 2005), supra. The time period to respond to an RFE is “flexible” depending upon the subject matter and should be 30 days to respond to an RFE for an I 539 or I 601A (provisional waiver), and may be less, but never more, than 12 weeks for all other applications. 8 CFR §103.2(b)(8)(iv); Policy Memo (Interim), USCIS, PM 602-0040, Changes in Standard Timeframes for Applicants or Petitioners to Respond to Requests for Evidence, (July 7, 2011), AILA Doc. No. 11071334; AFM at 10.5(b), 25.2(e)(3), 38.1(e)(6) and AFM Appendix 10-9; USCIS Policy Memo, PM-602-0081, Standard Timeframe for Applicant to Respond to RFE for Evidence Issued in Relation to a Request for a Provisional Unlawful Presence Waiver, Form I 601A, (Mar. 1, 2013), AILA Doc. No. 13031842. If service is by mail there is always an additional three days to respond. 8 CFR §103.8(b). If by mail to a foreign country, USCIS will give an additional 14 days for RFE/NOID response. AFM 10.5(b)(3), App. 10-9. To question an RFE contact firstname.lastname@example.org
A NOID is appropriate where a statute or regulation requires it: Memo, Yates (Feb. 16, 2005), supra VAWA petitions (8 CFR §§204.2(c)(3)(ii) and (e)(3)(ii)), AOS involving certain physicians (8 CFR §245.18(i)) and certain legalization applications (8 CFR §245a.20(a)(2))]. A NOID is also required when derogatory or other information is uncovered by the government or internally obtained from a government source that is unknown to the individual 8 CFR §103.2(b)(16). However, if the information is classified the officer may decide not to disclose it. 8 CFR §103.2(b)(16)(ii) and (iv); PM 602-0163 at 4 n.4. A NOID, even one based upon a claim of fraud, may be overcome. Matter of ___ (AAO NSC Nov. 8, 2012), reported in 18 Bender’s Immigr. Bull. 385, 421 (Apr. 15, 2013) [petitioner overcame NOID where beneficiary relied on employment experience from former employer convicted of fraud]. An applicant only has 30 days to respond to a NOID. Memo, Yates (Feb. 16, 2005), supra. However, an officer may reduce the time periods only after concurrence of a supervisor. Policy Memo (Interim), USCIS, PM 602-0040, Changes in Standard Timeframes for Applicants or Petitioners to Respond to Requests for Evidence, (July 7, 2011), AILA Doc. No. 11071334; AFM at 10.5(b), 25.2(e)(3), 38.1(e)(6) and Appendix 10-9. There is an additional three days if the RFE or NOID is mailed. 8 CFR §103.5a(b). Weekends and holidays are counted but if the final day falls on a weekend or holiday “the period shall run until the end of the next day which is not a Saturday, Sunday or a legal holiday.” 8 CFR §1.2 [definition of “day”]. An RFE/NOID may also direct an applicant to appear for biometrics capture. If the applicant fails to appear for biometrics or other required in-person process, the application or petition “shall be considered abandoned and denied” unless by the appointment date USCIS receives a change of address or rescheduling request that the agency concludes warrants the failure to appear. 8 CFR §103.2(b)(13)(ii).
|p. 1064 (Ch. 5, ¶ VI.D.11)||F-1
Add to the end of paragraph 11:
Distinguishing Out-of-Status from Termination—In Jie Fang v. Director, USCIS, 935 F.3d 172, 176 & n.22 (3d Cir. 2019) the Third Circuit raised a distinction often overlooked in the regulations. While a student may be out-of-status for engaging in certain conduct, the only basis to terminate student status is found at 8 CFR §214.1(d). In Jie Fang ICE terminated hundreds of student’s status without authorization and inconsistent with 214.1(d) because of their claim that they committed fraud by being enrolled in an ICE created fraudulent university. But 214.1(d) only allows termination in highly limited circumstances and would have required ICE to publish a notification in the Federal Register that termination was due to “national security, diplomatic or public safety reasons.” Jie Fang, 935 F.3d at 176 & n.22.
|p. 1116 (Ch. 5, ¶ VII.C.7.e.3)||H-4
Extension of Status
Paragraph (3) should read as follows:
Extensions for Spouse/Children—The regulatory language at 8 CFR §214.2(h)(13)(iii)(D)(9) and 8 CFR §214.2(h)(13)(E)(6) and the regulatory history at 81 FR at 82452 appear to state that no extensions beyond the 6-year period will be given to anyone but a principal beneficiary. However, these regulations and regulatory history are addressing the unique problem of a spouse who also has H-1B status (not H-4 dependent status) and seeks to use the extensions under 104(c) and 106(a) granted to his or her spouse as a basis for his or her extension. Thus, an H-1B spouse may not rely on his or her spouse’s 104(c) or 106(a) extension, as he or she must obtain his or her own extension. These regulations and regulatory history are not addressing whether an H-4 dependent spouse/child may obtain an extension beyond the six year period. It is clear from 8 CFR §214.2(h)(9)(iv) that H-4 dependent spouses and children may be granted extensions beyond the 6-year period [“for the same period of admission or extension as the principal spouse or parent”]. Also denying an extension under 106(a) appears clearly contrary to 8 CFR §214.2(h)(9)(iv) which grants employment authorization to those spouses extended through 106(a) or (b). See 8 CFR §214.2(h)(9)(iv) [A spouse of an H-1 who has an H-4 may apply for work authorization if the H-1B has had his or her status extended under 106(a), (b) of AC21 or already has an approved I 140 petition]. It is also clear from USCIS memos that an H-1B who has reached the 6-year maximum may C/S to H-4 and remain in the U.S. based on the principal’s status. Memo, Yates, Acting Assoc. Director, USCIS, HQBCIA 70/6.2.8-P (Apr. 24, 2003) at B, AILA Doc. No. 03050145; Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/6.2.8-P (May 12, 2005) at p.10, AILA Doc. No. 05051810. An H-4 or L-2 may change to H-1B or L-1, because the time spent in H-4 or L-2 is not counted toward the 6-years for H-1Bs, or 5/7 years for L-1s. Memo, Aytes, Assoc. Dir., Domestic Operations, USCIS, HQPRD 70/6.2.8, 70/6.2.12, AD 06-29 (Dec. 5, 2006), AILA Doc. No. 06122063; AFM §31.2(d)(2). An H-4 is also free to change to H-2 and H-3 categories and the time spent as an H-4 will not count against the maximum allowable period for H-2 and H-3 as well as H-1B. Policy Memo (Interim), USCIS, PM-602-0092, Additional Guidance on Determining Periods of Admission for [H-4], (Nov. 11, 2013), AILA Doc. No. 13111801; AFM 31.2(d)(2). See in this section ¶ 8.b (p.1117), infra.
|p. 1178 (Ch. 5, ¶ VII.K.11.j.(3))||H-2B
Replace paragraph (3) with the following:
(3) Employer Recruitment [20 CFR §§655.40 to .48; 84 FR 62431-447 (Nov. 15, 2019)]
(a) Advertisements [20 CFR §655.42]
i) As a result of recent final regulations, 84 FR 62431, the employer is no longer required to advertise in newspapers. Instead “DOL will carry out the electronic advertising itself by posting H-2B job opportunities on SeasonalJobs.dol.gov, an improved and expanded version of the electronic job registry that DOL is required to maintain under...20 CFR §655.34.” Once a CO has accepted an employer’s H-2B application for further processing, “DOL posts a brief description of the employer’s job opportunity on SeasonalJobs.dol.gov that includes a link to a full copy of the employer’s job order.” 84 at 62438. DOL will make the ads available in multiple languages by allowing language translation services to access it and will also make a standard set of job data available to third-party job search websites. The CO, however, is not foreclosed from requiring additional advertising in appropriate circumstances. 20 CFR §655.46; 84 FR at 62441-42.
|p. 1200 (Ch. 5, ¶ VII.N.2.d)||L-1||
Add to paragraph 2.d.:
Clarifying Policy Memorandum—On Nov. 15, 2018, USCIS issued a clarifying policy memorandum on several issues regarding the one-year-abroad provision. USCIS Policy Memo, PM-602-0167, AILA Doc. No. 18112933; AFM 32.3. The memo sets forth several principles: (1) the one year abroad is measured from the time of filing the L-1 petition, not admission, so that an applicant must have one year of the prior three years abroad prior to filing an L-1 petition; (2) periods of employment in the U.S. even for the petitioning organization do not satisfying the one-year-abroad requirement, nor can any time spent in the U.S. in any capacity; (3) brief trips into the U.S. on other visas such as a B-1 or B-2 do not interrupt the one-year period but are not counted toward it; for example, a person who spends 60 days in the U.S. over a year period would not accrue the one year until after one year and 60 days were reached, but each entry does not interrupt the one-year period requiring the applicant to start the one year anew; (4) lawfully working for the qualifying organization in the U.S. in another capacity such as an E-2 or H-1B does not count in computing the three-year period; for example, if a beneficiary worked in the U.S. in H-1B status for the qualifying organization from Jan. 2, 2017 to Jan. 2, 2018 and then the petitioner filed for L-1 for the employee, the pertinent three-year period would be Jan 1, 2014 to Jan. 1, 2017, thus not counting the year in H-1B status; (5) periods in the U.S. as an L-2, or F-1 (including OPT), or not being employed or being employed with another unrelated company do count in computing the three years and therefore do not result in an adjustment for the three years as does employment in the U.S. for the qualifying organization; (6) if a beneficiary takes more than a two-year break in employment from the qualifying employer, he or she must initiate another full one year of employment with the qualifying entity and does not get “credit” for any time period previously employed; (7) any e/s of L-1 or c/s to L-1B or L-1A requires that the beneficiary prove he or she initially met the one-year requirement.
|p. 1232-33 (Ch. 5, ¶ VII.S.)||I visa||
Replace paragraph S. with the following:
S. I Visas for Representatives of the Media [INA §101(a)(15)(I), 8 USC §1101(a)(15)(I)]; 2 USCIS-PM, Pt. K; 9 FAM 402.11; 52 FR 42605
1.1. Bona fide representative of foreign press, radio, TV, cable, print, film or other foreign information media, including electronic media platforms
(1) Includes primary employees of foreign information media engaged in filming news events or documentaries, and employees of independent production companies if the employees either: (a) hold a credential issued by a professional journalistic association; or (b) if no credential is available because the sending country has no credentialing authority or the authority does not offer credentialing to the class of media representatives to which the employees belong must satisfy the definition of representative of foreign media. 9 FAM 402.11-3 (a) [bona fide representative], (b) [journalists, researchers, producers, presenters and other on-air personnel, and aliens whose activities provide essential support, e.g. medical film crews, video tape editors].
(2) Television and other production crews may be included if: (i) the employee holds a credential issued by a professional journalist association; (ii) the film or video will be used by foreign based media company to disseminate information or for news; and (iii) the film or video will not be used primarily for advertising, marketing or commercial entertainment. 2 USCIS-PM, Pt. K, Ch. 2; 9 FAM 402.11-3(b),(d), -12 (film/video work).
(3) Freelance media workers as long as they have professional journalistic credentials and a valid contract. 9 FAM 402.11-11.
(4) Bloggers and others involved in social media platforms who are representing organizations engaged in the regular dissemination of journalistic information through online media, but not “personal” blogging. 9 FAM 402.11-10(a)-(b).
(5) Representatives of tourist bureau (controlled, operated or subsidized in whole or part by foreign government) who engage primarily in disseminating factual tourist information about the country. Foreign government trade promotional missions do not qualify. 9 FAM 402.11-13.
(6) Employees of organizations disseminating technical industrial information. 9 FAM 402.11(c).
(7) Foreign media representatives covering various UN-related events and not otherwise eligible for an A or G visa. 9 FAM 402.11-14.
(8) Does not include:
(a) Film production/distribution unless film is informational or educational. Entertainment such as reality tv shows or personal content is not included 9 FAM 402.11-3(d).
(b) Camera crew and other workers producing for commercial entertainment/advertising purposes. Must obtain O-1/O-2 even if no U.S. remuneration and film solely for foreign distribution. 2 USCIS-PM, Pt. K, Ch. 3 ¶A; 9 FAM 402.11-3(d). Because the lines are often blurred between information and entertainment in matters, for example, concerning biographies, USCIS should consider the intended use of the documentary filmmaking or news gathering, and the timeliness of the project relative to the subject event. The officer should also consider the type of organization that employs he applicant and the proposed foreign distribution. 2 USCIS-PM, Pt. K, Ch. 3 ¶¶B–C.
(c) Persons associated with journalistic activities but not directly involved in the gathering, production or dissemination of journalistic information, such as proofreaders. 9 FAM 402.11-3(c).
(9) Foreign Office Abroad is a Requirement—In order to qualify for an I visa there must be a home office abroad. 9 FAM.11-6. If the home office ceases to function or greatly limits its operations after the applicant is in the US, the applicant would not qualify for the I visa. Id. But a foreign press includes a foreign press owned by U.S. shareholders if staffed in large part by non-Americans to collect information for foreign audience. Letter, Odom, Deputy Chief, Visa Services, V-101(a)(15)(i) (Jan. 9, 1986). I visa holder may be employed by a U.S. branch office or U.S. subsidiary of the foreign company provided his or her activities are conducted principally for the benefit of the foreign-based media. Letter, Odom, Chief, Advisory Opinions Division, DOS (Nov. 27, 1995), reprinted in 72 No. 47 Interpreter Releases 1654, 1675 (Dec. 11, 1995).
1.2. Must be entering solely to engage in vocation.
1.3. No foreign residence requirement. 9 FAM 402.11-5. Must be coming temporarily to engage in their vocation. 9 FAM 402.11-3(a)(2), but it may include “long-term assignments, such as serving as the Washington bureau chief for their organization.” 9 FAM 402.11-4.
1.4. “Home office” must be in foreign country. (So, e.g., foreign correspondent for N.Y. Times needs L/H visa.). 9 FAM 402.11-3(a)(2).
2. Overstays—Not subject to INA §222(g) unless there is finding of unauthorized stay by IJ or USCIS because I visa holders are given D/S upon entry. Cable, DOS (99-State-105097) (June 7, 1999), reprinted in 76 No. 24 Interpreter Releases 977–80 (June 28, 1999).
3. Conditions of Entry—Reciprocity between U.S. and home country of the media organization. 22 CFR §41.52(a); former O.I. §214.2(i); AFM 34.4(a). Cannot enter on a B or VWP to perform I functions. Cable, DOS, 03-State-155061 (June 6, 2003), AILA Doc. No. 03070111.
5. Employment of spouse/children—Spouses and children eligible for I-visa, 9 FAM 402.11-8, but they are not authorized to work. 8 CFR §§274a.12(b)(10). But dependents can study in the U.S. without c/s to F-1. 2 USCIS-PM, Pt. K, Ch. 4.
|p. 1312 (Ch. 6, ¶ VII.D.1.b.(3))||I-751 interview waiver||
Add the following to paragraph 1.b.(3) on interview:
Waiving Interviews—USCIS has issued guidance on waiving an interview for an I-751 petition. USCIS Policy Memo, PM-602-0168, Revised Interview Waiver Guidance for Form I-751 (Nov. 30, 2018), AILA Doc. No. 18121001 [interview may be waived if: (i) there is sufficient evidence of the bona fides of the marriage; (ii) the principal petitioner was previously interviewed; (iii) there is no indication of fraud or misrepresentation in the I-751 or supporting documents; and (iv) there are no complex facts or issues requiring an interview]. The waiver-of-interview policy applies to joint petitions and to petitions waiving the joint requirement. AFM 25.1(g).
|p. 1340 (Ch. 6, ¶ VII.D.4.f)||Follow-to-join
Paragraph 4.f should read as follows:
4.f. Same Preference Category—An accompanying or following-to-join beneficiary will be given the same preference category as his or her spouse or parent. INA §§203(d) [8 USC §1153(d)], 9 FAM 503.4-2(C).
|p. 1457 (Ch. 7, ¶ V.I)||Special immigrant juvenile (SIJ)||
Replace paragraph 1.a. with the following:
SIJ status is a status available within the U.S. for youth who require family-law protection. The statute creates an unusual hybrid approach to protecting youth, requiring both state law adjudication and later federal USCIS recognition of the state determination as part of the process to obtain LPR status. The law of the state where the child is a resident is paramount, including procedures for guardianship, custody, third-party custody and adoption. The state juvenile courts must rely on state law and procedure and not look to the provisions of the INA to determine abuse, neglect or abandonment. 6 USCIS-PM, Pt. J, Ch. 1 ¶A at n.1. However, USCIS maintains the position in published adopted opinions that whether a state court order establishes eligibility for SIJ classification is a question of federal law solely within USCIS’s jurisdiction. Matter of D-Y-S-C-, Adopted Decision, 2019-02 (AAO Oct. 11, 2019); Matter of A-O-C, Adopted Decision, 2019-03 (AAO Oct. 11, 2019); Matter of E-A-L-O-, Adopted Decision, 2019-04 (AAO Oct. 11, 2019). In making that determination, USCIS will determine whether the applicant is unmarried, under 21 years of age, has been subject to a state juvenile court order determining that they cannot reunify with one or both of their parents due to abuse, neglect, abandonment, or a similar basis under state law, that they have been declared dependent upon a juvenile court or the court placed them in the custody of a state agency or department or an individual or entity appointed by the court, and that it would not be in the child’s best interest to be returned to their or their parent’s previous country of nationality or last habitual residence. Matter of A-O-C- at 2. In making these determinations USCIS must decide whether: (1) the court had competent jurisdiction to make judicial determinations about dependency and/or custody and care of a juvenile under state law; (2) under state law the child was a juvenile or minor; (3) the record contained evidence of a judicial determination that the juvenile was subject to parental maltreatment under state law; (4) the dependency declaration was made in accordance with state law; (5) the juvenile sought the requisite determination in order to gain relief from parental abuse, neglect, abandonment or a similar basis under state law and not primarily to obtain an immigration benefit; (6) reunification with one or both parents was not viable; (7) there was a reasonable factual basis for each requisite SIJ element by reviewing the juvenile court orders, the underlying petition for dependency or custody, other supporting documents submitted in the juvenile court, transcripts or other records of judicial or administrative proceedings if available, or affidavits or records attesting to the evidence presented to the juvenile court and consistent with its determinations; and (8) the applicant met the burden of establishing these facts by a preponderance of the evidence. See e.g. Matter of E-A-L-O denying SIJ status because the state court decree did not contain a declaration of dependency or custodial placement, it lacked a qualifying parental reunification determination, and the primary motive in seeking the juvenile order was to obtain an immigration benefit.
|p. 1467 (Ch. 7, ¶ VI)||EB-5InvestorsEnterpreneursRegional centers||
Replace section VI with the following:
VI. FIFTH PREFERENCE (EB-5): Employment Creation (Investors)
INA §203(b)(5), 8 USC §1153(b)(5); INA §216A, 8 USC §1186b. PL 101-649, §121, 104 Stat. 4978, 4987 (Nov. 29, 1990); PL 102-395 §610, 106 Stat 1828, 1874 (Oct. 6, 1992); PL 105-119 §116(a)(1), 111 Stat 2440, 2467 (Nov. 26, 1997); PL 106-396 §402(a), 114 Stat. 1637, 1647 (Oct. 30, 2000); 21st Century DOJ Approp. Auth. Act, PL 107-273, Div. C, Title I, Subtitle B, §§11031-37, 116 Stat. 1758, 1846 (Nov. 2, 2002); PL 108-156 §4 (Regional Center), 117 Stat 1944 (Dec. 3, 2003); S. Rep. 102-331 at 118 (July 23, 1992); 8 CFR §204.6; 8 CFR §216.6; 6 USCIS-PM, Pt. G; USCIS Policy Memo, PM-602-0083, EB-5 Adjudications Policy, (May 30, 2013), AILA Doc. No. 13053051; 84 FR 35750-810 (July 24, 2019); USCIS Investor Program Office New Personnel Training (as of Apr. 8, 2014) released by IIUSA (“IPO Manual”), www.iiusa.org —via FOIA, AILA Doc. No. 15111001; DOL EB-5 Training Materials (through Mar. 2012) released by IIUSA, AILA Doc. No. 12040650. (DOL EB-5 Training Manual). The Regional Center program was extended to Sept. 30, 2018 by PL 115-141, Div. M, Title II, Sec. 204, 132 Stat. 348 (Mar. 23, 2018). The NVC has established a special assistance desk for EB-5 investors.
A. Basic Program
1. Allows for conditional residency and eventual lawful permanent residency for persons who, after Nov. 29, 1990, invest $1,000,000 (or under certain circumstances $500,000) in a new commercial enterprise that substantially creates at least 10 full-time jobs for USCs or authorized immigrant workers and who engages in day-to-day management or policy formation of the commercial enterprise. The amounts were increased beginning Nov. 21, 2019 to $1,800,000 and $900,000 respectively, 8 CFR §204.6(f)(1), (2) and they will continue to be increased beginning Oct. 1, 2024 and every 5 years thereafter based upon the CPI-U as measured from the original $1,000,000 amount in 1990. Id.; 84 FR 35750, 35761-70 (July 24, 2019). Quota is 7.1% of worldwide visas per year, of which 3,000 are set aside for “targeted employment areas.” In addition to this “basic program” there is a Regional Center Program discussed in Section I, infra. Additional information on EB-5 is available at www.uscis.gov/eb-5centers. See also www.iiusa.org (Association to Invest in the USA—a trade association for Regional Centers); and www.eb5info.com (news and information about the EB-5 program). Inquiries to USCIS can be e-mailed to email@example.com. The government views the program as containing three main elements: (1) the immigrant’s investment of capital, (2) in a new commercial enterprise, and (3) that creates jobs. USCIS Policy Memo, PM-602-0083, EB-5 Adjudications Policy, (May 30, 2013) at 1, AILA Doc. No. 13053051. An investor must provide evidence of actual business activity, and merely establishing a business, capitalizing it, and signing a lease are insufficient. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.2.
2. Backlog of Quota—For the first time in 2014, visa numbers were backlogged for China in the EB-5 category. Visa numbers for Vietnam backlogged for the first time in 2018, and it is likely that India, South Korea, Brazil, and possibly even Taiwan, might also backlog sometime in 2019 or later. A challenge to the backlog by challenging the counting of derivatives in the investor context has been rejected. Wang v. Pompeo, 354 F.Supp.3d 13 (D.D.C. 2018) [court rejected preliminary injunction challenge to counting children and spouses as part of the 10,000 visas per year allocated to EB-5]. In order to prevent a child from “aging out” the petitioner must follow the requirements of the CSPA. See “Aged Out Children” in Chapter 6, ¶ VII.D.9, supra. One of the requirements is that after the priority date is reached, the child must “seek to acquire lawful permanent residence status within one year.” However, USCIS has determined that only the final action date and not the filing date can be used to determine the priority date for the child’s age. 7 USCIS-PM, Pt. A Ch. 7 ¶ F4. The “sought to acquire” provision is reached by “payment of the visa application fee rather than submission of a DS-260” or submission of a DS-230 to the NVC. DOS, An Update from Apr. 13, 2015 Guidance Regarding the CSPA—Steps Required to “Seek to Acquire” Status in the EB-5 Context, AILA Doc. No. 15083130. 9 FAM 502.1-1(D)(6).
2.1. Children as Investors—To avoid the problem with children “aging-out” some applications are now being filed with the child as the investor. Minor investors I-526 petitions may be valid if the law where the subscription documents are executed provides that a parent or legal guardian/representative may execute the documents for the minor and that the minor may not, in the future, void the agreement. See generally, Practice Pointer, AILA EB-5 Committee, Considerations When an EB-5 Investor Is a Minor, AILA Doc. No. 18072701.
3. Priority Dates—New regulations effective Nov. 21, 2019 provide for the continuing use of a priority date for a filed I-526 investor petition under certain circumstances even if the petition was revoked. See section J.11, infra.
B. Must Invest in a New Commercial Enterprise
1. Scope—Commercial enterprise includes a broad spectrum of business relationships including sole proprietorship, partnerships (limited or general), holding companies and their wholly owned subsidiaries, joint venture, corporation, business trust or other publicly or privately owned entities provided they are all “for profit” business operations. 8 CFR §204.6(e). Nonprofit/charitable organizations and noncommercial activities including owning and operating a person residence do not qualify. 6 USCIS-PM, Pt. G, Ch. 2, ¶C.
2. “New” Commercial Enterprise (NCE) [8 CFR §204.6(h); 6 USCIS-PM, Pt. G, Ch. 2, ¶C]—Includes:
2.1. Companies Formed After Nov. 29, 1990—For the enterprise to be “new” the investment must generally be in a company that was formed after Nov. 29, 1990. 8 CFR §204.6(e). Memo, Yates, Acting Assoc. Director, Operations USCIS, HQ40/6.1.3 (June 10, 2003), AILA Doc. No. 03061744. An investor no longer has to “establish” the commercial enterprise; he must only “invest” in a new commercial enterprise. INA §§203(b)(5)(A)(i), 216A(d)(1)(A). Thus, an investor who did not incorporate the company or establish the company, but invested in a company that began after Nov. 29, 1990 is investing in a new commercial enterprise. In this case the investor does not need to show that the commercial enterprise was “restructured/reorganized” under 8 CFR §204.6(h)(2) or “expanded” under 8 CFR §204.6(h)(3). However, USCIS regards that “[m]erely organizing a company and then purchasing an existing business does not mean that a new commercial enterprise has been established.” USCIS Investor Program Office New Personnel Training (as of Apr. 8, 2014) at 22, released by IIUSA (“IPO Manual”), www.iiusa.org —via FOIA, AILA Doc. No. 15111001. For evidence necessary to prove the establishment of an NCE, see 8 CFR §204.6(j); 6 USCIS-PM, Pt. G, Ch. 2, ¶C.3.
2.2. Companies Formed Before Nov. 29, 1990—A commercial enterprise in existence prior to Nov. 29, 1990 will be considered “new” for purposes of the law if: (a) it has been restructured or reorganized so that a new commercial enterprise results; or (b) it has been expanded so that a “substantial” change in the net worth or number of employees has occurred. 8 CFR §§204.6(h)(2), (h)(3); 6 USCIS-PM, Pt. G, Ch. 2, ¶C.1; USCIS Policy Memo, PM-602-0083, EB-5 Adjudications Policy, (May 30, 2013), supra at 10. Memo, Yates, Acting Assoc. Director, Operations BCIS (predecessor to USCIS), HQ40/6.1.3 (June 10, 2003), AILA Doc. No. 03061744. Purchase of Assets of Business Existing Before Nov. 29, 1990—”[T]he mere fact that an entity formed after 11/29/1990 purchased assets of a previous entity does not in and of itself mean that the entity is not a new commercial enterprise. The nature, timing, and extent of the asset purchase will be evaluated…” Q&A, USCIS, A Discussion About the EB-5 Immigrant Investor Program Teleconference (Feb. 26, 2014) #4, AILA Doc. No. 14021042.
(1) Restructuring; Reorganizing—8 CFR §204.6(h)(2). The mere change in decor and implementation of a new business plan is not sufficient restructuring to result in a new commercial enterprise. Matter of Soffici, 22 I&N Dec. 158, 165–66 (AC 1998) [purchase of a 24-year-old Howard Johnson motel]. If the basis is due to restructuring, the petitioner may not create a net loss of employment. Matter of Hsiung, 22 I&N Dec. 201 (AC 1998). In determining restructuring so that a new commercial enterprise exists, USCIS will look to see if there are real changes in modes of operation, products and services offered, business structure, organization of personnel and other aspects indicating that a new business has resulted. IPO Manual at 23.
(2) Expanded Business—8 CFR §204.6(h)(3). Substantial change means a 40% increase in either the net worth or the number of employees. 8 CFR §204.6(h)(3). The investor must still show the minimum financial investment. However, the 40% increase can be reached by counting all the capital contributed by other investors, even investors who are USCs/ LPRs and/or not desirous of applying for status. Memo, Aleinikoff, General Counsel, INS, HQ 204.27-C (Jan. 31, 1995), reprinted in 73 No. 44 Interpreter Releases 1617, 1625–29 (Nov. 18, 1996). There must be a nexus between the investment and the expansion of the business changing the net worth or number of employees. IPO Manual at 28.
3. Investment and Job Creation in a Commercial Enterprise Not in a Regional Center—It is worth noting that an investment in a commercial enterprise not in a regional center must be directly in the job creating entity and that entity must employ the 10 persons per investor. Thus, a limited partnership that loans money to other businesses where the job-creation is in the other businesses is only possible in the regional center context because it allows for indirect job creation. Of course, if investors put their funds into a lending institution (e.g., bank) and the lending institution itself created 10 jobs per investor (e.g., tellers, loan officers) that would be satisfactory whether or not the company eventually loaned money to others.
C. Investment (Amount) [INA §203(b)(5)(C); 8 CFR §204.6(f)]
1.1. Invests (after Nov. 29, 1990) or is actively in the process of investing capital of $1,000,000 or after Nov. 21, 2019 $1,800,000 or
1.2. Invests (after Nov. 29, 1990) or is actively in the process of investing $500,000 or after Nov. 21, 2019 $900,000 if the investment is in a targeted employment area (TEA) (i.e., a rural area of less than 20,000 population or an area which has experienced high unemployment of at least 150% of the national average). A rural area is defined as “any area other than an area within a standard metropolitan statistical area (as designated by the Office of Management and Budget) or within the outer boundary of any city or town having a population of 20,000 or more based on the most recent decennial census.” INA §203(b)(5)(B)(iii); 8 CFR §204.6(e). TEAs are discussed in this part at Section F, infra.
1.3. Beginning Oct. 1, 2024 and every 5 years thereafter the investment amounts will automatically adjust for petitions filed on or after each adjustment’s effective dated based upon the CPI-U as measured from the original $1,000,000 in 1990. The qualifying investment amount will be rounded down to the nearest hundred thousand. 8 CFR §204.6(f)(1), (3). For TEAs the amount will automatically adjust to be 50% of the amount in the non-TEA area. 8 CFR §204.6(f)(2).
2. Investment of Capital—An investor must invest his own capital. An investment is a contribution of capital. It cannot be a loan to the NCE. Investment can be cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness to the NCE if secured by assets owned by the entrepreneur, 8 CFR §204.6(e); Zhang v. USCIS 344 F.Supp.3d 32 (D.D.C. 2018) [the court certified a nationwide class action and found that USCIS’ policy of treating loan proceeds as “indebtedness” that must be secured with the investors’ personally-owned capital when the loan was not from the NCE was arbitrary and capricious and in violation of the notice and comment provisions of the APA]; Siqing Wang v. USCIS, 366 F.Supp.3d 118 (D.D.C. 2019) [same]. It can include tangible property. 8 CFR §204.6(j)(2)(ii). It can include promissory notes to the NCE as long as the promise is adequately secured by assets the immigrant investor owns, the investor is personally and primarily liable for the debt, the secured assets are not assets of the new commercial enterprise, and additional requirements are met. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.1; USCIS Policy Memo, PM-602-0083, EB-5 Adjudications Policy, (May 30, 2013) at 2, AILA Doc. No. 13053051. See in this part “Promissory Notes,” ¶ E.1, infra.
2.1. Not at Risk is Not Investment of Capital—An investment not at risk is not an investment of capital. See Section E, infra.
2.2. Fair Market Value—All capital is valued in U.S. dollars and at fair market value. 8 CFR §204.6(e). Fair market value of a note is determined by factors such as the fair market value of the assets securing the note, the extent to which the assets are amendable to seizure, and the present value of the note. Matter of Hsiung, 22 I&N Dec. 201 (AC 1998); Matter of Izummi, 22 I&N Dec. 169, 191–94 (AC 1998) [fair market value is determined by whether note is adequately secured and the terms of the note including the payment schedule]; 6 USCIS-PM, Pt. G, Ch. 2, ¶A.1.
2.3. Escrow—Funds may be held in escrow until the investor obtains CR status as long as the funds are immediately and irrevocably subject to release upon approval of CR status. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.2.; 84 FR 35750, 35759 (July 24, 2019) [“Nothing prevents a petitioner from holding his or her contribution of capital in escrow until the petitioner has obtained conditional permanent resident status”]. If funds are held in escrow outside the U.S. there may be issues as to the fluctuation of currency exchange rates. Policy Memo (May 30, 2013), supra at 6.
2.4. Investment Cannot Be a Promise to Pay Beyond the Two Year CR Period—An investment cannot be a promise to pay at some time beyond the expected end of the two-year CR period. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.1; IPO Manual 200-37, at 208 [an investor who send $125,000 now with promise to pay $375,000 before five years is not an investment under the INA as there must be a present legally binding commitment to pay with evidence of ability to pay].
2.5. Investment Must Be Made Available and Made in the Job Creating Entity—The full amount of the investment must be made available in the business most closely responsible for creating the jobs. Matter of Izummi, 22 I&N Dec. 169, 179 (AC 1998); Policy Memo (May 30, 2013), supra at 16; 6 USCIS-PM, Pt. G, Ch. 2, ¶¶A.2, A.3. The payment of “administrative fees, management fees, attorney’s fees, finders’ fees, syndication fees, and other types of expenses and costs by the new commercial enterprise that erode the amount of capital made available to the job-creating entity do not count toward the minimum required investment amount.” 6 USCIS-PM, Pt. G, Ch. 2, ¶¶A.2.
2.6. Bridge Financing—”[T]he new commercial enterprise, either directly or through a separate job-creating entity, may utilize interim, temporary or bridge financing–in the form of either debt or equity–prior to receipt of EB-5 capital. If the project commences based on the interim or bridge financing prior to the receipt of the EB-5 capital and subsequently replaces it with EB-5 capital, the new commercial enterprise may still receive credit for the job creation under the regulations.” Whether or not the EB-5 financing was contemplated as replacing temporary financing from the beginning, it can still be used to credit job creation, “as long as the financing to be replaced was contemplated as short-term temporary financing which would be subsequently replaced…Developers should not be precluded from using EB-5 capital as an alternative source to replace temporary financing simply because it was not contemplated prior to obtaining the bridge or temporary financing.” Policy Memo, USCIS (May 30, 2013), at 15-16. See also Q&A, USCIS, A Discussion About the EB-5 Immigrant Investor Program Teleconference (Feb. 26, 2014) #11, AILA Doc. No. 14021042 [is financing being used temporarily to be replaced by EB-5 funds or used to merely refinance longer-term debt]; 6 USCIS-PM, Pt. G, Ch. 2, ¶D.1 [replacement of bridge financing with immigrant investor capital should have been contemplated prior to acquiring original temporary financing; however, even if investor financing was not contemplated prior to acquiring temporary financing it is permissible as long as the financing to be replaced was contemplated as short-term temporary financing. “ For example, if traditional financing originally contemplated to replace the temporary financing is no longer available to the commercial enterprise, a developer is not precluded from using immigrant investor capital as an alternative source”].
2.7. Loan Proceeds—USCIS interprets 8 CFR §§204.6(e), 204.6(j)(2) to require that the investors: (1) demonstrate that they are personally and primarily liable under the loan documents for repaying the debt that is being used to satisfy the investment; (2) secure the indebtedness “by assets the immigrant investor owns;” (3) the investor’s own assets/collateral are sufficient to secure the amount of indebtedness; and (4) the assets of the NCE are not used to secure the indebtedness. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.1; EB-5 Telephonic Stakeholder Engagement, Harrison, IPO Deputy Chief, USCIS, Loan Proceeds as Qualifying Capital (Apr. 22, 2015), AILA Doc. No. 15031770; Remarks, Harrison, Deputy Chief IPO (Apr. 22, 2015), AILA Doc. No. 15031770; Matter of ___ (IPO May 29, 2014), AILA Doc. No. 15040962. USCIS has therefore denied I-526 petitions because a loan was secured, in part, by property owned by family members or friends because “indebtedness secured by assets owned by the petitioner qualifies as ‘capital’ only up to the value of such collateralized assets.” Id. The USCIS has imposed these requirements not only when the loan is taken from the NCE, but has mistakenly extended it to a third party loan where the immigrant investor obtains cash from the loan (e.g., through a bank) and deposits the cash directly into the NCE. See Zhang v. USCIS, 344 F.Supp.3d 32 (D.D.C. 2018) [class action finding that USCIS’ interpretation that collateral supporting a loan may only be the investor’s property is arbitrary and capricious and violated the notice and comment provision of the APA]. USCIS has therefore denied I-526 petitions because a loan was secured, in part, by property owned by family members or friends because “indebtedness secured by assets owned by the petitioner qualifies as ‘capital’ only up to the value of such collateralized assets.” Harrison, supra.
3. Combining Investments in Multiple Commercial Enterprises Allowed Only If Wholly Owned Subsidiary of New Commercial Enterprise—An immigrant investor may diversify his or her investment across a portfolio of businesses or projects, but only if the minimum investment amount is first placed in a single new commercial enterprise. 6 USCIS-PM, Pt. G, Ch. 2, ¶¶A.3, D.2. The investment must be in only one commercial enterprise and an investor cannot meet the requirements for the removal of conditions by combining investments in multiple commercial enterprises. Memo, Yates, Acting Assoc. Director, Operations BCIS, HQ40/6.1.3 (June 10, 2003), AILA Doc. No. 03061744. An investor therefore may invest in one commercial enterprise that diversifies and puts $600,000 toward one business it wholly owns and $400,000 toward another it wholly owns. However, an investor who puts the same amount of funds in two separate businesses does not qualify. Policy Memo (May 30, 2013), supra at 6-7.
4. Evidence of Business Activity—The investor must provide evidence of actual business activity. Merely establishing a business, capitalizing it, and signing a commercial lease are insufficient. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.2. And the funds must be in the business account and not in the investor’s personal account. Id. Sole owner or person who exercises sole control over business cannot meet the at-risk requirement by simply putting the funds into the company account, because the funds can be withdrawn at will. Matter of Ho, 22 I&N Dec. 206 (AC 1998) [must present some evidence of concrete business activity, not simply generalized plans].
D. Source of Funds—The investor must establish he is the legal owner of the capital. Matter of Ho, 22 I&N Dec. 206 (AC 1998) and any assets acquired directly or indirectly by unlawful means, such as criminal activity, will not be considered capital. Policy Memo (May 30, 2013) supra at 4; 8 CFR §§204.6(e), (j)(3)(i)-(iv); 6 USCIS-PM, Pt. G, Ch. 2, ¶A.4; Matter of Soffici, 22 I&N Dec. at 164–65; Matter of Izummi, 22 I&N Dec. at 194–95. Restrictions on the use of loan proceeds for purpose other than EB-5 is relevant to source of funds inquiry because the capital may have been obtained by fraud on the loan application. EB-5 Telephonic Stakeholder Engagement, Harrison, IPO Deputy Director, USCIS, Loan Proceeds as Qualifying Capital (Apr. 22, 2015) at 2, AILA Doc. No. 15031770. Tracing the lawful source of funds is case specific and there is no set limit on the timeframe for the inquiry. USCIS, EB-5 Quarterly Stakeholder Meeting (June 30, 2011), AILA Doc. No. 11050462. Investment can come from funds in joint account owned by petitioner and spouse. Memo, Weinig, Acting Asst. Comm. Adjudications (Aug. 5, 1992), reprinted in 11 AILA Monthly Mailing 776 (Oct. 1992). This does not extend to joint accounts by other family members. Matter of Soffici, 22 I&N Dec. 158, 164 (AC 1998) [joint account of father and son cannot be attributed solely to investor]. Petitioner must establish that the investment comes from accounts under his name. Matter of Ho, 22 I&N Dec. 206 (AC 1998) [unidentified account]; IPO at 239-64 [discussing three stages of money laundering: placement, layering, and integration]. A gift may be a valid source of funds and it need not be from a familial relationship. A gift must be freely given without expectation by the donor of receiving repayment or anything else of value from the recipient in exchange for the gift. Harrison, IPO Deputy Chief, USCIS, Stakeholder Engagement (Feb. 3, 2016), reprinted in 93 No. 8 Interpreter Releases, Art. 9 at 13, 34-35 (Feb. 22, 2016). Judicial review is subject to the arbitrary and capricious standard. Sadeghzadeh v. USCIS, 322 F.Supp.3d 12 (D.D.C. 2018) [court upheld denial on grounds that the investor did not sufficiently document the path of funds through a third party and permitted the AAO for the first time at the appeal (without giving the applicant an opportunity to respond because the AAO exercises “de novo” review) to the claim that there were inconsistencies in the value of the sale of coins].
E. Investment (At Risk) [8 CFR §204.6(j)(2)]
1. Promissory Notes [8 CFR §204.6(j)(2)(v)]—If a promissory note is used: (1) the investor must be personally and primarily liable for the promissory note debt; (2) his or her assets must adequately secure the note; (3) the security interest must be perfected in the jurisdiction in which the asset is located which relates to “the additional steps required to make a security interest effective against third parties or to retain its effectiveness in the event of default;” (4) the assets securing the promissory note cannot include assets of the company in which the immigrant is investing, must be specifically identified as securing the note, and must be fully amenable to seizure by a U.S. noteholder; and (5) “nearly all the money due …must be payable within 2 years without provisions for extension.” 6 USCIS-PM, Pt. G, Ch. 2, ¶A.1. Policy Memo (May 30, 2013), supra at 3-4; Matter of Hsiung, 22 I&N Dec. 201, 204 (AC 1998).
1.1. An unsecured promissory note is not an investment of capital. A petitioner must demonstrate that the note is secured by his or her property. Matter of Hsiung, 22 I&N Dec. 201 (AC 1998) [where petitioner failed to demonstrate that property securing note was his, the petition was denied]. The fair market value (FMV) of the promissory note and not the face value governs the amount of the investment. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.1. FMV is determined from the time of filing through the period of conditional residency. FMV is determined by factors such as the FMV of the assets securing the note, the extent to which the assets are amenable to seizure, the present value of the note, the terms of the note, the discounted amount of the cost for seizing the security interest if necessary, and the discounted value of the note. Matter of Hsiung, 22 I&N Dec. 201 (AC 1998); Matter of Izummi, 22 I&N Dec. 169, 191–94 (AC 1998). [FMV is determined by whether note is adequately secured and the terms of the note including payment schedule].
1.2. Petitioner must “substantially complete” his payments on a signed valid promissory note prior to the end of the 2-year conditional residency period. Matter of Izummi, 22 I&N Dec. at 193–94 [5 annual payments of $18,000 with balloon of $290,000 plus a completed payment of $120,000 are insufficient when reduced to present value and are outside the 2-year period]; 8 CFR §216.6(c)(1)(ii)–(iii) [requiring investor to have “substantially met” the capital investment requirement].
1.3. Promissory Notes Secured by Foreign Property—PRC national cannot use PRC property to secure a note because a U.S. judgment against the property is not enforceable in PRC. Memo, Adjudications, INS, HQ 70/8.5-P (Oct. 20, 1997), AILA Doc. No. 97102091. See also 75 No. 1 Interpreter Releases 14-16, 27–33 (Jan. 5, 1998). The extent to which the assets securing the note are amendable to seizure is also a consideration of the note’s FMV. Hsiung, supra.
2. Trusts—Must ensure that funds are fully available from any trust agreement.
3. Guaranteed Interest Payments and Guaranteed Returns—Where promissory notes guarantee interest payments, these arrangements may be considered nonqualifying “loans” or other debt arrangements, and not a contribution of qualifying “capital.” Similarly, guaranteed annual returns that are used to meet part of the investor’s required payment are impermissible. Matter of Izummi, 22 I&N Dec. at 180–82. Also a guaranteed return of a portion of the investment is not considered an investment for that portion. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.2; Policy Memo (May 30, 2013) supra at 5. Additionally, an investment that guarantees the right to eventual ownership or use of a particular asset (e.g., a condominium or a home) in consideration for the contribution of capital is only permissible if the expected present value of the asset (e.g., condo or home) is deducted from the amount of the investment. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.2. Also “For the capital to be at risk there must be a risk of loss and a chance for gain.” Id.
4. Redemption Agreements—A redemption agreement or promise to return any capital negates the element of risk and is therefore not an investment, including the guarantee of ownership of property (e.g., condominium) in consideration of the investment. An investor is not precluded from receiving a distribution of profits during or after conditional residency or even before jobs are created, so long as the return is not a portion of the investor’s principal and was not guaranteed or required to be paid upon the investor’s demand. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.2. But “an agreement evidencing a preconceived intent to exit the investment as soon as possible after removing conditions on permanent residence may constitute an impermissible debt arrangement.” Id. Mandatory redemptions and options exercisable by the investor are two examples of agreements that would be considered redemption agreements. Id. An investor therefore may not enter into an agreement that allows him to sell at his request his investment at a set price after the two-year period Matter of Izummi, 22 I&N Dec. at 185–87. USCIS takes the position that such an arrangement cannot be remedied by conditioning the investor’s purchase on the availability of funds or the right to sell his investment after the two year period. Mirror Lake Village, et al., v. Nielson, 345 F.Supp.3d 56 (D.D.C. 2018) [upholding a broad reading of Matter of Izummi in denying put options because investors are prohibited from making an arrangement to sell when they invest]. However, an agreement which gives the general partner/NCE the right to repay the investor after the CR period but not the obligation to do so, is not a debt arrangement or redemption agreement. Chang v. USCIS, 289 F.Supp.3d 177 (D.D.C. 2018) [distinguishing permissible call/buy options from impermissible put/sell options; finding that the catchall phrase in 8 CFR §204.6(e) prohibiting “any” other debt arrangement cannot be read to include a “buy” or “call” option by a general partner; and rejecting the USCIS overbroad reading of Matter of Izummi to include such call options]; Doe v. USCIS, 239 F.Supp.3d 297, 306-09 (D.D.C. 2017) [a “call option,” which “allowed the general partner of [the NCE] to effectively cap the return of the Plaintiff-investors at a certain level by giving the general partner the right, but not the obligation, to ‘repurchase the interest of a Limited Partner for a purchase price of either (i) $550,000 in cash, or (ii) 400 ounces of gold (99% purity)” was not a redemption agreement].
5. Secured Loans—A loan to the commercial enterprise or any other debt arrangement between the entrepreneur and the new commercial enterprise does not constitute an investment. Matter of Soffici, 22 I&N Dec. 158, 162–63 (AC 1998); 6 USCIS-PM, Pt. G, Ch. 2, ¶A.2 [a loan to the NCE or a contribution of capital in exchange for a debt arrangement is not a capital investment]. Retained earnings are also not considered an investment. Kenkhuis v. INS, No. Civ.A. 301CV2224N, 2003 WL 22124059 (W.D. Tex. Mar. 7, 2003); Policy Memo (May 30, 2013) supra at 4-5 [a contribution of capital in exchange for a debt arrangement such as a note or bond with the new commercial enterprise does not constitute a contribution of capital]. A loan taken from a bank with the investment as security (e.g., mortgage and security agreement) is not an investment. Matter of Soffici, 22 I&N Dec. 158, 162–63 (AC 1998) [bank loan secured by hotel property is not an investment even where the investor is also personally liable on the loan because the bank is not obligated to proceed against the investor].
5.1. Loan Proceeds as Qualifying Capital—USCIS will also only accept the proceeds of a loan as investment capital if the petitioner is personally and primarily liable for the indebtedness, and the indebtedness is secured by assets the petitioner owns and that the value of such collateral is sufficient to secure the amount of indebtedness. See in this part ¶ C.2.7, supra.
6. Purchasing a Share of an Existing Business—Purchasing a share of a business from an existing shareholder, without more, will not qualify as an investment since the payment goes to the former shareholder rather than to the NCE. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.2.
7. Payment of Partnership Expenses—Payment of partnership expenses does not constitute an investment because it is not “for the purpose of generating a return on the capital placed at risk.” Matter of Izummi, 22 I&N Dec. 169, 176–80 (AC 1998). [distinguishing between direct investment and expenses in employment generating enterprise and indirect investment through company whose sole purpose is to attract investors].
8. Reserves—Funds that are set aside as reserves and are not available to the job-creating enterprise cannot be considered part of the capital contribution. Matter of Izummi, 22 I&N Dec. at 188–91.
9. At Risk Requirement After Job Creation is Satisfied—Once job creation has been met, the capital is properly placed at risk “if it is used in a manner related to engagement in commerce … consistent with the scope of the new commercial enterprise’s ongoing business.” 6 USCIS-PM, Pt. G, Ch. 2, ¶A.2. Redeployment of returned capital must take place within a commercially reasonable period of time and within the scope of the NCE’s ongoing business. Id. USCIS uses as an example an NCE that loans funds for construction upon return of the funds “may” redeploy it by providing similar loans or investment in infrastructure bonds. Id.
10. Deployment of Funds—The investment of funds in a project may raise “at risk” issues where even a single expenditure supporting the investment raises significant questions whether the transaction was legitimate. Doe v. McAleenan, 929 F.3d 478 (7th Cir. 2019) [upheld denial in EB-5 I-829 context under the “at risk” criteria where investor could not rebut significant concerns that the purchase of land for an assisted living facility was “flipped” and purchased for a significant amount above its selling price to a third party hours earlier].
11. Redeployment of Funds—An investment needs to be sustained “throughout the period of [the investor’s] status as a conditional permanent resident.” Funds do not have to be redeployed after that period. 6 USCIS-PM, Pt. G, Ch. 5, ¶A.2. Although this might normally be two years, post CR status, the per-country limitations and visa backlogs (e.g., China and Vietnam) now require far longer periods of sustainment of capital. In sustaining the capital requirement, the funds must remain “at risk for the purpose of generating a return on the capital placed at risk.” 8 CFR §204.6(j)(2). The funds must be consistent with the scope of the NCE’s ongoing business. 6 USCIS-PM, Pt. G, Ch. 2 [recognizing that redeploying capital into new issue municipal bonds such as infrastructure spending is permissible if within the scope of the NCE]. And the basis for the redeployment “must be adequately described in the Form I-526 record.” Id. This requires that if redeployment occurs while the I-526 is pending (or after I-526 approval but before CR status), the investor must supplement the record and demonstrate how the redeployment is consistent with the scope of the NCE. The redeployment of the returned capital must also be within a “commercially reasonable period of time.” 6 USCIS-PM, Pt. G, Ch. 4. Once the person is a CR, an investment may be redeployed in a manner not necessarily contemplated in the initial I-526 as long as the redeployment places the capital at risk. 6 USCIS-PM, Pt. G, Ch. 5. For one such example, see SEC v. Quiros, No. 16-cv-21301-DPG, Dkt. Entry 448 (S.D. Fla. Feb. 6, 2018) [allowing redeployment of funds from AnC Bio Vermont in the Jay Peak receivership].
11.1. USCIS has provided guidance in the policy manual, 6 USCIS-PM, Pt. G, Ch. 2 ¶A.2 on how an NCE can “redeploy” capital in a manner that will preserve an investor’s EB-5 eligibility. The guidance provides that an NCE can redeploy funds in another investment to maintain the funds “at risk” so long as the following requirements are satisfied:
12. Challenges to Plans—INS General Counsel has challenged most of the investor plans that minimize investor risk, finding that they can be revoked if previously granted. This includes investment plans that involve guaranteed interest payments, buy and sell options at a fixed price other than FMV, and limitations on the amount of capital actually available for the job creating enterprise. Memo, Martin, G.C., HQ COU 70/6.1.8 and 70/9.-P (Dec. 19, 1997), reprinted in 75 No. 9 Interpreter Releases 332–49 (Mar. 9, 1998).
F. Targeted Employment Area (TEA) [INA §203(b)(5)(A); 8 CFR §204.6(e); AFM at 22.4(c)(4)(F)]
1. In General—A Targeted Employment Area (TEA) is either a rural area or an area of high unemployment at the time of the capital investment or at the time of filing the I-526, whichever occurs first. The investor may directly provide evidence of TEA eligibility or seek assistance from the state government prior to Nov. 21, 2019. The investor may submit: (1) evidence that the area is outside of a metropolitan statistical area and outside of a city or town with a population of 20,000 or more for “rural” TEA; or (2) unemployment data for the relevant area; or (3) a letter from the state government designating area a high unemployment TEA. Policy Memo (May 30, 2013), supra at 8. Only an “agency, board, or other appropriate governmental body of the state,” and not a local or municipal government, may designate a TEA. 8 CFR §204.6(i).
Under regulations effective Nov. 21, 2019 USCIS and not a state government entity will determine whether an area is a TEA. 84 FR 35750, 35772-75 (July 24, 2019). And USCIS, in determining whether an area is designated as an area of high unemployment, will only accept “a census tract or contiguous census tracts in which the new commercial enterprise is principally doing business, and may also include any or all census tracts directly adjacent to such census tract(s).” 8 CFR §204.6(i). In so doing the weighed average of the unemployment rate for the subdivision, based on the labor force employment measure for each census tract, must be at least 150 percent of the national average unemployment rate.” Id. If the project is in a TEA then the investment amount may be a minimum of $500,000 but after Nov. 21, 2019, $900,000. If a regional center wishes to have the minimum investment of $900,000, the affiliated Job Creating Entity (“JCE”) must be located in a TEA. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.5; Compare Matter of Soffici, 22 I&N Dec. 158 (AC 1998) [time of filing I-526] and the statute/regulations [time of investment]; Memo, Neufeld, Acting Assoc. Director, Domestic Operations, USCIS, HQ 70/6.2, AD 09-38 (Dec. 11, 2009), at 2, AILA Doc. No. 09121561. The Policy Manual at 6 USCIS-PM, Pt. G, Ch. 2, ¶A.5 resolves the conflict between Matter of Soffici and the statute/regulation by stating if the funds were invested prior to the I-526 filing date then the TEA analysis should be counted at the time of investment but if the funds were held in escrow count the date the I-526 was filed. 84 FR 35750, 35781 (July 24, 2019). Each investor must establish the TEA and if one investor was approved but the TEA ceased being a TEA before the second investor made his investment, the second investor would be ineligible. USCIS however will not deny an I-829 if the TEA has ceased after the approval of CR status. 6 USCIS-PM, Pt. G, Ch. 2, ¶A.5.
1.1. Methodology for TEAs—At the earliest stages of the EB-5 program the Department of Labor, in a series of memos, established the methodology to be used to calculate whether an area could be classified as a TEA due to high unemployment. See Memo, Labor Area Unemployment Statistics (LAUS) Technical No. S-92-11, King, Assoc. Comm., Office of Field Operations, Bureau of Labor Statistics, DOL, INS Rule for Employment Creation Visas (May 4, 1992), 19 Bender’s Immigr. Bull. 681-84 (July 1, 2014); Memo, LAUS Technical No. S-92-14, King, Clarification of LAUS Technical Memorandum No. S-92-11 (July 7, 1992), Id. at 685-87; Memo, LAUS Technical No. S-95-17, King, INS Rule for Employment Creation (Aug. 17, 1995), Id. at 688-89; Memo, LAUS Technical No. S-10-20, Mousa, Assoc. Comm., Office of Field Operations, BLS, DOL, USCIS Employment Creation (EB-5) Visa Program (July 21, 2010), Id. at 690-93; IPO Manual at 62-84.
However, USCIS recognizes that BLS information is only published for towns of 25,000 or more and suggests that employers may wish to rely on unemployment data from the U.S. Census Bureau’s American Community Survey. 84 FR 35750, 35770-71, 35775-78, 35778-80 (July 24, 2019) [“the burden is on the petitioner to provide DHS with evidence documenting that the area..is high unemployment area, and such evidence should be reliable and verifiable. DHS believes that the unemployment data provided to the public by the U.S. Census Bureau’s American Community Survey as well as data available from the Bureau of Labor Statistics qualify as reliable and verifiable data for petitioners to reference in order to carry their evidentiary burden…”]
2. Rural Area Defined—An area that is outside a metropolitan statistical area (MSA) and outside of a city or town having a population of 20,000 or more based on the most recent national census. INA §203(b)(5)(B)(iii); 8 CFR §204.6(j)(6)(i).
3. High Unemployment Area Defined—An area which has experienced unemployment of at least 150% of the national average. INA §203(b)(5)(B)(ii).
3.1. Prior to Nov. 21, 2019: Look to most recent information from federal or state government including the Bureau of Labor Statistics (Local Area Unemployment Statistics) or a state designation. However, if it is a state designation, the state must notify USCIS of the agency, board, or other appropriate governmental body of the state which shall be delegated the authority to certify the area. “Evidence of such a designation, including a description of the boundaries of the geographic or political subdivision and the method or methods by which the unemployment statistics were obtained, may be submitted in support of the Form I-526 in lieu of other documentary evidence.” AFM at 22.4(c)(4)(F)(iii). See also 8 CFR §204.6(i); 56 FR at 60897. USCIS reserves the right to “ensure compliance with the statutory requirement” and for this purpose “will review state determinations of the unemployment rate and … assess the method or methods by which the state authority obtained the unemployment statistics.” Policy Memo (May 30, 2013), supra at 8. USCIS will not accept a TEA constructed from an aggregation of census tracts unless it is based upon a state designation letter. Q&A, USCIS, A Discussion About the EB-5 Immigrant Investor Program Teleconference (Feb. 26, 2014) #5, AILA Doc. No. 14021042.
3.2. Post-Nov. 21, 2019—Evidence: (i) that the MSA, the specific county within the MSA, the county in which a city or town with a population of 20,000 or more is located, or the city or town with population of 20,000 or more outside an MSA, in which the NCE is principally doing business has experienced an average unemployment rate of at least 150% of the national average; or (ii) a description of the boundaries and the unemployment statistics for the area and the reliable method by which the unemployment statistics were obtained. 8 CFR §204.6(j)(6)(i)-(ii); 84 FR 35750, 35770-71 (July 24, 2019).
4. Multiple TEAs in One Investment—The NCE can create jobs in a collection of separate TEAs so long as the JCEs are principally doing business in the designated TEAs and are located within the regional center. Q&A, USCIS, A discussion About the EB-5 Immigrant Investor Program Teleconference (Feb. 26, 2014) #12, AILA Doc. No. 14021042.
G. Multiple Investors; Partnerships [8 CFR §204.6(g)]
1. Multiple Investors—8 CFR §204.6(g). Can have multiple investors (pooling funds) including nonpetitioners (e.g., USCs). Each investor who wishes to qualify must independently meet the capital and employment requirements.
2. Partnerships—A limited partnership is considered a commercial enterprise. INA §§203(b)(5)(A)(i), 216A(f), 8 USC §§1153(b)(5)(A)(i), 1186b(f). An investor may join the partnership after its formation because an investor is no longer required to “establish” a commercial enterprise but rather to “invest” in one. INA §203(b)(5)(A)(i). If there is a limited partnership agreement it must provide the investor with rights, powers and duties under the Uniform Limited Partnership Act. If the limited partnership is an investment fund investing in unrelated companies, then the investor’s management is related to the fund, not the companies. Letter, Weinig, Acting Asst. Comm. CO 204.27-C (Aug. 5, 1992), reprinted in 69 No. 43 Interpreter Releases 1440, 1452–53 (Nov. 9, 1992). Of course, investment funds where the investors’ money is going to another enterprise for job creation may only be used in the regional center context because funds in any other context must go into the job-creating entity.
H. Employment Creation [8 CFR §§204.6(e) and (j)(4); 8 CFR §216.6(a)(4)(iv)]—Must create full-time employment for at least 10 positions for qualifying U.S. workers (other than the applicant or his or her immediate family) per each qualified investor. The 10 jobs should be created within the 2-year CR period or “within a reasonable time” thereafter. 8 CFR §216.6(a)(4)(iv); IPO Manual at 136-71.
1. Comprehensive Business Plan—The I-526 petitioner must submit “a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when each employee will be hired.” 8 CFR §204.6(j)(4)(i)(B). The comprehensive business plan showing job creation must be filed with all I-526 petitions including those filed under the Regional Center Program that will rely on indirect job creation. AFM 22.4(c)(4)(D)(ii). A business plan should contain, at a minimum: (1) a description of the business, its products and/or services, and its objectives; (2) a market analysis, including the names of competing businesses and their relative strengths and weaknesses, a comparison of the competition’s products and pricing structures, and a new description of the target market/prospective customers of the new commercial enterprise; (3) a list of the required permits and licenses obtained; (4) a description of the manufacturing or production process, including the material required and the supply sources if appropriate; (5) a marketing strategy, including pricing, advertising and servicing; (6) the organizational structure and its personnel’s experience; (7) the staffing requirements and a timetable for hiring, including job descriptions for all positions; and (8) sales, cost, and income projections, detailing the bases for them. Matter of Ho, 22 I&N Dec. 206, 212–13 (AC 1998) [rejecting 4-page business plan]; 6 USCIS-PM, Pt. G, Ch. 2, ¶B. The business plan should also demonstrate how the anticipated costs of operation will utilize the reserve funds. Al-Humaid v. Roard, No. 3:09-CV-982-L, 2010 WL 308750 (N.D. Tex. Jan. 26, 2010). See also IPO Manual at 44-60. The business plan may be challenged if it contains: (i) incomplete or visibly altered documents; (ii) inconsistent documentation; or (iii) unreasonable or implausible projections. IPO Manual at 51.
1.1. For commercial property development a comprehensive business plan should include current market rates on leases, past historical trends in rental income, vacancy rates and a competitor analysis including review of commercial property in the nearby areas and an analysis of their tenant mix, rental rates, and vacancy rates.
2. Job Creation Period Measured
2.1. I-526 Stage—For I-526 approvals the petitioner must demonstrate, through the comprehensive business plan, that the jobs will be created within two years, but the 2-year period described in 8 CFR §204.6(j)(4)(i)(B) “is deemed to commence six months after the adjudication of the Form I-526.” 6 USCIS-PM, Pt. G, Ch. 2 ¶D, 5. The investor at the I-526 stage must show that it is more likely than not that the jobs will be created. 6 USCIS-PM, Pt. G, Ch. 4.
2.2. I-829 Stage—The regulation provides that evidence at the I-829 stage must be presented to demonstrate that the investor “created or can be expected to create within a reasonable time ten full-time jobs for qualifying employees.” 8 CFR §216.6(a)(4)(iv). USCIS recognizes that the “within a reasonable time” requirement “permits a degree of flexibility to account for the realities and unpredictability of starting a business venture, but it is not an open-ended allowance.” It further recognizes that “reasonable” is to “be decided based on the totality of the circumstances presented…” USCIS now views the “within a reasonable time” to be three years from the approval of conditional residence status. 6 USCIS-PM, Pt. G, Ch. 5 ¶B, 2 [“within a year of the two-year anniversary of the alien’s admission” as a CR or AOS as a CR]. However, jobs created beyond that time horizon may still be considered reasonable if there are “extreme circumstances, such as force majeure…” Id. If after considering the evidence the officer determines that the jobs are more likely than not going to be created within a reasonable time, the I-829 should be approved. AFM at 25.2(e)(5)(D). There is a good deal of controversy whether the 2/3 year job creation requirement should be measured the same way in the regional center context where “reasonable methodologies” are employed for direct and indirect job creation, 8 CFR §§204.6(j)(4)(iii), (m)(7)(ii) and the methodologies do not specify a date for job creation.
3. Employee Defined—Employees are persons who receive wages “directly from the new commercial enterprise.” However, USCIS regulations, inconsistent with the statute, hold that independent contractors are not employees. 8 CFR §204.6(e). Employees under the regulation must also be “qualifying employees.”
4. Full-Time/Permanent Employment—Employment is defined in terms of the position, not the person, requiring full-time (35 hours/week) employment. INA §203(b)(5)(D), 8 USC §1153(b)(5)(D); 6 USCIS-PM, Pt. G, Ch. 2, ¶D.3. Thus, investors in industries such as the construction industry can qualify even where individual workers are changed if the position continues. Direct construction jobs qualify, but only if the position is expected to last at least two years. AFM 22.4(c)(4)(D)(iii) [distinguishing laborers who may last two years on a construction job from electricians whose work would be intermittent and less than two years duration]. In determining full-time positions, USCIS will consider the following:
4.1. Intermittent, temporary, seasonal or transient jobs—Not regarded as full time. Construction job, supra, may be full-time as may tourist jobs if the “position” is expected to last at least 2 years.
4.2. Job Sharing—Where two or more qualifying employees share a full-time position it counts as one full-time job if they combine to work at least 35 hours per week. But two part-time jobs do not count. To demonstrate a full-time position is shared by more than one employee evidence may be: (i) a written job-sharing agreement; (ii) a weekly schedule that identifies the positions and the hours to be worked by each employee; or (iii) evidence of the sharing of the responsibilities or benefits of a permanent full time position. 6 USCIS-PM, Pt. G, Ch. 2, ¶D.3.
4.3. Qualifying Employee—USCIS maintains that to meet the 10-jobs requirement, the employees must be lawful U.S. workers, authorized to work, and maintain proof (through I 9s and otherwise) of lawful status. U.S. worker includes USC, LPR, CR, temporary resident, asylee, refugee, and a grantee of suspension of deportation or cancellation of removal. It does not include NIV holders, the investor, or the investor’s spouse or children. 8 CFR §204.6(e); Policy Memo (May 30, 2013), supra at 16-17.
4.4. Indirect Job Creation Can Only be Counted in Regional Centers—The economic input/output models, such as RIMS II or IMPLAN do not distinguish between full-time and part-time jobs and USCIS will assume that the indirect jobs quantified through the models are full-time jobs. Thus, determinations regarding whether jobs qualify as full-time are only relevant to the analysis of direct jobs. Petitioners need only employ reasonable economic methodologies to establish by a preponderance of the evidence the creation of indirect jobs. Policy Memo (May 30, 2013), supra at 17, 19.
5. Troubled Business Employment—Merely sustaining (rather than creating) jobs does not meet the jobs requirement unless investment is in a “troubled business” (net loss for 1 or 2 years exceeding 20% of net worth). 6 USCIS-PM, Pt. G, Ch. 2, ¶D.4; Legal Opinion, Virtue, Acting General Counsel, Genco Opinion 93-67, CO 204.6 (Sept. 10, 1993), reprinted in 72 No. 34 Interpreter Releases 1191, 1220–31 (Sept. 1, 1995). 8 CFR §§204.6(e), 204.6(j)(4)(ii). The loss period can be either the one or two year period but must be immediately preceding the filing date of the I-526. Executive Summary, USCIS, EB-5 Quarterly Stakeholders Engagement (May 1, 2012) at 7, AILA Doc. No. 12041241. But USCIS maintains that each investor must preserve 10 jobs even though the regulation addresses preserving only “existing” jobs. 6 USCIS-PM, Pt. G, Ch. 2, ¶D.4; Compare 8 CFR §204.6(j)(4)(ii) and 8 CFR §216.6(a)(4)(iv) with Policy Memo (May 30, 2013), supra at 17-18; IPO Manual at 171. See also 56 FR 60897.
6. Indirect Job Creation in Regional Centers—Investment within the regional center enables petitioner to count indirect job creation. 8 CFR §204.6(j)(4)(iii); 6 USCIS-PM, Pt. G, Ch. 2, ¶D.4. See in this part “Regional Center Program,” Section I, infra.
6.1. Direct Jobs Defined—Under USCIS regulations, jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs are called “direct jobs.” If a person is not employed by the new commercial enterprise, the person will not be considered in a “direct job.” USCIS, Talking Points from EB-5 Interactive Series: Expenses that are Includable (or Excludable) for Job Creation (June 4, 2015) at 2 AILA Doc. No. 15052164 [full-time staff at a hotel created by the NCE but employed by a separate staffing company are not considered in direct jobs]. It should be noted, however, that in the IMPLAN model “direct employment impact” and “direct jobs” are two different concepts. The former involves hypothetical jobs that should be created directly by the investment under the model; it does not mean “direct jobs” as defined in the regulations. In contrast, the RIMS II model uses “direct jobs” and then applies a multiplier to determine the indirect jobs. [In practice, most EB-5 economic job creation studies do not rely on the direct job inputs, but rely instead on expenditures and revenues to estimate job creation, as permitted under the regional center program]. USCIS has recognized that “direct jobs” in a model-driven method are “not direct jobs in the sense of the EB-5 regulations … [and] are not specifically identifiable, and are based solely on an output of the model” as in a model based upon revenue. Q&A, USCIS, A Discussion About the EB-5 Immigrant Investor Program Teleconference (Feb. 26, 2014) #6, AILA Doc. No. 14021042. USCIS however takes the position that “if the inputs into the input-output model reflect jobs created directly at the new commercial enterprise or job-creating entity, USCIS requires the investor to demonstrate that the direct jobs input is reasonable. Relevant documentation may include Form I-9, tax or payroll records or if the jobs are not yet in existence, a comprehensive business plan demonstrating how many jobs will be created and when…” 6 USCIS-PM, Pt. G, Ch. 2, ¶D.5.
6.2. Indirect Jobs—Jobs held by persons who work outside the new commercial enterprise but are created as a result of it. Indirect jobs include the employees of the producers of materials, equipment and services that are used in the new commercial enterprise or the job-creating enterprise. It also includes “induced jobs” which are those jobs calculated through an economic model that are created when direct and indirect employees spend their increased incomes on consumer goods and services. Memo, Neufeld, Acting Assoc. Director, Domestic Operations, USCIS, HQ 70/6.2, AD 09-38 (Dec. 11, 2009), AILA Doc. No. 09121561. 6 USCIS-PM, Pt. G, Ch. 2, ¶D.5. Indirect jobs, unlike direct jobs, need not take place within the regional center. Letter, Mayorkas, Director USCIS (Dec. 3, 2010), AILA Doc. No. 10122135. And USCIS will not distinguish between full- or part-time jobs when it comes to indirect jobs. USCIS, Talking Points from EB-5 Interactive Series: Expenses that are Includable (or Excludable) for Job Creation (June 4, 2015) at 2, AILA Doc. No. 15052164. USCIS has described indirect jobs as derived from expenses to backward linkages such as the purchase of building materials from suppliers and induced jobs as derived from forward linkages such as consumer spending by construction workers from the job site. Id.
7. Allocation of Jobs—Where there are non-EB-5 investors and EB-5 investors all jobs may be credited to the qualifying investors. 8 CFR §204.6(g)(2); Policy Memo (May 30, 2013), supra at 20. A job may only be counted one time for purposes of allocation among EB-5 investors. Id. Full-time positions will be allocated to immigrant investors based on the date their petition to remove conditions was filed, unless otherwise stated in the relevant documents. 6 USCIS-PM, Pt. G, Ch. 2, ¶D.5. USCIS shall recognize any reasonable allocation method made among investors in regard to the identification and allocation of qualifying positions. 8 CFR §204.6(g)(2).
I. Regional Center Program
1. Generally—Section 610 of the Appropriations Act, PL 102-395, 106 Stat. 1828 (Oct. 6, 1992) (8 USC §1153 note); 58 FR 44606–08 (Aug. 24, 1993); 8 CFR §204.6(m), 6 USCIS-PM, Pt. G, Ch. 3. established a program for immigrant investors that permits investment through regional centers and relaxes the job creation requirements so that jobs may be proven through direct or indirect employment. The section was amended by Section 402 of the Visa Waiver Permanent Program Act of 2000, PL 106-396. It was further amended by Section 11037, 21st Century DOJ Appropriations Authorization Act, PL 107-273, 116 Stat. 1758 (Nov. 2, 2002). Three thousand visas per year are for investors in the Regional Center Program, but such investors are not limited to the 3,000 cap because they are alternatively eligible for any available visas allocated to the EB-5 category as a whole. The Regional Center Program has been extended continually, most recently to Sept. 30, 2018. [PL 115-141, Div. M, Title II, Sec. 204, 132 Stat. 348 (Mar. 23, 2018)]. A regional center, defined by Congress and then USCIS is “any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation and increased domestic capital investment.” 8 CFR §204.6(e); PL 106-396 §402; Memo, Neufeld, Acting Assoc. Director, Domestic Operations, USCIS, HQ 70/6.2, AD 09-38 (Dec. 11, 2009), at 3, AILA Doc. No. 09121561; AFM at 22.4(a)(2)(A). Regional Centers and related commercial enterprises should not use the words “United States,” “U.S.,” “US” or “Federal” as they may be considered deceptive acts or practices or false advertisements. USCIS, IPO, USCIS Issues Reminder of EB-5 Regional Centers Naming Conventions, reprinted in 92 No. 31 Interpreter Releases 1485, 1487 (Aug. 17, 2015).
2. Filing I-924—A regional center proposal “must provide a framework within which individual alien investors affiliated with the regional center can satisfy the EB-5 eligibility requirement and create qualifying EB-5 jobs.” Memo, Neufeld (Dec. 11, 2009) supra. It “must include a management and operational plan to administer, oversee, and manage the proposed regional center.” 6 USCIS-PM, Pt. G, Ch. 3, ¶A. A regional center wishing to participate must demonstrate how “it will promote economic growth through increased export sales, improved regional productivity, job creation, or increased domestic capital investment.” 8 CFR §204.6(m)(3)(i). An application should be approved if the regional center bases its demonstration on “general predictions” of certain conditions including direct or indirect job creation, positive economic impacts and the kinds of commercial enterprises that will attract investors. Section 11037, 21st Century DOJ Appropriations Authorization Act, PL 107-273, 116 Stat. 1758, 1847 (Nov. 2, 2002). The commercial industries that the regional center will include should be designated by the NAICS codes. USCIS must consider whether the geographic boundaries are acceptable and will do so if the applicant can establish by a preponderance of the evidence that “the proposed economic activity will promote economic growth in the proposed area.” Such inquiry is fact-specific. 6 USCIS-PM, Pt. G, Ch. 3, ¶A. Moreover, the geographic area must be “limited, contiguous, and consistent with the purpose of concentrating pooled investment.” Id. Applications to establish regional centers must be filed on Form I-924, 74 FR 912–13 (Jan. 9, 2009). The application must be filed consistent with the most current instructions of the Form I-924 and USCIS website. The Immigrant Investor Program Office in Washington, D.C. adjudicates the application. Section 610 as amended by PL 106-396 provides in part that “notwithstanding the requirements of 8 CFR §204.6, the Attorney General shall permit aliens admitted under the program described in this section to establish reasonable methodologies for determining the number of jobs created by the 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 program.”
2.1. Requirements for Approval of I-924 [8 CFR §204.6(m)(3); AFM at 22.4(a)(2)(B); IPO Manual at 86-94, 117-35]—A regional center proposal must contain the following elements:
Approval is not automatic. Matter of ___ (AAO CSC Feb. 21, 2014) [approval denied where applicant was not an economic unit on date it filed application; did not sufficiently project job creation; did not explain how it would promote economic growth within geographic area; and lacked sufficient promotional and recruitment plan].
2.2. Submission of Exemplars and Deference—See in this part Section L, infra.
2.3. Meet Requirements But Allow Indirect Job Creation—Regional Center job creation involves a separate analysis from job creation in other contexts. Section 610 of PL 102-395 as amended by Section 402 of PL 106-396 (8 USC §1153 note) provides in part that “notwithstanding the requirements of 8 CFR §204.6, the Attorney General shall permit aliens admitted under the program described in this section to establish reasonable methodologies for determining the number of jobs created by the 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 program.” The regional center investor must meet other criteria of employment-creation investors, but is permitted to show that investment within the regional center will create jobs indirectly beyond the commercial enterprise. 8 CFR §204.6(m)(7). Reasonable economic methodologies, such as RIMS II, IMPLAN, REMI, and REDYN may be used to demonstrate the indirect job creation. One method is to multiply the number of direct jobs by the direct effects employment multiplier that is available under each RIMS II / IMPLAN (or other economic methodology) job category. The other is a demand multiplier method. The economic model relied upon to establish indirect job creation, however, must have reasonable and/or accepted temporal assumptions that the jobs will be created within the two-year period. If it does not, USCIS can still assume that the jobs would be created within the two-year period if the model is based upon the infusion of capital or the creation of direct jobs and the capital infusion and/or direct jobs will occur within the two-year period. AFM at 22.4(c)(4)(D)(ii). USCIS has stated in a policy memorandum that an amendment is not required for a regional center to change its economic methodologies but that it would be acceptable if the regional center desired to file such an amendment request. Policy Memo (May 30, 2013), supra at 22-23; see also Instructions to I-924. See also Q & A, USCIS, EB-5 Economic Methodologies AILA Doc. No. 12070563 [discussion of economic methodologies as they relate to hotel and resort development and real estate]; IPO Manual 173-97 (Regional Center Job Creation) and IPO 288-338 (Training for Economists).
2.4. Capital Expenditure Model (Demand Multiplier)—Divide the investment amount by $1,000,000 and then multiply the result by the final demand employment multiplier. USCIS, EB-5 Quarterly Stakeholder Meeting (June 30, 2011), AILA Doc. No. 11050462. The $1,000,000 will be determined in current value of dollars less money used as displacement vs. creation of new market.
(1) Expenses and Revenues As Inputs—Many regional centers use expenses or revenues (typically construction expenditures and operational revenues) rather than jobs as inputs into the input/output methodology they employ to establish job creation. 6 USCIS-PM, Pt. G, Ch. 2, ¶D.5. USCIS has addressed which expenses they will consider as “includable” or “excludable” in the input/output models for purposes of job creation. USCIS, Talking Points from EB-5 Interactive Series: Expenses that are Includable (or Excludable) for Job Creation (June 4, 2015), AILA Doc. No. 15052164. USCIS will not simply accept all “hard costs” as expenses for purposes of the input/output model but will require that costs “be broken down into specific expenditure categories (such as masonry, work, plumbing, flooring, hardscaping, softscaping, etc.), so that USCIS economists can assess whether these costs are reasonable inputs.” Id at 3.
(2) Contingency and Reserve Funds—Permissible inputs if they adhere to acceptable industry practices but at the I-829 stage USCIS will assess whether funds were actually spent. Id.
(3) Furniture, Fixtures and Equipment—May be permissible inputs depending upon the specific project (e.g., constructing a building vs. a ship). Id.
(4) Soft Costs—Architectural and Engineering expenditures are permissible. Some legal fees to comply with tax, employment and local regulations are permissible but not ones related to EB-5 compliance. Some financing fees, such as those related to fees from loan or equity funding may be permissible but ones related to EB-5 capital may not be permissible. Id. at 5.
(5) Land Purchases—Real estate acquisition is not recognized as a job-creating activity in and of itself. Thus, “it is not generally reasonable to treat funds spent on real estate acquisition as inputs to an employment impact model.” But certain soft costs related to real estate transactions may be permissible. Id. at 4. See also Q&As, USCIS, EB-5 Economic Methodologies (July 3, 2012), AILA Doc. No. 12070563.
2.5. Tenant-Occupancy Methodology—6 USCIS-PM, Pt. G, Chap. 2, ¶D.6. On May 15, 2018 USCIS issued a Policy Alert, PA-2018-03, AILA Doc. No. 18051638 rescinding tenant occupancy because in its view it is not a reasonable methodology for counting jobs. Rescission of the policy does not affect petitions pending on May 15, 2018. USCIS Policy Manual now states:
“As of May 15, 2018, USCIS rescinded its prior guidance on tenant occupancy methodology. Previously, on December 20, 2012, USCIS had issued policy guidance defining the criteria to be used in the adjudication of applications and petitions relying on tenant occupancy to establish indirect jobs. See Operational Guidance for EB-5 Cases Involving Tenant-Occupancy, GM-602-0001, issued December 20, 2012. In November 2016, USCIS published consolidated policy guidance on immigrant investors in this Policy Manual, including guidance on the tenant occupancy methodology. That guidance provided that investors could (1) map a specific amount of direct, imputed, or subsidized investment to new jobs, or (2) use a facilitation-based approach to demonstrate the project would remove a significant market-based constraint.
“The first method requires mapping a specific amount of direct, imputed, or subsidized investment to new jobs such that there is an equity or direct financial connection between the EB 5 capital investment and the employees of prospective tenants. In practice, however, the construction of standard office or retail space alone does not lead to a sufficient connection for this type of mapping such that tenant jobs can be credited to the new commercial enterprise. The existence of numerous other factors, such as the identity of future tenants and demand for that type of business, makes it difficult to relate individual jobs to a specific space.
“The second method looks at whether the investment removes a significant market-based constraint, referred to in the 2012 guidance as the “facilitation based approach.” In providing this approach as an option, USCIS explicitly allowed applicants and petitioners to avoid having to establish an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. As of May 15, 2018, however, USCIS determined that that allowance was ill-advised, because a direct financial connection between the EB-5 capital investment and the job creation is necessary to determine a sufficient nexus between the two. Reliance on a showing of constraint on supply or excess of demand by itself does not establish a causal link between specific space and a net new labor demand such that it would overcome the lack of a sufficient nexus.
“Moreover, allowing applicants and petitioners to use prospective tenant jobs as direct inputs into regional growth models to generate the number of indirect and induced jobs that result from the credited tenant jobs leads to a more attenuated and less verifiable connection to the investment. There is also no reasonable test to confirm that jobs claimed through either tenant-occupancy methodology are new rather than relocated jobs such that they should qualify as direct inputs in the first place.
“In sum, tenant-occupancy methodologies described in the 2012 Operational Guidance and previously incorporated into the Policy Manual result in a connection or nexus between the investment and jobs that is too tenuous and thus are no longer considered reasonable methodologies or valid forecasting tools under the regulations.” [footnotes omitted]
(1) Pending and Prior Petitions— Rescission of the policy does not affect petitions pending on May 15, 2018. Policy Manual, Technical Update (July 30, 2018). In addition under the Policy Alert: “Petitions directly related to projects included in . . . approved applications or petitions [on May 15, 2018] will be adjudicated under prior guidance.” For prior standards, see the 15th edition of this Sourcebook, at p.1347.
2.6. Hotels and Resorts—USCIS’s view on hotels and resorts is that job credit based upon visitor spending will only be permitted where the petitioner can demonstrate by a preponderance of the evidence that the project or resort “will result in the increase in visitor arrivals or spending in the area.” The applicant must show how “new visitor spending and tourism demand is driven by the specific project.” In addition, construction jobs lasting over two years and management/operation of the hotel including revenues may be considered eligible inputs. Q&As, USCIS, EB-5 Economic Methodologies (July 3, 2012), AILA Doc. No. 12070563. Hotel revenues are creditable for job creation if the investor can show: (1) unmet aggregate demand for the hotel by examining occupancy rates of hotels in the area through data and market studies; and (2) guest spending, i.e., hotel revenues. Q&A, USCIS, A discussion About the EB-5 Immigrant Investor Program Teleconference (Feb. 26, 2014) #9, AILA Doc. No. 14021042.
2.7. North American Industry Classification System (NAICS) Codes—The NAICS codes are codes which identify the specific industry that employees will work in when estimating job creation impacts. NAICS codes are used to determine if the job creation estimates in the proposal are reasonable. However, even USCIS recognizes that “There is no requirement in the law that a certain level of specificity in the NAICS codes (e.g., 4 digits) is required” when determining job creation estimates. IPO Manual at 196.
2.8. Investor Not Affiliated with Regional Center—An individual investor who is not formally affiliated with a regional center but is maintaining his or her investment within the geographic scope of a regional center cannot benefit from indirect job creation and must demonstrate the activity or enterprise has created 10 direct jobs. IPO Manual at 145.
3. Investment Amount—Prior to Nov. 21, 2019 investment is $1 million unless made within a TEA, which then only requires a $500,000 investment. For the investment to qualify for the reduced $500,000 minimum, the entity ultimately using the funds for job-creating activities—whether the new commercial enterprise itself or a job-creating entity affiliated with a regional center and doing business with the new commercial enterprise—must be physically located within a TEA. Matter of Izummi, at 173-74. Beginning Nov. 21, 2019 the amounts have increased to $1,800,000 and $900,000 respectively.
4. Nonprofit Investment—Although the stand-alone EB-5 project must be a for-profit entity and the NCE in a regional center must be a for-profit entity, there is nothing to prevent the NCE in a regional center from loaning funds to a not-for-profit JCE. Q&A, USCIS, A discussion About the EB-5 Immigrant Investor Program Teleconference (Feb. 26, 2014) #7, AILA Doc. No. 14021042.
5. Amendments to I-924—To determine whether an amendment must, may, or need not be filed a regional center must review the instructions to the I-924. 6 USCIS-PM, Pt. G, Ch. 3, ¶D. Current instructions require that an amendment must be filed (and therefore an I-526 petition may not be approved until the amendment is approved) when a regional center is seeking a change to (i) its name, ownership or organizational structure; (ii) its oversight and reporting responsibilities; (iii) to add or remove the principals of the center immediately following changed circumstances; or (iv) its geographic area. It may also file an amendment to: (i) change the industries of focus of the regional center; (ii) add a new commercial enterprise and/or seek a preliminary determination on an exemplar; or (iii) notify USCIS of changes in the name, organizational structure or administration, capital investment instruments or offering memoranda for a previously added NCE. An amendment is not required to change the address, contact information, change of duties among the regional center principals, changes to nonprincipal managing companies, contracting agents or similar changes or information. For notification to USCIS of these latter changes email notice to the EB-5 mailbox at USCIS.ImmigrantInvestorProgram@uscis.dhs.gov should be sent and USCIS will decide if an amended I-924 is necessary.
6. I-924A and Updated Information—USCIS now requires that regional centers provide updated information on an annual basis, a cumulative basis, and/or as otherwise requested on Form I-924A. 8 CFR §204.6(m)(6). Typically it must be filed on or before Dec. 29th of each fiscal year. The regional center must present information that it is continuing to promote economic growth, improve regional productivity, job creation, or increase domestic capital investment in the area. USCIS will obtain reports on a yearly basis from the regional centers that include, among other data, the numbers of approved I-526 petitions, the aggregate capital invested, the number of jobs created, the number of approved I-829s, the names and information on each investor, and the method of administering the regional center. Letter, Berez, Chief Adjudications Officer, USCIS Foreign Trader, Investor & Regional Center Program, [HQOPRD] 70/6.2.8 to Beitzel (Jun. 12, 2007), AILA Doc. No. 07061360. For an example of requirements tied to an approval see Letter, Velarde, Chief, Service Center Operations, USCIS HQOPRD 70/6.2.8, “Los Angeles Film Regional Center Approval (Mar. 24, 2008), AILA Doc. No. 08050262 [requiring production yearly of 17 different items ranging from how it does its due diligence on investors to the total aggregated EB-5 capital invested]. See also USCIS, Questions and Answers: Form I-924A (Dec. 2011), available at www.uscis.gov/forms/questions-and-answers-form-i-924a [when using economic impact modeling for job creation it is necessary to provide a detailed narrative and analysis that identifies the jobs created and the methodology used]; IPO Manual at 97-100.
7. Sale of Regional Center—A regional center entity may be sold, but if sold should be reported to USCIS within 30 days and USCIS may require the filing of a new I-924A. Q&A, USCIS, A Discussion About the EB-5 Immigrant Investor Program Teleconference (Feb. 26, 2014) #1, AILA Doc. No. 14021042.
8. Termination of Regional Centers—USCIS has the authority under 8 CFR §204.6(m)(6) to terminate a regional center if it “no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment.” Matter of Regional Ctr. of Victorville Dev., Inc. CSC (AAO Dec. 21, 2011) [AAO upheld termination of regional center on grounds that its granting of bridge loan occurred after jobs were created], AILA Doc. No. 12021367; 6 USCIS-PM, Pt. G, Ch. 3, ¶E. For notices of terminated regional centers, see USCIS’s website, AILA Doc. No. 17053102. USCIS has terminated regional centers for failure to timely file the I-924A and for failure to promote economic growth. EB-5 Telephonic Stakeholder Engagement, Colucci, IPO Director, USCIS (Apr. 22, 2015) at 2, AILA Doc. No. 15031770 [taking the position that they may terminate regional centers even outside of the I-924A review for failure to promote economic growth, including criminal indictment and misallocation of investor funds]; IPO Manual at 95-96. However, in deciding to terminate a regional center for failure to continue to promote economic, the Director should take into consideration and balance positive factors against negative factors. Positive factors include: (i) the success of the projects associated with the Center; (ii) the numbers of new jobs created; (iii) the steps taken to mitigate improper activity; and (iv) the information reported on the I-924A including the amount of investment, the amount of job creation and the number of I-526/I-829s approved, denied and revoked. Negative factors include: (i) the failure to make the full amount of the investor’s funds available to the job creating business because of diversion of funds, improper expenditures, or unauthorized purchases; (ii) the failure to exercise proper oversight over those managing the regional center and its projects; and (iii) other illegal/improper activity. Matter of S D R C , ID# 13768 (AAO Mar. 15, 2017), AILA Doc. No. 17032730 [remanded termination of regional center back to the director to balance the positive factors that he failed to consider against the negative factors]; Matter of P A S , LLC ID# 513109 (AAO Dec. 21, 2017) [reversed termination of regional center after balancing countervailing equities to the original unlawful activity, including the near completion of the project as proposed and the existence of a new owner committed to promoting future economic growth]. But see In re Vermont Agency of Commerce and Community Development Regional Center, Case No. RCW1031910148 (IPO July 3, 2018) [terminated regional center involving Jay Peak because of: (1) the extent and duration (8 years) of the fraud; (2) the RC’s inaction resulted in harm to the investor; and (3) the RC’s statement that it does not intend to sponsor projects in the future, intends to wind down, and therefore will not promote investment in the future. The IPO rejected the claim that immediate termination would hurt the investors and used that as proof that the RC should be terminated]. A regional center termination process is initiated through a notice of intent to terminate (NOIT) and a termination may be appealed to the AAO. Terminated regional centers are listed on USCIS’ website under the regional centers terminations page but USCIS makes no claim that the list is completed. See AILA Doc. No. 18122617.
8.1. Effect of Termination on I-526s and I-829s—USCIS regulations provide that upon the termination of a regional center, the “director shall send a formal written notice to any alien with the regional center who has been granted [CR] status, and who has not yet removed the conditional basis … of the termination of the alien’s permanent resident status, unless the alien can establish continued eligibility for alien entrepreneur classification under 203(b)(5) of the Act.” 8 CFR §204.6(m)(9). Thus, if CR status is already obtained it is not automatically terminated as the “investor will continue to have the opportunity to demonstrate compliance with EB-5 program requirements, including through reliance on indirect job creation” 6 USCIS-PM, Pt. G, Ch. 5, ¶C. However, at the I-526 stage, the termination of a regional center constitutes a material change for the I-526 associated with that center. 6 USCIS-PM, Pt. G, Ch. 4, ¶C.
9. Audit of Regional Centers—USCIS initiated an audit program. The audit team will perform the following tasks: Review applications, certifications, and associated records; Review public records and information on the regional center; Verify the information, including supporting documents, submitted with the application(s) and in the annual certification(s); Conduct site inspection; Review and analyze documents; and Interview personnel to confirm the information provided with the application(s) and annual certification(s). USCIS expects all regional centers to have all documents associated with the Center available at the time of the audit. USCIS, EB-5 Regional Center Compliance Audit (Mar. 20, 2017), AILA Doc. No. 17032105. Separate and apart from compliance audits, FDNS will engage in site visits and some USCIS resources will be put toward interviews of I-829 applicants.
10. Listing—A listing of regional centers can be found at www.uscis.gov/eb-5centers.
J. Petition (I-526) and Evidence Required [8 CFR §§204.6(a)–(d); Policy Memo, (May 30, 2013) supra at 11-12; 6 USCIS-PM, Pt. G, Ch. 2, ¶¶C.3–5; Pt. G, Ch. 4]—Priority date established upon filing. EB-5 (I-526) Petition filed at Immigrant Investor Program Office in Washington, D.C. Similar to CR status for marriages. INA §216A(a); 8 CFR pt. 216; 59 FR 26587 (May 23, 1994). First file I-526. If approved then obtain IV or AOS as a CR. Can remove condition after 2 years. The evidentiary requirements for approval of an I-526 are addressed at 8 CFR §204.6(j) and AFM at 22.4(c)(3). The standard of proof is by a preponderance of the evidence, including more likely than not that the required jobs will be created. Policy Memo (May 30, 2013), supra at 2, 21; 8 CFR §§204.6(j), (m); IPO Manual at 266-86 (basic adjudication); 339-370 (burden and standard of proof) For a discussion of the removal of conditions, see Section K, infra.
1. Regarding the Enterprise [8 CFR §204.6(j)(1)]—(1) articles of incorporation or business organization documents; or (2) authorization to do business in state or municipality. Multiple businesses can be used in EB-5, but only if each is a wholly owned subsidiary of the NCE. 8 CFR §204.6(e).
2. Regarding the Investment [8 CFR §204.6(j)(2)]—Documents evidencing investment may include bank statements, evidence of purchased assets, evidence of property transferred from abroad, stock certificates given for investment, or loan or mortgage agreements.
3. Regarding Obtaining the Capital Through Lawful Means [8 CFR §204.6(j)(3)].
4. Regarding Creation of 10 Jobs [8 CFR §204.6(j)(4)]
Jobs must be created in the targeted employment area if petitioner is relying on the reduced $500,000 investment. Matter of Izummi, 22 I&N Dec. 169, 173–74 (AC 1998) [where business established in targeted area but the business is to give loans to companies who employ persons outside the area, the job creation requirement is not met], unless it is a regional center in which case indirect jobs may be outside the regional center.
No investor may file an I-526 seeking indirect job creation prior to the approval of the regional center. USCIS, EB-5 Quarterly Stakeholder Meeting (June 30, 2011), AILA Doc. No. 11050462.
5. Petitioner Will Engage in Day-to-Day Business or Policy Formulation [8 CFR §204.6(j)(5)].
6. Targeted Employment Area (if applicable) [8 CFR §204.6(j)(6)]
7. Regional Center Information—Investors affiliated with regional center must also submit the most recently issued regional center approval letter; and documentation relating to the center’s approved capital investment structure and job creation methodology. The investor should also include the confidential information memorandum, the escrow agreement, the escrow instructions, the limited partnership agreement and any amendment to the confidential memorandum. See e.g., Letter, Velarde, Chief, Service Center Operations, USCIS HQOPRD 70/6.2.8, “Los Angeles Film Regional Center Approval (Mar. 24, 2008), at 3, AILA Doc. No. 08050262 If there is a “material change” in the documentation from that submitted by the regional center, the Service may deny the petition.
8. Expedite Requests—The national expedite criteria for all petitions and applications apply to the EB-5 petitions, including the criteria that there would be “severe financial loss to a company or to an individual.” www.uscis.gov/forms/expedite-criteria (June 2011). Expedite requests should be directed to USCIS.firstname.lastname@example.org. For expedite criteria generally, see Chapter 5, ¶ III.S.2, supra.
9. Material Change—A petition cannot be approved if, after filing, “the immigrant investor becomes eligible under a new set of facts or circumstances.” A material change occurring after a petition is filed renders the applicant ineligible. Matter of Izummi, 22 I&N Dec. 169, 176 (AC 1998); 8 CFR §103.2(b)(1). IPO applies Kungys v. U.S., 485 U.S. 759, 770-72 (1988) in defining material change which it characterizes as a change in circumstances which “would have a natural tendency to influence or predictably capable of affecting the decision.” If the petition is already approved but the investor has not yet obtained conditional residency a material change is sufficient to trigger a notice of intent to revoke. 6 USCIS-PM, Pt. G, Ch. 4, ¶C. A change that occurs consistent with a business plan or other supporting documents is not material; nor is the amendment of documents to remove a liquidation clause that is not an impermissible debt arrangement. Id. The termination of a regional center constitutes a material change for the I-526 associated with that center. Id. If an applicant makes a material change, a new I-526 must be filed. But changes to pre-Nov. 21, 2019 petitions that are made to comply with securities laws based upon regulatory changes effective Nov. 21, 2019 will not result in a denial or revocation under certain conditions. 8 CFR §204.6(n); 84 FR 35750, 35783 (July 24, 2019).
10. Children and Age-Outs—A child must be under 21 years old at the time the I-526 is filed. The Child Status Protection Act applies. See supra section A.2.
11. Priority Dates—The priority date is the date the completed signed petition (including all initial evidence and the correct fee) is properly filed consistent with USCIS instructions. Once a priority date is obtained it may be used for a subsequently filed I-526 where the first I-526 was approved but may not be used where the first petition was denied or it was used to obtain conditional permanent residence. 84 FR 35750, 35758-62 (July 24, 2019) [the Form I-526 must be approved for the EB-5 petitioner to retain the priority date]. Even a revoked I-526 petition will retain the priority date as long as the revocation was not for fraud or willful misrepresentation of a material fact or based upon a material error. 8 CFR §204.6(d); A priority date is not transferable to another person. A petitioner with multiple approved I-526s is entitled to the earliest qualifying priority date. The priority date retention will apply to petitions filed prior to Nov. 21, 2019 so long as the petitioner is not admitted as a CR. 84 FR at 35761.
12. Traveling to U.S. to Monitor/Investigate Investment—An investor is not necessarily precluded from obtaining a B-2 visa to travel to the U.S. to examine and monitor his investment as long as he establishes the qualifications for the visa and does not intend to AOS if I-526 is approved. 9 FAM 402.2-5(C)(7).
13. CR Status through AOS or IV—Once the I-526 is approved an applicant in the U.S. may seek AOS. An applicant abroad may file for an immigrant visa. The NVC has established a separate desk with a dedicated email address (NVCeb5@state.gov). Because I-526 applications are now filed electronically NVC has established a process to receive appropriate documents electronically through NVCAttorney@state.gov. Additional information regarding the electronic process can be obtained through Document Scanning FAQs. See Processing EB-5 Petitions at NVC (June 2018), AILA Doc. No. 18062205.
K. Investor Must Petition for Removal of Conditions on CR Status (I-829)—To remove the conditions on CR status, must petition within 90 days before 2nd anniversary. File request on I-829. Petition is filed in Washington, DC. at the Immigrant Investor Program Office. Petitioner need not be physically present in U.S. to file. 8 CFR §§216.6(a)(1), (3); 6 USCIS-PM, Pt. G, Ch. 5; Memo, Pearson, Ex. Assoc. Comm., Office of Field Operations (Mar. 3, 2000), AILA Doc. No. 00060722.
1. Petition must contain facts and information demonstrating that [8 CFR §216.6(a)(4)]:
1.1. The CR invested or was actively investing the required capital and it was sustained throughout the period of CR status; 8 CFR §§216.6(c) and (d); Must show that he continuously maintained the capital investment over the 2 years of CR. 6 USCIS-PM, Pt. G, Ch. 5, ¶A.2;
1.2. The CR sustained the enterprise and “substantially met the capital investment requirement of the statute,” 6 USCIS-PM, Pt. G, Ch. 5, ¶A.2 by providing e.g., bank statements, invoices, receipts, contracts, business licenses, and tax returns, including quarterly statements);
1.3. The CR “created or can be expected to create within a reasonable time 10 full-time jobs for qualifying employees,” 8 CFR §216.6(a)(4)(iv); 6 USCIS-PM, Pt. G, Ch. 5, ¶B. See¶ H.2, supra, regarding job creation.
(1) The regulations define “qualifying employee” as a USC, LPR or other immigrant lawfully authorized to be employed in the U.S. including (but not limited to) conditional resident, asylee, refugee, and person under suspension of deportation. Does not include NIVs, the investor or the investor’s spouse or children. 8 CFR §204.6(e). USCIS believes that they can use I-9s to determine whether the employees qualify. IPO Manual at 141.
(2) If I-829 is based upon preserving jobs in a troubled business, the regulations require a showing that the investor maintained the number of existing employees and the pre-investment level. 8 CFR §216.6(c)(1)(iv); 6 USCIS-PM, Pt. G, Ch. 5, ¶B. USCIS maintains that each investor must preserve 10 jobs even though the regulation addresses preserving only “existing” jobs. Compare 8 CFR §204.6(j)(4)(ii) and 8 CFR §216.6(a)(4)(iv) with Policy Memo (May 30, 2013), supra at 17-18; IPO Manual at 171. See also 56 FR 60897.
(3) Position Focused, Not Employee Focused [6 USCIS-PM, Pt. G, Ch. 5, ¶B.1]—The fact that the position may be filled by more than one employee does not exclude the position from consideration as full-time employment, e.g., different day laborers as long as the position remains constant.
(4) Reasonable Period of Time for Job Creation—USCIS may determine, based upon the totality of the circumstances, that a time greater than 2 years is reasonable. Jobs created within a year of the 2-year anniversary of the investor’s admission as a CR is generally considered reasonable. But jobs created beyond 3 years will not be considered reasonable unless there are extreme circumstances such as force majeure. 6 USCIS-PM, Pt. G, Ch. 5, ¶B.2.
(5) Relocation of Jobs—USCIS also maintains that the relocation of preexisting jobs from another location to a new location or facility based on the petitioner’s investment in a new or renovated facility would not be considered to be newly created jobs.
2. USCIS must make determination within 90 days of filing or interview (whichever is later). 8 CFR §216.6(c). However, legacy INS extended the period to one year. Memo, Redman, Acting Asst. Comm., Adjudications, HQ 70/23.12-P (Oct. 9, 1997), reprinted in 74 No. 43 Interpreter Releases 1714, 1732 (Nov. 7, 1997). When petition is timely filed, the director may approve it, may request additional evidence, may refer the petitioner for an interview at a district office or may deny the I-829 if the eligibility requirements have not been met. AFM at 25.2(e); see e.g., Matter of ___ (CSC) (AAO Apr. 14, 2011) [upholding denial of I-829 where there was reason to doubt veracity of representations].
3. Travel During Pendency of I-829, Extension of I-829, and Denial of I-829—USCIS is required to document CR status until conditions on CR status have been removed or the I-829 is denied, and during removal proceedings until there is a final order of removal. 6 USCIS-PM, Pt. G, Ch. 5 ¶D; Memo, Yates, Assoc. Dir. Operations, USCIS and Cuddihy, Director, Office of Refugee, Asylum and International Operations, USCIS, “Extension of Status for Conditional Residents with Pending or Denied Form I-829, Petitions Subject to Public Law 107-273,” (Jan. 18, 2005), AILA Doc. No. 05012167. Even if USCIS denies the I-829 it must still provide a temporary I-551 in CR’s passport or Form I 94 with a temporary I-551 pending a final order of removal. 6 USCIS-PM, Pt. G, Ch. 5; Memo, Pearson, Ex. Assoc. Comm., Office of Field Operations (Mar. 3, 2000), AILA Doc. No. 00060722; Memo, Redman, Acting Asst. Comm., Adjudications, INS, HQ 70/23.13-C (Oct. 9, 1997), reprinted in 74 No. 43 Interpreter Releases 1714, 1731 (Nov. 7, 1997); 8 CFR §264.5(g). The investor is entitled to a receipt demonstrating the CR status until there is a final order of removal, and may use that receipt “as evidence of status for travel, employment, or other purposes.” 6 USCIS-PM, Pt. G Ch. 5. See USCIS Policy Alert, PA-2018-02 (May 2, 2018), AILA Doc. No. 18050232. Persons who are overseas with an expired I-551 may be admitted by obtaining a transportation letter or Boarding Foil. Transportation letters or Boarding Foils will now only be issued by USCIS or DOS (where no USCIS presence exists) pursuant to filing a Form 1-131A. A CR who presents an expired I-551 with a receipt issued within the past 6 months for an I-829 may be admitted pursuant to 8 CFR §211.1(a)(5) if seeking admission after a temporary absence of less than one year.
4. Change in TEA status—If the investor made a $500,000 investment based upon the investment in a targeted employment area and received his CR status, a change in the TEA status of the area (i.e., it ceased to be an area of high unemployment or a rural area) prior to the filing of the I-829 will not affect the approval of the I-829. AFM at 22.4(c)(4)(F).
5. Deference Granted to Prior I-526 Approval Except for Legal or Material Changes—See in this part Section L, infra.
6. Adjustment of Status to LPR from CR Obtained Through Different Immigrant Category or Through Different I-526 Approval—USCIS regulation at 8 CFR §245.1(c)(5) would prohibit those in investor-based (or family-based) CR status from obtaining LPR status through a second AOS directly from that CR status if the second AOS application is based upon a second immigrant petition (e.g., CR investor marries a USC and seeks to AOS on that basis, or an investor CR seeks to AOS based upon a second I-526 petition). However, applicable law for marriage-based CR status allows AOS through a separate marriage upon withdrawal of CR status. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991) [marriage to new USC]. It may be possible therefore to withdraw CR status and file a new AOS application if the second AOS is based upon an immediate relative. The issue is more complex when seeking AOS based upon an employment category (including an second approved I-526) given the bars to AOS under INA §245(c)(2) and INA §245(c)(7) permitting employment-based AOS only from an NIV status. One way to avoid all of these obstacles is simply to obtain an I-407 abroad and file for an immigrant visa through consular processing.
L. Deference Policy
1. Generally—USCIS recognizes that: “The policy of deference is an important part of ensuring predictability for EB-5 investors and commercial enterprises (and the persons they employ), and also conserves scarce agency resources…” USCIS Policy Memo, PM-602-0083, EB-5 Adjudications Policy, (May 30, 2013), supra at 23; 6 USCIS-PM, Pt. G, Ch. 6. USCIS has determined, as a matter of deference, that it “will not reexamine determinations made earlier in the EB-5 process, and the earlier determinations will be presumed to have been properly decided.” Policy Memo (May 30, 2013), supra at 23; 6 USCIS-PM, Pt. G, Ch. 6. The Service has also acknowledged that: “In some instances, the adjudication of EB-5 petitions has been prolonged due to the issuance of requests for evidence (RFEs) that inappropriately seek to revalidate previously favorable determinations.” Memo, Neufeld, Acting Assoc. Director, Domestic Operations, USCIS, HQ 70/6.2, AD 09-38 (Dec. 11, 2009), at 4, AILA Doc. No. 09121561. Deference will not be granted where the officer has made an “objective mistake of fact or law” which USCIS interprets to mean “the officer misapplied the applicable eligibility criteria, or failed to take into consideration a fact that would have been determinative in the eligibility decision,” such as mistaking the unemployment level for TEA designation at 150% when it was 125%. Q&A, USCIS, A Discussion About the EB-5 Immigrant Investor Program Teleconference (Feb. 26, 2014) #3, AILA Doc. No. 14021042. However, the use of an officer’s subjective judgment in assessing the facts is granted deference. Id.
1.1. I-526/I-829 Stage—Favorable decisions in the I-526 regarding: (i) the capital investment structure of the enterprise; (ii) the determination that it is a “new” commercial enterprise; (iii) the indirect/direct methodology for job creation in regional center cases; (iv) the reduced capital investment for a TEA; and (v) that the capital was lawfully obtained “should generally be given deference.” AFM at 25.2(e)(4)(E). If a material change arises prior to the approval of the I-526 or admission in CR status, the petitioner must file a new I-526. If the material change arises subsequent to admission in CR status, it may be adjudicated at the I-829 stage. Policy Memo (May 30, 2013), supra at 24-25.
1.2. Regional Center and Deference—Deference is given to the regional center’s economic methodology: “Where USCIS has previously concluded that an economic methodology satisfies the requirement of being a ‘reasonable methodology’ to project future job creation as applied to the facts of a particular project, USCIS will continue to afford deference to this determination for all related adjudications, so long as the related adjudication is directly linked to the specific project for which the economic methodology was previously approved. Policy Memo (May 30, 2013), supra at 23. See also Operational Guidance, USCIS, Guidance on EB-5 Adjudications Involving the Tenant-Occupancy Methodology, OG-602.06-001 (May 8, 2012), AILA Doc. No. 12051148 [USCIS will not revisit the economic methodology, economic model or business plan “unless the facts underlying the prior decision have materially changed”]. If there is a favorable determination of the regional center, its capital investment structure and job creation, it “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.” AFM at 22.4(a)(2)(E) Note. USCIS will maintain deference even if there are differences between the North American Industry Classification System (NAICS) industry codes approved for the regional center from those used in the actual project after CR status is obtained, as long as the alternative project is within the same industry. Policy Memo (May 30, 2013), supra at 26 and n.5. However, if the underlying facts have materially changed, there is evidence of fraud or misrepresentation in the record, or the previous favorable determination is determined to be legally deficient, deference will not apply. Policy Memo (May 30, 2013), supra at 23; see also. AFM 22.4(a)(2)(E)(i) [if the documents submitted for the regional center have been “materially altered” or are “inconsistent” with those originally filed to obtain approval, the regional center may opt to file an amendment on form I-924 or USCIS may take action upon noting the material change or inconsistency when adjudicating an individual petition].
(1) Exemplar Deference—A regional center application may also include exemplar I-526 petitions which if approved with the regional center application will result in USCIS granting deference to future identical I-526 petitions if the exemplar is an actual project. IPO Manual at 102-16. However, the submission of a regional center application with a hypothetical project will not result in deference for future I-526 petitions. USCIS Policy Memo, PM-602-0083, EB-5 Adjudications Policy, (May 30, 2013), supra at 13-15; USCIS, Talking Points from EB-5 Interactive Series: Expenses that are Includable (or Excludable) for Job Creation (June 4, 2015) at 1, AILA Doc. No. 15052164.
1.3. Tenant-Occupancy and Deference—If “the space is leased to a different type of tenant … or fails to achieve previously projected occupancy rates, such a change alone will not generally constitute a material change that triggers the elimination of deference in an actual Form I-526 or negates any possibility of individual investors removing their conditions at the Form I-829 stage.” But if tenant changes affect “the economic impact analysis and ultimate job creation numbers” in the I-924/exemplar I-526 the changes “will be revisited in future [I-526/I-829] adjudications.” Guidance Memorandum, USCIS, PM-602-0001, Operational Guidance for EB-5 Cases Involving Tenant-Occupancy, (Dec. 20, 2012), AILA Doc. No. 12122850.
2. No Deference Granted—USCIS maintains certain exceptions to deference:
2.1. Erroneously Approved or Subsequently Invalidated I-526—The Service has taken the position that where it approved an I-526 and granted CR status where the petition was not approvable based on subsequent interim decisions (e.g., Matter of Izummi), it had no statutory authority to approve the I-829 petition to remove conditions. Letter, Dixon, Deputy Gen. Counsel (HQCOU 70/11.1-C) (Sept. 10, 1998) at p.3, reprinted in 75 No. 37 Interpreter Releases 1335, 1344–55 (Sept. 28, 1998); AFM at §25.2(f)(9)(A) (2005). [This is true even if the Service granted the original I-526 petition in error and the petitioner has complied with the investment plan outlined in Form I-526]. But see Chang v. U.S., 327 F.3d 911 (9th Cir. 2003) [under Montgomery Ward v. FTC, 691 F.2d 1322 (9th Cir. 1982) INS may not retroactively apply Izummi and its progeny to deny I-829s]. “USCIS lacks authority to grant a Form I-829 if the petition does not meet the statutory and regulatory requirements. If the service center director determines that the conditional resident has not established eligibility to have the conditions removed under the statute and regulations, the petition must be denied.” AFM at 25.2(e)(6)(A)(i). See also AFM at 25.2(g)(8)(A)(i) [denial by field office director].
2.2. Material Change—6 USCIS-PM, Pt. G, Ch. 5, ¶C. USCIS maintains that “a previously favorable decision [on an I-526] may not be relied upon in later proceedings where, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or misrepresentation in the record of proceeding, or the previously favorable decision is determined to be legally deficient.” Policy Memo (May 30, 2013), supra at 22-24; Memo, Neufeld, Acting Assoc. Director, Domestic Operations, USCIS, HQ 70/6.2, AD 09-38 (Dec. 11, 2009), at 4, AILA Doc. No. 09121561; 6 USCIS-PM, Pt. G, Ch. 6. But if the material change arises subsequent to admission in CR status, it may be adjudicated at the I-829 stage. Policy Memo (May 30, 2013), supra at 24-25. Thus, “[a]n immigrant investor may proceed with the petition to remove conditions and present documentary evidence demonstrating that, notwithstanding the business plan contained in the initial Form I-526 immigrant petition, the requirements for the removal of conditions have been satisfied.” 6 USCIS-PM, Pt. G, Ch. 5, ¶C. Such investor need only demonstrate: (i) the required funds were placed at risk through the CR period; (ii) the required amount of capital was made available to the job creating business; (iii) the investment was at risk through the CR period; and (4) the investor created or can be expected to create within a reasonable time the requisite jobs. Id. A change in the multiplier in an economic analysis due to different job creation or a different industry, would permit USCIS to revisit the prior I-526 approval. Policy Memo (May 30, 2013), supra at 27. In the tenant-occupancy context, however, the change in tenants or failure to reach previously projected occupancy rates will not generally be considered a material change. Guidance Memorandum, USCIS, PM-602-0001, Operational Guidance for EB-5 Cases Involving Tenant-Occupancy, (Dec. 20, 2012), at 3 AILA Doc. No. 12122850. The standard for material change following Kungys v. U.S., 485 U.S. 759, 770-72 (1988) is whether the change had “a natural tendency to influence” or is “predictably capable of affecting” the decision.
M. Spouse and Children—Where derivative family members are not include in their investor family member’s petition to remove conditions, they must file their own petitions. If child becomes 21 (or marries) or the derivative spouse obtains a divorce after CR status is granted, the “child” or ex-spouse may still file an I-829 petition to remove conditions, and if the I-829 is approved, the “child” or ex-spouse becomes an LPR. 8 CFR §216.6(a) In addition, if the investor dies during the 2-year CR period, the spouse and children may become LPRs upon a showing that the investment and other conditions were met. 8 CFR §216.6(a)(6). A dependent may also obtain LPR status (without first obtaining CR status) where the principal investor already obtained an approved I-829. USCIS, EB-5 Immigrant Investor Program Stakeholder’s Meeting (Dec. 16, 2010) at 39. In addition, where the investor decides not to pursue an I-829 or decides not to include his family members the spouse or child must each file his or her own I-829 petition. 8 CFR §216.6(a)(1)(ii); 84 FR 35750, 35782 (July 24, 2019) [where principal fails or refuses to file an I-829 DHS allows family members to file separately; each derivative is required to file a separate I-829].
N. Termination of Status
1. Generally—USCIS may terminate CR status in certain circumstances:
1.1. If USCIS, during 2-year CR period, determines that the investor did not make a qualifying investment under INA §216A(b)(1) because:
1.2. If petition not filed within the 90-day period, unless good cause and extenuating circumstances shown. INA §216A(d)(2).
1.3. If alien does not appear for interview, unless there is good cause shown. INA §216A(b)(3).
1.4. If USCIS, after interview, determines that the facts in the petition are untrue.
1.5. DD is empowered to hold I-829 denial and give CR opportunity to file a new I-526. Memo, Pearson (Mar. 3, 2000), supra.
2. Children/Spouse—If CR status of the principal investor is terminated, related CR status of spouse and children is also terminated. INA §216A(b)(1)(C) and §216A(c)(2)(A).
O. Removal Proceedings
1. Burden of Proof—Investor can be deported under INA §237(a)(1)(D)(i), 8 USC §1227(a)(1)(D)(i), if status is terminated. If status is terminated because USCIS, during 2-year CR period or after an interview at the end of the 2-year period, finds the applicant ineligible, the burden is on the USCIS by a preponderance of the evidence. INA §§216A(b)(2), (c)(3)(D). However, if the investor fails to appear without valid cause at the interview, or fails to file a petition removing conditions, the burden is on the investor to establish eligibility. INA §216A(c)(2)(B).
1.1. Presentation of Evidence—In Matter of Herrera Del Orden, 25 I&N Dec. 589 (BIA 2011), the Board, in the context of the IJ’s “review” of the denial of a conditional residence marriage waiver, held that the IJ erred in treating the review as if it was an appellate review of USCIS’s denial limited to the record before USCIS. Although the decision was in the context of a INA §216(c)(4) waiver, the BIA’s broad holding that “the alien may introduce, and the Immigration Judge should consider, material and relevant evidence without regard to whether it was previously submitted or considered in proceedings before the DHS.” 25 I&N Dec. at 595, is equally applicable to review of an investor’s denied I-829 application. Matter of Figueroa, 25 I&N Dec. 596, 599 n.2 (BIA 2011) [followed Herrera Del Orden in the TPS context]. The GC of EOIR, citing Del Orden has gone even further and opined that the “general rule” is “that Immigration Judges have jurisdiction over all matters related to the proper adjudication of a removal case unless such jurisdiction is expressly withheld by an Act of Congress or through a regulation issued by the Attorney General.” Legal Opinion, King, GC, EOIR, EOIR’s Authority to Interpret the Term Unaccompanied Alien Child for Purposes of Applying Certain Provisions of TVPRA (Sept. 19, 2017) at 4, AILA Doc. No. 17100201.
2. Status During Removal Proceedings—An investor placed in removal proceedings remains eligible to travel and to work until a final order of removal. See ¶ K.3, supra.
3. Late Filing—The USCIS may accept an untimely filed I-829 if the alien shows that “failure to file a timely petition was for good cause and due to extenuating circumstances.” 8 CFR §216.6(a)(5). If the petition is not filed until after jurisdiction vests with the immigration judge, the immigration judge may terminate the matter upon joint motion. Id.
P. Naturalization and Petitioning for Others
1. Conditional permanent residents enjoy the same rights, privileges, responsibilities and duties as LPRs including the right to apply for naturalization. 8 CFR §216.1. The EB-5 statute specifically provides that a CR for purposes of naturalization “shall be considered to have been admitted” as an LPR. INA §216A(e), 8 USC §1186b(e). However, one court has determined that INA §216A(e) and 8 CFR pt. 216 permit the CR to apply for naturalization but not be granted naturalization before removal of conditions on CR status. Abghari v. Gonzales, 596 F.Supp.2d 1336 (C.D. Cal. 2009) [determining that the CR can apply for naturalization and that time spent as a CR is properly credited toward the time required for residence and physical presence in the U.S. for naturalization but not that naturalization can be granted before CR status is removed]. USCIS’s position would require the approval of the I-829 prior to adjudicating the N-400. Memo, Neufeld, Scialabba, Chang, USCIS, HQ 70/6.1.1, HQ 70/34.1, AD 09-28 (Aug. 4, 2009), at 1, AILA Doc. No. 09080761.
2. Pursuant to 8 CFR §216.1 a CR may also petition for others, although no court has addressed the question of whether these petitions may be approved before removal of conditons on CR status.
Q. Ethical Issues for DHS Officers—DHS, Ethics and Integrity: Protocols for Process of EB-5 Immigrant Investor Visa Petitions and EB-5 Regional Center Applications, Including Stakeholder Communications, AILA Doc. No. 15083110, AILA Doc. No. 15083110. Citing 18 USC §208, 5 CFR §§2635.101(b)(8) [acting impartially and not giving preferential treatment], §2635.101(b)(14) [appearance of conflict], §2635.702 [public office for private gain], §2635.501, 502 [appropriate steps to avoid appearance of loss of impartiality], and §2635.502 (c), (d) [designated officials in DHS responsible], DHS set the following guiding principles for EB-5 cases: compliance with existing ethics rules; transparency; consistency; and appearances. A potential violation would include: (1) working on, or attempting to expedite or otherwise influence the process for a friend, relative, neighbor, or acquaintance; (2) meeting with certain stakeholders to the exclusion of others; (3) referring applicants to a particular immigration practitioner or vendor; or (4) using position or title in a manner that could reasonably be construed to imply that DHS or the federal government sanction or endorse DHS employee’s personal actions. Contacts with USCIS from EB-5 petitioners, RC or their representatives should be directed to the adjudicator of the case and come through customer service or other authorized procedure and should be in writing or if by oral communication documented by DHS employee. If it is a congressional contact, written questions should be responded to in writing and oral communication should be referred to Office of Legislative Affairs. If a referral is not deemed possible encourage the congressional staffer or member of Congress to reduce the question into writing or the USCIS officer should reduce the oral communication into an after action memo or e-mail and send to the Office of Legislative Affairs. Same procedures for other elected officials (e.g., governors, mayors and state and local leaders). Senior leaders of DHS may intervene in decision-making or appeals in exceptional circumstances where the senior leader can articulate “an impartial mission-related reason for intervention.” Examples include: national security; hindering a governmental response to an emergency where serious economic injury or actual physical injury could occur; serious failure to meet DHS mission; or allegations of misconduct by government employees or contractors that raise questions about the adjudication process. The official must memorialize the decision in writing. If the Secretary or Deputy Secretary considers intervention in a particular case he must have prior consultation with the General Counsel. Misconduct may also be reported by the public to USCIS Office of Security and Integrity (OSI) and the DHS Office of Inspector General (OIG). 1 USCIS-PM, Pt. A, Ch. 10.
R. Securities Law Issues—Regional Centers and pooled investment projects that solicit investors may be required to comply with registration statement provisions and other requirements under federal and state securities laws. At least one court has directly addressed the issue whether EB-5 investments are covered under the securities laws and found they are so covered. SEC v. Liu, 262 F.Supp.3d 957 (C.D. Cal. 2017), at 969 aff’d SEC v. Liu, Case No.17-55849 (9th Cir. Oct. 25, 2018) [rejecting defendants’ argument that securities laws do not apply because there is no expectation of profit and finding that “nobody would dispute that EB-5 investors are motivated in significant part by obtaining lawful permanent residency in the United States. But the fact that the acquisition of EB-5 shares comes with unrelated benefits does not somehow convert the shares from securities into something else.”] But even if they are considered securities in certain respects, there are exemptions under the federal securities laws as follow:
1. Rule 506, Regulation D Exemption under the Securities Act of 1933
1.1. Basic Requirements—Normally an issuer (i.e., a person under §2(a)(4) of the Securities Act who issues or proposes to issue any security): (i) has to provide nonaccredited investors certain information similar to a prospectus; (ii) cannot engage in general solicitation or advertising in the offer of sale; (iii) is limited in regard to resale; and (iv) is subject to the integration rule which allows the SEC to look at all offers and sales made within the 6-month period both before and after the offering to determine compliance with Regulation D.
1.2. Exemption for Accredited Investors—Companies may claim to be exempt from these general requirements if they are dealing with “accredited investors.” If the investor is not “accredited,” however, the investor must be provided with detailed information required by Rule 502(b). If Regulation D applies and there is no exemption for accredited investors, an exemption might still be sought under Regulation S, which exempts from the Securities Act the offer and sale of securities if made abroad. In any sale of a security, an issuer (including a new commercial enterprise in the EB-5 context) may not use deceptive or manipulative practices, which includes making untrue statements of material fact or omitting facts which are material. 17 CFR §240.10b-5.
(1) Accredited Investors—Generally are persons whose: (1) individual net worth or joint net worth with spouse exceeds $1,000,000; (2) individual income exceeded $200,000 in each of the 2 most recent years and is expected to reach the same level in the current year; and/or (iii) joint income including that person’s spouse exceeded $300,000 in each of the 2 most recent years and who expects to reach that income level in the current year.
2. Rule 10b-5 Anti-Fraud Provision Under Securities and Exchange Act of 1934
2.1. Securities and Exchange Commission (SEC) Civil Actions
(1) Jay Peak, Inc.—In SEC v. Quiros, Stenger, Jay Peak, Inc. et al., No. 16-cv-21301-DPG (S.D. Fla. Apr. 12, 2016), the SEC initiated a major civil action against the owners and operators of the Jay Peak, Inc. regional center and projects. The 52 count complaint charged the defendants with violations of Sec. 17(a)(1)-(3) of the Securities Act and Sections 10(b) and 20(a) of the Exchange Act as well as Regulation 10(b)(5) pursuant to the Exchange Act. The defendants were charged with misappropriating tens of millions of dollars in funds, misrepresenting the Jay Peak projects, falsely projecting nonexistent revenue in their business plans, stealing investors funds and failing to disclose their actions. A preliminary injunction was granted prohibiting Quiros from “participating in the issuance, offer or sale of any securities issued through the EB-5 Immigrant Investor Program.” SEC v. Quiros, et al,, supra (Nov. 21, 2016). On the heels of the SEC suit, individual investors brought class actions against the same defendants and the financial institution holding investor funds (Raymond James) alleging that they breached their fiduciary duty to the investors and engaged in various RICO violations in misusing, commingling and stealing investor funds. Daccache v. Raymond James Fin., No. 16-cv-21575 (S.D. Fla. May 3, 2016). The receiver eventually recouped millions of dollars in the project, repaid certain investors who were conditional residents and obtained court approval to allow others through the new commercial enterprise to redeploy the recovered funds in a new job creating investment. SEC v. Quiros, No. 16-cv-21301-DPG, Dkt. Entry 448 (S.D. Fla. Feb. 6, 2018) [allowing redeployment of funds from AnC Bio Vermont in the Jay Peak receivership] (request made in Doc. 445, Jan. 30, 2018). Suits were also brought against the principals of the company by the State of Vermont. The suit by Vermont was settled for $2.1 million and separately Quiros agreed to settle the SEC action for $81,000,000, $417,000 in cash that was frozen, and a $1 million dollar penalty. The Jay Peak saga continued with the criminal indictment of the principals regarding that part of their scheme designed to defraud investors who invested in AnC Bio. U.S. v. Quiros, et al., Case No. 19-cr-76 (May 21, 2019).
(2) In the Matter of CMB Export, LLC, Patrick Hogan, et al, No. 3-18825 (SEC Sept. 21, 2018) [settlement agreement reached by the SEC with CMB, Patrick Hogan, and 37 affiliated partnerships for $11.585 million for their failing to register EB-5 securities with the SEC while providing transaction-based compensation to “referrers” who solicited foreign investors].
(3) SEC v. Yang, et al, Case No. 15-cv-02387-SVW (C.D. Cal. Jan. 8, 2019) [court entered final judgment of $15.5 million for disgorgement, penalties and interest against a geriatric physician Robert Yang, his office manager and three businesses owned by Yang for operating a scheme to defraud EB-5 investors by claiming money would go to three medical centers when, in fact, it was appropriated for Yang’s personal use].
(4) SEC v. San Francisco Regional Center LLC, et al., Case No. 17-cv-00223-RS (N.D. Cal. Jan. 10, 2019) [court granted SEC motion for disgorgement of $24 million based upon the following: (1) San Francisco Regional Center (SFRC) purchased a warehouse with funds from other EB-5 projects; (2) BHD LLC received funds from comingled investor funds; (3) investor funds were improperly diverted to SFRC for other uses by SFRC and NA3PL, LLC which was the EB-5 limited partnership].
(5) SEC v. A Chicago Convention Ctr., LLC, No. 13CV982 (N.D. Ill. Feb. 6, 2013), the SEC initiated a civil action under 15 USC §§78j(b) & 78q(a)(1)-(3) and 17 CFR §240.10b-5 asserting that a regional center, the LLC that was the new commercial enterprise, and the person who prepared and filed the regional center application and LLC, who was also a managing member of the LLC, violated securities laws by making materially false and fraudulent statements in their offering documents. The SEC asserted that defendants engaged in the sale of securities and therefore came within SEC’s jurisdiction because: (a) investors were instructed to execute a subscription agreement and send it to the defendants in the U.S.; (b) defendants, who were U.S. residents, had sole discretion whether to accept or reject the investor’s agreement; (c) investors were instructed to wire funds to an escrow agent in the U.S.; (d) investors were instructed to execute subscription agreements with the LLC/new commercial enterprise; and (e) sales were not final until approved by the sponsors—residents of the U.S.—and the investors remitted payment to a U.S. based escrow agent. An injunction was obtained by the SEC freezing all assets, and by consent all funds in escrow were returned to the investors. Order Modifying the Court’s Asset Freeze Order (Apr. 19, 2013). A final judgment was entered on Mar. 17, 2014. SEC v. A Chicago Convention Ctr., LLC, No. 13CV982, (N.D. Ill. Mar. 17, 2014), AILA Doc. No. 14032140 [imposing disgorgement of funds with interest but less refundable commissions and fees paid to investors’ representatives overseas, and civil penalties of $3.9 million to be paid by defendants]. The SEC is continuing to bring civil actions. Criminal action subsequently followed and the principal pleaded guilty to securities fraud.
(6) Luca International—SEC v. Luca Int’l Grp., LLC, No. 3:15-CV-03101 (N.D. Cal. July 6, 2015), the SEC filed a complaint (http://bit.ly/Luca-2015-07-06) in multiple counts for securities fraud, unregistered securities offerings, and investment adviser fraud where defendants were making unrealistic promises about returns on investment to lure new investors while the company was sinking and while money was diverted to buy a home and for other impermissible uses]. The matter was settled and the defendants were enjoined from committing any SEC violations in the future and ordered to pay $68.3 million dollars in disgorgement. Case No. 3:15-CV-03101 at Document # 177 (filed July 26, 2016).
(7) Path America—SEC v. Path America, LLC, Civil Action No. 2:15-cv-01350 JLR (W.D. Wash. Aug. 24, 2015), AILA Doc. No. 15082534 [allegations that defendants misappropriated $17.6 million in funds including $2.5 million to purchase a residence in Bellevue, Wash, $200,000 spent at various casinos, and $14.7 million of investor funds for real estate project unrelated to the investors’ project]. In Path America, individual investors intervened and sought successfully the return of their funds through a preliminary injunction. Order Granting Path America Tower Investors’ Motion to Modify Preliminary Injunction (Oct. 1, 2015) Doc. Entry 57-1. The Court thereafter appointed a receiver over the remainder of the property and empowered the receiver to take all necessary legal action to recover assets. Path America, supra Doc. 71-1 (Oct. 9, 2015). The receiver found an experienced regional center operator, EB-5 Group, LLC, the project was restructured and EB-5 Group, LLC as the “white knight” has successfully run it without the presence of the person involved in the fraud who was subsequently sentenced to prison.
(8) Justin Lee—In SEC v. Justin Moongyu Lee, et al., No. CV 14-06865-RGK (Ex) (C.D. Cal. Oct. 28, 2015) the SEC obtained a default judgment for over $8,000,000 against Justin M. Lee, an immigration attorney that the Court determined was involved in a scheme to defraud investors in connection with a Kansas biofuel project. Lee and the companies he controlled according to the default judgment used $3.9 million of investors’ money to finance an unrelated project in the Philippines and another $2.38 million to pay off investors in other offerings.
(9) In SEC v. EB-5 Asset Manager LLC et al., No. 15-cv-62323-JAL (S.D. Fla. Nov. 3, 2015), the SEC brought claims under Sect. 17(a)(1), (a)(2) and (a)(3) of the Securities Act and 10(b), Rule 10b-5(a) and Rule 10b-5(c) of the Exchange Act for fraud, and misrepresentation by untrue statements and omissions against Lily Zhong the asset manager of the project which included inter alia the purchase of a $2.5 million dollar home and 48 foot boat for Zhong as well as monies for Zhong’s daughter’s education. Zhong also allegedly used $5 million of the money she received from investors to collateralize a loan for the purchase of a home for Zhong. The case was settled and final judgments were entered against EB-5 Asset Manager LLC for $10,044, 461.20 for disgorgement and prejudgment interest and against Liy Zhong for $1,000,725.47 for profits gained as a result of the illegal conduct, prejudgment interest, and a civil penalty.
(10) In SEC v. Yang, Kano, et al, No. 15-cv-02387-SVW-KK (C.D. Cal. Nov. 19, 2015), the SEC’s action involving sub-acute care nursing facilities included a claim that the defendants’ misappropriation and misuse of funds which included paying an 18% finder’s fee out of the $500,000 of each investment “rendered the investments ineligible for the EB-5 program, which requires that applicants demonstrate that all of their funds are made available to the business most closely responsible for creating the jobs underlying their EB-5 applications.” Complaint at ¶7, 49. The defendants were also charged with a scheme to defraud the investors because they “provided false and misleading updates regarding the status of the projects, assured investors that the projects are progressing smoothly, and claimed that they are in a position to provide refunds to investors.” ¶57.
(11) In SEC v. San Francisco Regional Center, LLC; Thomas M. Henderson, et al., No. 3:17-cv-00223 (N.D. Cal. Jan. 17, 2017) the SEC brought an action principally aimed at comingling of funds and self-dealing by Henderson. Complaint at ¶¶ 34-50. The complaint alleges personal use of investors’ funds, failure to disclose millions of dollars in payments to agents overseas that came out of the investors’ money and not out of the separate syndication fees as represented, Complaint at ¶¶ 51-54, and failure to maintain distinct businesses as represented in the PPMs and Business Plans of the individual project entities. Complaint at ¶¶ 55-91.
(12) In Ireeco LLC & Ireeco Ltd., SEC Release No. 34-75268, Admin. File No. 3-16647, 2015 WL 4692877 (SEC June 23, 2015), AILA Doc. No. 15062334, the SEC reached a settlement with the respondents to cease-and-desist acting as broker dealers without licenses and submit to further proceedings whether disgorgement of ill-gotten gains and/or civil penalties should be imposed. More recently an ALJ ordered Ireeco to pay approximately $3.2 million in disgorgement of ill-gotten referral fees for soliciting foreign investors. (Mar. 24, 2016).
(13) In SEC v. Hui Feng, No. 15-cv-09420-CBM, 2017 WL 6551107 (C.D. Cal. Aug. 10, 2017 (amended)) the Court granted summary judgment to the SEC on the three counts for fraud and failure to register as broker dealers. The court rejected the claim that EB-5 investments were not securities covered by the Securities and Exchange Act. As a result defendants were required to disgorge profits in the amount of $1,268,000 plus prejudgment interest of $468,012. The Court also imposed $160,000 in civil penalties against Feng and $800,000 against his law firm as requested by the SEC. The court entered a permanent injunction barring Feng and the law firm from involvement in securities.
(14) SEC v. Kameli & Aurora Memory Care, 276 F.Supp.3d 852 (N.D. Ill. 2017). In a rare rebuke to the SEC, the district court declined to issue an injunction or appoint a receiver finding that in virtually all the charges, except one, the SEC failed to prove a securities violation. In most cases the lawyer’s defense that the information was disclosed prevailed. On issue after issue concerning: (i) compensation and conflicts; (2) conflict of interest disclosures; (3) securities trading; (4) land transactions where Kameli profited; and (5) risk of future illegality, the defendants prevailed. The only issue the court believed the SEC prevailed on was Kameli and others use of a line of credit, no longer in effect, that included using some of the funds for personal matters. In a subsequent opinion the court dismissed the SEC’s first amended complaint against Mr. Kameli for failure to plead fraud with particularity under F. R. Civ. Pro. 9(b). U.S. SEC v. Kameli, Case No. 17 CV 4686 (Mar. 14, 2019). In the continuing saga of actions against Kameli, investors brought malpractice and breach of fiduciary duty claims against him. His efforts to have those claims arbitrated were denied. Nasrabadi v. Kameli, _F.Supp.3d___, 2019 WL 3573567 (N.D. Ill. Aug. 6, 2019).
(15) In the Matter of American Modern Green Senior (Houston) LLC, American Modern Green Community (Houston) LLC, and American Modern Green Residential (Houston) LLC, File No. 3-18927 (Dec. 12, 2018) [respondents ordered to pay $51,444,135.40 in disgorgement, prejudgment interest, and a civil monetary penalty where subsidiaries of Beijing-based Modern Land (China) Co. where developers funneled $20.5 million of investor funds into two unrelated projects].
(16) SEC v. Edward Chen, Jen Chen, Home Paradise Investment Center LLC, et al, Case No. 17-cv-06929-PA-JEM (C.D. Cal. Nov. 19, 2018) [enjoining all defendants from their future involvement in the offer or sale of securities and finding them jointly and severally liable to the investors for $2,274,583.78].
(17) Signs of Fraudulent Conduct—To educate the public the SEC Office of Investor Education and Advocacy published an Investor’s Alert detailing what an investor should investigate before entering into an agreement. SEC, Investor Alert: Investment Scams Exploit Immigrant Investor Program (Oct. 9, 2013), reprinted in 18 Bender’s Immigr. Bull. 1261, 1286-90 (Nov. 1, 2013) [warning signs of fraud include promises of becoming an LPR, guaranteed returns and no investment risk, overly consistent high investment returns, and layers of companies run by the same individuals].
3. Activities by Third Parties, Such as Lawyers Taking Finders’ Fees—Under Section 15(b) of the Securities Exchange Act of 1934 a broker-dealer must register with the SEC. A broker is generally defined under Section 3(a)(4)(A) of the Exchange Act as any person engaged in effecting transactions in securities for the account of another. One of the criteria for determining whether one acts as a broker-dealer is if he or she receives compensation based upon the success of the sale. Other criteria may include whether he or she prescreens potential investors and presells the security thereby having a salesman’s stake in the proposed transaction. See e.g., Letter, Jenson, Deputy Chief Counsel, SEC to Mackey (May 17, 2010), AILA Doc. No. 11062863 [finding law firm may be broker-dealer where it introduces clients/contacts to company to provide financing for the company’s operations and obtains a fee from the company even if it is not involved in the negotiations or transaction]. If an immigration attorney accepts fees from the issuer for introducing an investor to the issuer, the attorney may also be acting as a broker-dealer. The SEC and states have found in other contexts the following kinds of activities cause one to be deemed to be acting as a broker-dealer: performing due diligence, negotiating terms of the offering, soliciting the investors, and handling the funds of the investors. If the attorney’s activities are found to be solicitation and marketing sufficient to be deemed to be acting as a broker-dealer, the exemption would no longer be available, and the offering could not be made without registration. If the issuer uses unlicensed broker-dealers, civil and criminal penalties may be imposed. See e.g., Cowburn v. Leventis, 619 S.E.2d 437 (S.C. Ct. App. 2003) [lawyer may be liable for acting as seller of a security]. The SEC has brought enforcement actions against lawyers. SEC, Lawyers Offered EB-5 Investments as Unregistered Brokers (Dec. 14, 2014), www.sec.gov/news/pressrelease/2015-274.html; Matter of Allen Chi, SEC Admin Proceeding No 3-18121 [the respondent was an unlicensed broker dealer ordered to pay approximately $2.6 million dollars in disgorgement and prejudgment interest in action related to SEC v. Robert Yang, et al.]; Matter of Hui Feng & Law Offices of Feng & Associates, P.C., Admin. Pro. File No. 3-18209 (Mar. 12, 2018) [imposing a full associational and penny stock bar against respondents because they defrauded overseas clients by recommending investments without disclosing referral commissions and by failing to tell the regional centers of their failure to disclose].
4. General Dissemination to Third Parties—Dissemination of information to potential investors without a preexisting relationship may only be made in general terms and may not identify a specific investment opportunity.
5. NASD and FINRA Violations—The Financial Industry Regulatory Authority (FINRA) may bring enforcement actions including those against FINRA-registered broker dealers for engaging in outside business activities and participating in private securities transactions without providing prior written notice to, and receiving written approval from the broker-dealer employer. Dep’t of Enforcement v. Jim Jinkook Seol (CRD No. 2876279), Disciplinary Proceeding No. 2014039839101(May 30, 2017) [Seol barred from associating with any FINRA member firm in any capacity as a result of his violating NASD Rule 3040 and FINRA Rules 2010 and 3270 by participating in private securities transactions outside of his employment without providing prior written notice and obtaining approval from his employer Ameriprise].
6. State Registration—State statutes should be examined, as they are not all uniform. Transactions subject to Regulation D exemption are exempt from state securities registrations. Most states require the issuer to file a copy of the Form D and pay a fee. Some states prohibit issuers from paying remuneration in connection with the offering to anyone not a registered broker-dealer or agent. Even if the Regulation D exemption is not available, when an offering is made in a given state, there may be other exemptions from state registration.
S. Litigation Concerning the Investor Program—A number of cases have arisen as a result of Matter of Izummi and its progeny and the General Counsel’s December 1997 memorandum.
1. Standing—In V. Real Estate Grp., Inc. v. USCIS, 85 F.Supp.3d 1200 (D. Nev. 2015), the court found that a franchisor, new commercial enterprises (NCE) based upon the franchisor’s business plan, and the individual investors had standing to contest the revocation of the investors’ I-526 approvals. The court noted that both V. Real Estate Group, Inc. and the NCEs alleged harm to themselves that was greater than simply financial loss. The court however dismissed the plaintiffs’ claims for intentional or negligent interference with economic advantage and intentional interference with business relations citing sovereign immunity, but allowed their declaratory judgment action to proceed under the APA.
2. Failure to Approve I-526—In R.L. Inv. Ltd. Partners & Wanxuan Zou v. INS, 86 F.Supp.2d 1014 (D.C. Hawaii 2000), aff’d, 273 F.3d 874 (9th Cir. 2001), the district court granted summary judgment for the government and denied plaintiffs’ challenge to the denial of an I-526 petition that was virtually identical to others approved before Izummi on APA (notice and comment and arbitrary and capricious conduct) and estoppel grounds. In Spencer Enterprises, Inc. v. U.S., 345 F.3d 683 (9th Cir. 2003), the court found jurisdiction, notwithstanding INA §242(a)(2)(B)(ii), to review the denial of an I-526 petition, but concluded that substantial evidence supported the AAO’s determination that the investor’s business plan was not credible enough to demonstrate the need for 10 full-time workers. See also Siqing Wang v. USCIS, 306 F.Supp.3d 1 (D.D.C. 2018) [the court found that there was jurisdiction over the denied I-526 because USCIS’ alleged “revocation,” which would have barred review under §1155, was in fact a denial as there was no wording in the I-526 decision that it was a revocation].
3. Failure to Approve I-829—In Chang v. U.S., 327 F.3d 911 (9th Cir. 2003) the court determined under the retroactivity analysis in Montgomery Ward v. FTC, 691 F.2d 1322 (9th Cir. 1982) that INS may not retroactively apply Izummi and its progeny to pending I-829 petitions. The court also ruled that legislation permitting I-829 petitioners to submit new petitions where post-Izummi standards would apply did not moot plaintiff’s retroactivity claim. See also Arnott v. USCIS, 290 F.R.D. 579 (C.D. Cal. 2012) [certified class of EB-5 investors challenging the retroactive application of the material change doctrine to I-829 petitioners]. But see Doe v. McAleenan, 929 F.3d 478 (7th Cir. 2019) [upheld denial in EB-5 I-829 context under the “at risk” criteria where investor could not rebut significant concerns that the purchase of land for an assisted living facility was “flipped” and purchased for a significant amount above its selling price to a third party hours earlier].
4. SEC Enforcement Actions—See ¶ R.2.1, supra.
5. Criminal Proceedings U.S. v. O’Connor, 158 F.Supp.2d 697 (E.D. Va. 2001) [Criminal proceedings were successfully brought against the organizers of the Interbank investment program on grounds of immigration and wire fraud and money laundering]; U.S. v. Sethi, No. 14-cr-00485 (N.D. Ill. Aug. 27, 2014) [10 count indictment arising out of SEC case in Chicago Convention Center and Sethi pleaded guilty to one count of wire fraud].
6. Qui Tam Actions—The U.S. government has also brought qui tam actions seeking penalties and damages where a party, in the government’s view, engaged in a “systematic practice of submitting false statements to the United States, state of Florida and local governmental entities in order to obtain public grants and funds, as well as EB-5 financing…” U.S. ex rel. Emma Tirella v. Klausner Lumber One, LLC, No. 16-cv-203-J-32JBT (M.D. Fla. Mar. 2, 2016) [alleged false statements to meet job creation requirements to obtain public funding and EB-5 financing].
7. Legal Malpractice—Where plaintiff’s lawyer failed to disclose his longstanding business relationship with the owners of the corporation his client was investing in and failed to disclose to the client the small chance of success and substantial requirements under the EB-5 program prior to plaintiff’s investment, a cause of action could be maintained for legal malpractice. Serova v. Teplen, No. 05 CIV. 6748 (HB) (S.D.N.Y. Feb. 16, 2006) [retaining legal malpractice claim but dismissing claims for breach of fiduciary duty, securities fraud and other causes of action]. A lawyer who fails to disclose to his client that the investment arrangement was altered breached his fiduciary duty. Onyung & Law Offices of Yuen & Associates, P.C. v. Onyung, No. 01-10-00519-CV (C.A. 1st Dist. Tex. June 6, 2013) [lawyer who believed he was only representing husband but in fact had wife sign retainer agreement breached his fiduciary duty to wife when he changed the EB-5 investment arrangement and did not disclose it to the wife].
8. Fraud Claims Brought by Investors—Plaintiff Investors who believe they have been defrauded have begun to bring litigation against the new commercial enterprises and their agents and representatives that took their investment money and administrative fees. See e.g., Chen v. California Inv. Immigr. Fund, LLC, No. CV 17-7149-MWF (RAOx) (CD Cal. Feb. 27, 2018) [judgment for $26.7 million dollars in special and punitive damages for fraud against company, lawyer and law group who were jointly and severally liable]; Xia v. California Inv. Immigr. Fund, LLC, No. BC-661-793 (Cal Super. Ct, LA May 18, 2017) [complaint for intentional and negligent misrepresentation, fraudulent concealment, breach of implied covenant and breach of fiduciary duty, intentional and negligent infliction of emotional distress, breach of written agreement, legal malpractice, unjust enrichment and common count for money had and received]; Miao v. Preferred Restaurant Brands, Inc., No. 4:15-cv-05531 (N.D. Cal. Dec. 3, 2015) [complaint for false promise, misrepresentation, investment fraud, breach of fiduciary duty, intentional infliction of emotional distress and unfair competition, and rescission]; Zhang v. Americana Franchise Reg’l Ctr., LLC, No.15-cv-09583 (C.D. Cal. Dec. 10, 2015) [disgruntled investor sued in 8 counts including unauthorized practice of law for NY barred attorney practicing in California and breach of fiduciary duty, which includes punitive damages, against his counsel who also represented the regional center without obtaining a waiver]. Lawyers in the Zhang case were eventually granted summary judgment, supra (Oct. 27, 2016 order).
9. Whistleblowing—West v. Seldon Techs., Inc., No. 325-5-13 W-REV (Vt. Super. Ct., Windsor Unit) [$400,000 judgment for compensatory damages where person was fired after complaining that Seldon illegally used EB-5 funds to finance taxes related to an officer’s purchase of stock and to fund the officer’s deferred income allocation].
10. Removal of Manager of the NCE—In A&J Capital, Inc. v. Law Office of Krug and LA Metropolis Condo I, LLC, ___ A.3d ___, C.A. No. 2018-0240-JRS (Del. Jan. 29, 2019), a declaratory judgment action was brought by A&J Capital, one of the managers of an NCE who was removed allegedly by a majority of the investors in a project involving Greenland, a major Chinese developer in a project in California. Although a good deal of the testimony at trial was whether the ballots to remove A&J Capital, Inc. were authentic, the court resolved the case in A&J’s favor on the basis that it could only be discharged for cause and no such cause existed.
T. Special Legislation for Certain Investors with CR Status or Approved I-526 Petitions
The 21st Century DOJ Appropriations Authorization Act provides benefits, including the right to reapply for permanent residency to investors who: (1) filed their I-526 petitions and had them approved by the INS between Jan. 1, 1995 and Aug. 31, 1998; (2) obtained CR status; and (3) before Nov. 2, 2002 (the date of enactment), filed an I-829 to remove conditions on their CR status. If they qualify and their I-829 was denied, they must have filed a motion to reopen the I-829 within 60 days of Nov. 2, 2002. If they have a final order of removal, their cases shall be reopened as long as they file a motion to reopen within that time period. If they are outside the U.S., USCIS must parole them back into the country. Unless there was a material misrepresentation, USCIS must reopen and decide whether the investor met the 10–job requirement and the financial investment requirement. USCIS must make the same determinations for those I-829s that are pending if the investor had an approved I-526 between Jan. 1, 1995 and Aug. 31, 1998. The investor has a choice as to which date USCIS will use to determine the jobs/investment requirements: (1) the date the I-829 was filed; (2) 6 months after the I-829 was filed; or (3) the date USCIS makes its determination. If the I-829 is denied because of a material misrepresentation, jobs, or investment, the investor is given an opportunity to rebut the decision and may thereafter appeal to the BIA and then the circuit court under INA §242(a)(1). If the application is denied because of jobs/investment, the investor is also given an additional 2 years to file a new investment. The investor will be credited with the jobs preserved and the investment made on the first investment and new I-829. The “new” investment could have occurred before or after the determination on the first I-829. If the first or second I-829 is denied, the person may also seek review before an IJ in removal proceedings. Children of investors will continue to be treated as such if they were under 21 at time they were granted CR status.Similar procedures are established for EB-5 investors: (1) who had I-526 petitions that were approved between Jan. 1, 1995 and Aug. 31, 1998; (2) who timely filed for an IV or AOS before Nov. 2, 2002; (3) who never became CRs; and (4) who are otherwise admissible. If the I-526 petition was revoked because of failure to comply with the capital investment requirement, it is automatically reinstated. If the AOS or IV is no longer pending because the investor departed the U.S. without advance parole or it was determined that the investor did not qualify because of the capital investment requirement, the case is automatically reopened unless there was a material misrepresentation. If the investor applied for AOS but is now overseas, USCIS will establish a procedure to parole the investor into the U.S. The applicant must within 2 years file an I-829 and will be given credit for funds invested and jobs created or saved prior to and after the date of enactment. The investor may measure his compliance with the jobs/investment requirements by the date the AOS application was filed or the date USCIS adjudicates the I-829 petition.
Proposed regulations were promulgated, but until final regulations are approved, USCIS may not deny an I-829, AOS, or proceed with or place someone in removal proceedings.
The law also defined full-time employment as a position requiring 35 hours per week, even if the employees (such as those in the construction industry) are interchangeable. The requirement that an investor “establish” a new commercial enterprise was eliminated and replaced with a requirement that a person “invest” in a commercial enterprise. The legislation also specifically recognized limited partnerships as commercial enterprises. The legislation liberalized requirements of the Regional Center Program by allowing for the approval of such programs based upon “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.” It also changed the law to clarify that increased exports is not necessarily a requirement to approve a pilot program.
|pp. 1487–88 (Ch. 7, ¶ VI.K.6)||EB-5 conditional resident
Adjustment of status
In the EB-5 community there has been a good deal of confusion regarding whether a conditional resident (CR) may readjust another way. In particular, some readers were mistakenly under the belief that you could adjust from one approved I-526 to the next, even if you were already a CR, as a result of a now-removed section of the AFM 22.4(c). This rewrite of paragraph K.6 clarifies the issue:
Adjustment of Status to LPR from CR Obtained through Different Immigrant Category or through Different I-526 Approval—USCIS regulation at 8 CFR §245.1(c)(5) would prohibit those in investor-based (or family-based) CR status from obtaining LPR status through a second AOS directly from that CR status if the second AOS application is based upon a second immigrant petition (e.g., a CR investor marries a USC and seeks to AOS on that basis, or an investor CR seeks to AOS based upon a second I-526 petition). However, applicable law for marriage-based CR status allows AOS through a separate marriage upon withdrawal of CR status. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991) [marriage to new USC]. It may be possible therefore to withdraw CR status and file a new AOS application if the second AOS is based upon an immediate relative. The issue is more complex when seeking AOS based upon an employment category (including a second approved I-526) given the bars to AOS under INA §245(c)(2) and INA §245(c)(7) permitting employment-based AOS only from an NIV status. One way to avoid all of these obstacles is simply to obtain an I-407 abroad and file for an immigrant visa through consular processing.
|p. 1562 (Ch. 7, ¶ IX.M)||PERM
Replace paragraph M with:
Withdrawal—An employer may withdraw a certified PERM LC at any time and may do so through the Permanent Online system, by email or mail. ETA, FAQs, Round 14: Withdrawals, Requests for Redetermination or BALCA Review and Pay Differentials (May 13, 2019), AILA Doc. No. 19051541. An employer making a written request by mail must send it to the Atlanta National Processing Center. Id. at Q.2. If by email it should be sent to PLC.Atlanta@dol.gov. All requests by mail or email should include the case number, employer’s name and FEIN number, foreign worker’s name and the name and title of the person requesting withdrawal. A pending PERM LC application may also be withdrawn through the Permanent Online System, or if filed by mail or unable to withdraw electronically, through email or by letter. Id. at 1. DOL is not obligated to accepted the withdrawal of a pending application and if the application is withdrawn after an audit letter is received, the employer must still comply with the audit. Id. at 2. A new application may not be filed after withdrawal until the PERM system shows the status changed from “in process” to “withdrawn” or “denied” or until the employer receives confirmation by mail or e-mail. Id. at 3.
|p. 1570 (Ch. 7, ¶ IX.N.2.b.10)||PERM
Paragraph (10) should read as follows:
Part-Time Employment—Boodell & Domanskis, LLC, 2012-PER-1275 (May 11, 2016) [CO denial reversed where employer demonstrated he had listed the position as a one year of full or part-time experience and prospective employee had part-time experience]; I Grand Express, 2014-PER-783 (Jan. 26, 2018) [CO ultimately counted part time work toward 24 months experience in Head Graphic Designer position where employer argued that in graphic design employees often work as freelancers or contractors and therefore working 25 hours per week may be considered full time].
|p. 1672 (Ch. 8, ¶ II)||Good moral character
Add after paragraph A:
Attorney General Created GMC Criteria—In Matter of Castillo-Perez, 27 I&N Dec. 664 (AG 2019), the AG created his own criteria for good moral character and determined that a person seeking cancellation of removal as a non-LPR is not a person of GMC if he has two DUI convictions during the 10-year period. Although the AG described it as a rebuttable presumption and there may be some “aberration” that would explain two or more DUIs, he held that rehabilitative efforts during the 10-year period does not affect the presumption because the person needed to have GMC throughout the 10 years. He also suggested to IJs that in light of the two DUIs the person may lack GMC as a “habitual drunkard,” 27 I&N Dec. at 270 n.2, and, in any event, the IJ could deny the case as a matter of discretion putting aside the GMC issue. Id. at 270-71.
|p. 1702 (Ch. 8)||Continued presence
Insert new section XIII:
XIII. CONTINUED PRESENCE
A. Generally—TVPA §107(c)(3), 22 USC §7105(c)(3). Continued Presence (CP) is a temporary immigration status provided to individuals identified by law enforcement as victims of human trafficking, which is broadly defined to include both sex trafficking and labor trafficking. CP allows victims of human trafficking to remain in the US temporarily during the ongoing investigation into the crimes committed against them.
B. Procedures—Federal law enforcement officials primarily from ICE, the FBI, and federal prosecutors at the US Attorney’s Offices are authorized to submit CP applications. They may also submit applications on behalf of state or local law enforcement where the victimization meets the federal definition of trafficking under 22 USC §7102. Applications should be submitted “immediately upon identification of a victim of human trafficking.” DHS Website, Continued Presence Pamphlet. The applications should be submitted whether or not the victim has cooperated and even if the victim has not suffered a violent form of human trafficking. Id. The application may be approved even with an uncorroborated victim statement. Id. CP is not dependent upon a case being accepted for prosecution or even human trafficking charges being brought. Id. CP is granted in one-year increments and may be renewed in one-year increments. All applications are submitted to ICE Law Enforcement Parole Branch (LEPB), which has the sole authority to approve or deny CP applications. The results are sent to the appropriate federal submitting official and if approved the approval is also sent to HHS and the VSC. HHS thereafter will issue a letter authorizing the victim to receive federal and state benefits. The VSC will issue an I-94 and an EAD. Victims may also be granted authorization to have their family members enter the U.S. to join them. CP may be revoked if it is later determined the person is not a victim or is no longer a potential witness.
|p. 1946-47 (Ch. 10, ¶ V.H.1.b.)||Judicial review
Add to paragraph 1.b.:
Zuniga Romero v. Barr, __F.3d___, 2019 WL 4065596 (4th Cir. 2019) [rejecting Matter of Castro-Tum and relying on Kisor, the Court found that the regulations conferring general authority to administratively close cases under 8 CFR §§1003.10(b), 1003.1(d)(1)(ii) were not ambiguous and even if they were the AG’s decision is not entitled to deference under Auer or Skidmore because it constituted “unfair surprise”];
|p. 2163 (Ch. 13, ¶ II.A.3.d)||Naturalization
The first full paragraph on page 2163 (starting on the 7th line) should read as follows:
Reapply After a Break in Residency—If there is a break in residency due to absence, a person may reapply after 4 years and one day. If the person is able to naturalize after 3 years but had a break due to absence, she may reapply after 2 years and one day. 8 CFR §316.5(c)(1)(ii); 12 USCIS-PM, Pt. D, Ch. 3 ¶C.5
|p. 2167 (Ch. 13, ¶ II.A.4.b(2))||Naturalization
Admission of crime
Add to the discussion of admission vs. conviction:
A person who admits the “possession, manufacture or production, or distribution or dispensing of marijuana” even if permitted under state law may lack GMC if the admission constitutes a federal offense. USCIS Policy Alert, PA-2019-02, Controlled Substance-Related Activity and Good Moral Character Determinations (Apr. 19, 2019), AILA Doc. No. 19041930; 12 USCIS-PM, Pt. F, Ch. 5 ¶C 2 [noting that even if the applicant does not admit facts of a marijuana-related offense sufficient under Matter of K, 7 I&N Dec. 594 (BIA 1957) to bar GMC, the applicant “may be unable to meet the burden of proof to show that he or she has not committed such an offense”].
In Pereira v. Sessions, 138 S.Ct. 2105, 2110 (2018), the Supreme Court determined that an NTA that fails to include the time and place of the removal hearing “is not a ‘notice to appear’ under section 1229(a),” and therefore cannot be the basis to trigger the stop-time rule. The Pereira decision has significant implications not only for the stop-time rule but if the NTA did not properly contain the date and time of the hearing and possibly other information required in §239(a), it could affect: (1) when subject-matter jurisdiction vests with the immigration court under 8 CFR §1003.14; Shogunle v. Holder, 366 Fed. Appx. 332 (4th Cir. 2009); (2) the validity of in absentia orders; (3) the ability to seek post conclusion VD; (4) inadmissibility under INA §§212(a)(9)(A), (a)(9)(C); and (5) immigration court jurisdiction for asylum/withholding when NTA is filed pursuant to 8 CFR §§208.2(b), 1208.2(b). See also Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990), for interpretation under previous regulations. Venue lies where NTA filed. 8 CFR §1003.20.
Hussam F. v. Sessions, 897 F.3d 707 (6th Cir. 2018). In the context of a review of the denial of asylum and an INA §237(a)(1)(H) waiver, the court made a number of important legal decisions. First, it determined it had the authority to review the BIA’s denial of a discretionary INA 237(a)(1)(H) waiver despite INA §242(a)(2)(B)(ii) because it was reviewing the BIA’s failure to follow the clearly erroneous rule. Second, it found that the BIA’s decision that Hussam had resettled in a third country could not be supported where the applicant contested it and the government waived the argument by not addressing it on appeal. Third, it held that the BIA erred in denying asylum where it ignored Pula and Kasinga and found that an applicant with a strong asylum claim should be denied on discretionary grounds for failure to disclose a Syrian passport that was fraudulently obtained. Fourth, the court relied on the final paragraph of INA §237(a)(1)(H) and determining that even if AOS was a second entry, granting the waiver for that entry would, on a derivative basis also waive the misrepresentation of the first entry. The court reversed the denial of asylum and INA §237(a)(1)(H) and remanded to the BIA.
|Asylum: Transit Bar||
Third-Country Transit Bar to Asylum—Any applicant who “enters, attempts to enter, or arrives in the United States across the southern land border” is ineligible for asylum in the United States if she transited through a country other than her country of citizenship, nationality or last habitual residence unless she applied for protection from persecution or torture in “at least one country” outside of her own country that she transited through en route to the United States. 8 CFR §§208.13(c)(4); 1208.13(c)(4). The provision applies to persons seeking entry on or after July 14, 2019. Withholding and CAT relief are not barred. Asylum is also not barred if the person: (1) applied in the third country and received a “final judgment denying the alien protection in such country;” (2) is a “victim of a severe form of trafficking” defined in 8 CFR §214.11; or (3) the transit countries were not parties to the UN Convention and Protocol Relating to the Status of Refugees. 8 CFR §§208.13(c)(4)(i)-(iii); 1208.13(c)(4)(i)-(iii). The determination that a person is or is not a victim of trafficking is not binding on subsequent determinations for a T or U visa. 8 CFR §§208.13(c)(5); 1208.13(c)(5). If an applicant is subject to the third-country bar rule, she will receive a negative credible fear determination as to asylum but would be screened under a “reasonable fear” standard for withholding and CAT. 84 FR 33829, 33837-88 (July 16, 2019). If it is determined that she has a “reasonable fear” claim she would be placed in an INA §240 proceeding. 8 CFR §208.30(e)(5)(iii). She would also be able to raise in that proceeding whether she was improperly characterized as having a third-country transit bar. If it is determined by the asylum officer that she did not have a “reasonable fear,” she would still be subject to an IJ review of the denial. 84 FR 33829, 33837-88 (July 16, 2019). But she would have to prove at that hearing before the IJ that she had a “reasonable fear,” not a “credible fear.” 8 CFR §§208.30(e)(5)(iii); 1208.30(g)(ii). Prior to reviewing the negative “reasonable fear” determination by the asylum officer, the IJ will first review whether the applicant is subject to the third-country transit bar. 8 CFR §1003.42(d)(3). See also McHenry, Director, EOIR, PM 19-12 Guidelines Regarding New Regulations Governing Asylum and Protection Claims (July 16, 2019). The third-country transit regulatory bar, however, has been enjoined. East Bay Sanctuary Covenant v. Barr, Case No.19-cv-04073-JST (N.D. Cal. July 24, 2019), AILA Doc. No. 19071800 [finding that Congress set the standards for third-country processing and the rule ignores those requirements; the rule failed to comply with notice and comment, and the decision to promulgate it was arbitrary and capricious].
Cite as AILA Doc. No. 19080202.