position paper presented to ipo on rc termination

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 1 OF 15 Submitted by: Joseph P. Whalen 238 Ontario Street, No. 6 Buffalo, NY 14207 (716) 604-4322 (cell) (716) 768-6506 (land-line) [email protected] IMMIGRANT INVESTOR PROGRAM OFFICE (IPO) U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS) DEPARTMENT OF HOMELAND SECURITY (DHS) 131 M Street NE 3rd Floor, Mailstop 2235 Washington, DC 20529 POSITION PAPER ON CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION I. What are the Primary Purposes of an EB-5 Regional Center? Under Section 610(a) of the Appropriations Act of 1993, an EB-5 Regional Center is to principally serve as a conduit for concentrating pooled investment in defined economic zones.The Regional Center Model offers immigrant investors already-definedinvestment opportunities, thereby reducing each investor's responsibility to identify acceptable investment vehicles. In a broader sense, the Regional Center is intended to support the promotion of economic growth” on a regional (or national) scale; potentially including: increased export sales; improved regional productivity, job creation, and/or increased domestic capital-investment. Collectively, the aforementioned attributes describe what was originally known as the Immigrant Investor Pilot Program”. Congress officially dropped the word “Pilot” from the legislation when it extended the Program in 2012, but did not make the Program permanent nor incorporate it into the Immigration and Nationality Act (INA). Effectively, the EB-5 Regional Center Programremains in Pilot” mode. See generally: Matter of A-L-V- LLC, ID# 15160 (AAO June 20, 2016); 8 C.F.R. § 204.6 (m) (3); and Pub. L. 102395, title VI, § 610, Oct. 6, 1992, 106 Stat. 1874, (Appropriations Act of 1993), as amended. [8 U.S.C. § 1153 Note: Immigration Program].

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Page 1: Position Paper Presented to IPO on RC TERMINATION

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 1 OF 15

Submitted by:

Joseph P. Whalen

238 Ontario Street, No. 6

Buffalo, NY 14207

(716) 604-4322 (cell)

(716) 768-6506 (land-line)

[email protected]

IMMIGRANT INVESTOR PROGRAM OFFICE (IPO)

U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)

DEPARTMENT OF HOMELAND SECURITY (DHS)

131 M Street NE

3rd Floor, Mailstop 2235

Washington, DC 20529

POSITION PAPER

ON CONSIDERATIONS FOR TERMINATION

OF REGIONAL CENTER DESIGNATION

I. What are the Primary Purposes of an EB-5 Regional Center?

Under Section 610(a) of the Appropriations Act of 1993, an EB-5 Regional Center is

to principally serve as a conduit for “concentrating pooled investment in defined economic

zones.” The Regional Center Model offers immigrant investors “already-defined”

investment opportunities, thereby reducing each investor's responsibility to identify

acceptable investment vehicles. In a broader sense, the Regional Center is intended to

support “the promotion of economic growth” on a regional (or national) scale; potentially

including: increased export sales; improved regional productivity, job creation, and/or

increased domestic capital-investment. Collectively, the aforementioned attributes describe

what was originally known as the “Immigrant Investor Pilot Program”. Congress officially

dropped the word “Pilot” from the legislation when it extended the Program in 2012, but

did not make the Program permanent nor incorporate it into the Immigration and

Nationality Act (INA). Effectively, the “EB-5 Regional Center Program” remains in

“Pilot” mode. See generally: Matter of A-L-V- LLC, ID# 15160 (AAO June 20, 2016); 8

C.F.R. § 204.6 (m) (3); and Pub. L. 102–395, title VI, § 610, Oct. 6, 1992, 106 Stat. 1874,

(Appropriations Act of 1993), as amended. [8 U.S.C. § 1153 Note: Immigration Program].

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 2 OF 15

Creating an EB-5 suitable and compliant offering is a great beginning but it is only one

of the purposes of a Regional Center. In order to be able to fulfill its continuing

responsibilities and future obligations, a Regional Center must have in place a careful plan

for oversight. The Regional Center must track data and collect evidence to support its EB-5

investors’ I-829 petitions and its own I-924A annual report forms. It is through the

information reported on the I-924A forms that USCIS begins its inquiry into the question

of whether or not the Regional Center is promoting economic growth. The surest indicator

of whether or not a Regional Center is meeting its basic obligation is the rate at which its

investors receive approval of their I-829 petitions and have their conditions lifted from

status. I find this to be the best indicator because in order to have conditions lifted, the

evidence supporting the I-829 must show full and proper expenditure of the minimum

investment amount and creation or preservation of the minimum of ten (10) permanent full-

time jobs.

USCIS inherited INS’ definition of a “Regional Center” which is found at:

8 C.F.R. § 204.6(e) Definitions. ……

“Regional center means 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.”

The above regulatory definition largely parrots the statute which, in my opinion,

means that this definition is unworthy of Chevron1 deference. It is unworthy because it fails

to provide any useful interpretive value so as to inform applicants, or guide adjudicators. See

Fogo de Chao (Holdings) Inc. v. U.S. Dep 't of Homeland Sec., 769 F. 3d 1127, 1135 (D.C.

Cir. 2014) (…No deference is due, however, to an agency’s interpretation of its own

1 Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) is the Supreme Court case which describes a

methodology for evaluating agency interpretations, especially where there is ambiguity in the statute, and

declares generally that the interpretations made by an agency entrusted with enforcing a particular statute are

entitled to deference if the interpretation is reasonable.

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 3 OF 15

regulation when, “instead of using its expertise and experience to formulate a regulation, it

has elected merely to paraphrase the statutory language.” In re Polar Bear Endangered

Species Act Listing & Section 4(d) Rule Litig., 709 F.3d 1, 18 (D.C. Cir. 2013) (quoting

Gonzales v. Oregon, 546 U.S. 243, 257 (2006)).)”

Compare the regulatory definition above to the statutory language below. The bulk of

the regulatory definition was lifted from § 610(a) except INS changed one word, a very

important word. INS changed the word “or” to “and” which by itself, is enough for any

District Court Judge to declare the definition ultra vires, beyond statutory authority. That

small but significant change added a burden “above and beyond” the statutory requirement.

It changed various alternatives into “all inclusive” components. The question is then

whether a requirement imposed in the relevant regulation crosses the line from permissible

statutory interpretation by the responsible agency to ultra vires regulation contrary to the

clear intent of Congress. See Shalom Pentecostal Church v. U.S. Dep 't of Homeland Sec.,

783 F.3d 156, 165-67 (3d Cir. 20 15).

II. Section 610(a) Factors

This paragraph of § 610, provides the closest thing to a statutory definition to be

found. It also provides the clearest statement of a Regional Center’s, and the Program’s

purpose.

“….. Such program shall involve a regional center in the United States,

designated by the Secretary of Homeland Security on the basis of a

general proposal, for the promotion of economic growth, including

increased export sales, improved regional productivity, job creation, or

increased domestic capital investment. A regional center shall have

jurisdiction over a limited geographic area, which shall be described in the

proposal and consistent with the purpose of concentrating pooled

investment in defined economic zones. The establishment of a regional

center may be based on 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

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 4 OF 15

such capital investments, and the other positive economic effects such

capital investments will have.”

The function of the Regional Center as it relates to the purpose of the overall EB-5

Regional Center Program2 is larger than a single development project. However, with that

said, there has to be a starting point which means that there must be an initial pooled

investment for the Regional Center to begin to have any effect upon the defined economic

zone. In other words, the Regional Center provides the mechanisms through which this

Investment Immigration “Program” will achieve its goal of promoting economic growth

within its limited geographic area. The primary measure of success for this Program is

employment creation. Employment creation is, of course, the title of the EB-5 visa category

as found in the INA.

III. Section 610(c) Factors

This paragraph of § 610, modifies the mechanisms by which the EB-5 investors may

demonstrate job creation. More precisely, it gives what little statutory guidance there is as

to the factors to be considered when estimating indirect job creation.

“In determining compliance with section 203(b)(5)(A)(iii)[(ii)] of the

Immigration and Nationality Act [8 U.S.C. 1153(b)(5)(A)(iii)[(ii)]], and

notwithstanding the requirements of 8 CFR 204.6, the Secretary of

Homeland Security 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

2 For practical purposes of this discussion and to aid the reader’s understanding, the program under

examination is labelled simply as “Immigration Program” in the United States Code, but in the 2012

program extension, Congress referred to an “EB-5 Regional Center Program”. Colloquially, this program is

called the “Immigration Investment Program”, “Investment Immigration Program”, or “Immigrant Investor

Program”.

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 5 OF 15

generated from increased exports, improved regional productivity, job

creation, or increased domestic capital investment resulting from the

program.”

While Congress was originally interested in emphasizing “exports”, it has since

backed away from that stance. Various indirect jobs resulting from the program may now

be attributed to various alternatives factors and still count towards the individual investor’s

eligibility requirement for the lifting of conditions from lawful resident status. For

example, the input category of “revenues generated” often used in economic models

predicting employment creation, can come from any of the enumerated alternatives:

A. increased exports,

B. improved regional productivity,

C. [direct] job creation, or

D. increased domestic capital investment.

These data points, and others, are used as acceptable inputs in models, in order to generate

economic impact analyses, all of which have been previously examined by USCIS and

found to be “reasonable methodologies” for estimating indirect job creation, and “other

positive economic effects” mentioned in § 610(a), above.

A. Sec. 203(b)(5)(A)(ii) [8 U.S.C. § 1153(b)(5)(A)(ii)]

The employment-based, fifth-preference immigrant visa classification, or as

more commonly, and simply, known as the “EB-5” visa is defined at INA

§203(b)(5) [8 U.S.C. §1153(b)(5)]. This visa classification was created by

Congress in the Immigration Act of 1990 (IMMACT90) and is a permanent part

of the INA. This visa classification has no “sunset date” unlike the EB-5

Regional Center Program which currently does have a “sunset date”. This

statutorily defined classification is entitled “employment creation”, and requires,

inter alia, the investment of a defined amount of capital that results in the

creation of “… full-time employment for not fewer than 10 United States citizens

or [selected classes of] aliens lawfully admitted…” and work authorized.

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 6 OF 15

B. Notwithstanding the Requirements of 8 CFR § 204.6

Congress sought to soften those parts of the original regulations,

promulgated by INS in response to the Immigration Act of 1990 (IMMACT90),

that they thought were too harsh and restrictive. Any part of the present EB-5

regulations relating directly to Regional Centers was written in response to

Congressional intent behind the program created through the Appropriations Act

of 1993, so none of those Regional Centers-specific regulations can be

challenged under this clause.

C. 8 CFR § 204.6(m)(6) & 5 U.S.C. § 551 (8)-(11)

The regulation at 8 C.F.R. § 204.6(m)(6) relating to the termination of

regional center status states:

To ensure that regional centers continue to meet the requirements of

section 610(a) of the Appropriations Act, a regional center must provide

USCIS with updated information to demonstrate the regional center is

continuing to promote economic growth, improved regional

productivity, job creation, or increased domestic capital investment in

the approved geographic area. Such information must be submitted to

USCIS on an annual basis, on a cumulative basis, and/or as otherwise

requested by USCIS, using a form designated for this purpose. USCIS

will issue a notice of intent to terminate the participation of a regional

center in the pilot program if a regional center fails to submit the

required information or upon a determination that the regional center no

longer serves the purpose of promoting economic growth, including

increased export sales, improved regional productivity, job creation, and

increased domestic capital investment.

Additional authority to check up on a Regional Center’s activities and to

determine if it is living up to its end of the bargain derives from a generally

applicable statutory provision of the Administrative Procedures Act (APA).

When viewed realistically, USCIS Designation of a Regional Center is a form of

licensure. Since INS failed to affirmatively define Regional Center designation

as licensure from the start, this realization came about after-the-fact, and after the

rulemaking concluded, and for that matter, for nearly two decades thereafter.

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 7 OF 15

As a refresher, 5 U.S.C. § 551 is the definitions section of the APA and

states, in pertinent part, as follows:

“(8) "license" includes the whole or a part of an agency permit,

certificate, approval, registration, charter, membership, statutory

exemption or other form of permission;

(9) "licensing" includes agency process respecting the grant, renewal,

denial, revocation, suspension, annulment, withdrawal, limitation,

amendment, modification, or conditioning of a license;

(10) "sanction" includes the whole or a part of an agency-

(A) prohibition, requirement, limitation, or other condition affecting

the freedom of a person;

(B) withholding of relief;

(C) imposition of penalty or fine;

(D) destruction, taking, seizure, or withholding of property;

(E) assessment of damages, reimbursement, restitution, compensation,

costs, charges, or fees;

(F) requirement, revocation, or suspension of a license; or

(G) taking other compulsory or restrictive action;

(11) "relief" includes the whole or a part of an agency-

(A) grant of money, assistance, license, authority, exemption,

exception, privilege, or remedy;

(B) recognition of a claim, right, immunity, privilege, exemption, or

exception; or

(C) taking of other action on the application or petition of, and

beneficial to, a person;” …..

USCIS needs to incorporate some of the guiding principles found in the

APA, into new EB-5 regulations. Licensing is the most critical concept needed in

new regulations.

D. INA § 216A [8 U.S.C. § 1186b]

This statutory provision imposes conditions upon the status of EB-5

entrepreneurs or investors and their dependent family members. The same

section also provides the rules for lifting those conditions. This is therefore, a

very necessary consideration when judging the success and viability of a

Regional Center. Failure to deliver on the final prize does not bode well for the

continued participation of a Regional Center in the Program.

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 8 OF 15

IV. Termination For Cause

Beyond termination for the technical violation of a Regional Center’s failure to timely

file an annual reporting form, Regional Center Designation may be terminated for cause.

The general reason for such termination is that “the regional center no longer serves the

purpose of promoting economic growth” but it is that phrase that causes debate. How does

the agency determine when “the regional center no longer serves the purpose of

promoting economic growth”? Maybe the question should be “How should the agency

determine when “the regional center no longer serves the purpose of promoting economic

growth”?” We are not left completely in the dark on this question, but the factors listed in

the statute, and merely parroted in the regulations, need further exploration and adequate

explanation.

Pooled investments made via Regional Centers are, in part, intended to aid alien

investors obtain EB-5 visas. The geographic regions wherein Regional Centers sponsor

those pooled investments, are intended to reap a variety of benefits. Congress expressed its

hope in the statute that these large capital expenditures, i.e. pooled investments, would

help the region by promoting economic growth through, and as evidenced by:

a. new revenues being generated,

b. (sometimes) increased export sales,

c. improved regional productivity,

d. job creation (direct, indirect, induced), and/or

e. increased domestic capital investment.

The above factors, and others, provide potential metrics or data points for measuring

results. Legacy INS listed more factors in the regulations, that it hoped would indicate that

a Regional Center has had, is having, or will have, a positive impact on the regional or

national economy in a general sense. Legacy INS envisioned that “other positive economic

effects” besides jobs, might be observed and measured, by tracking such factors as:

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 9 OF 15

a. increased household earnings,

b. greater demand for:

i. business services,

ii. utilities,

iii. maintenance,

iv. repair, and/or

c. construction, both within and without, the defined region.

See generally 8 C.F.R. § 204.6(m)(3).

The decision to “Terminate a Regional Center’s USCIS-Designation and participation

in the Immigrant Investor (EB-5) Program” is not a decision to be pursued, made, or taken

lightly. None of the various items listed above should be viewed in isolation. None of

them should be taken as an absolute indicator of success, or failure. All of them, and

probably many other factors not listed here, need to be viewed in their proper context, and

in the totality of the circumstances.

In my view, since Termination is such a harsh consequence, it is best for USCIS to be

strict up-front, making every effort to ensure that only the honest and competent

Regional Center Applicants will be rewarded with the privileges, and saddled with

burdens, inherent in Regional Center Designation. Among the privileges of Regional

Center Designation are inexpensive financing, and eager investors with low financial

expectation for returns on their investments. Those eager investors have their eyes on a

different prize; immigrant visas to the United States for themselves and their immediate

families.

Foremost among the burdens of Regional Center Designation is the necessity to

produce concrete results towards the Program’s goals. Regional Centers have an initial

obligation towards their potential EB-5 investors. They must take great care in evaluating

investment vehicles that will be offered to would-be immigrants. Said investment vehicles

need to fully comply with the letter and spirit of EB-5 law in order to have the best chance

for success. In that EB-5 jurisprudence is limited and uncertain, and usually in a state of

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 10 OF 15

flux, compliance can be difficult. That being the case, an overabundance of caution is the

safest approach for all parties. It would ensure smoother processing for applications and

petitions, swifter release of fund if held in (optional3) escrow, and greater economic

benefits to the U.S. regional and local communities. As of July 5, 2016, USCIS’ list shows

847 approved regional centers; with 59 terminations, as of July 13, 2016. Given the

limited annual number of EB-5 visas, there are far too many EB-5 Regional Centers which

indicates a strong likelihood that more terminations are on the horizon.

V. Collateral Damage – Denied I-829 Petitions

Assuming arguendo, that a Regional Center is properly “Terminated”; regardless of

the basis for that action; “What happens to that Regional Center’s EB-5 investors?” This

question has been asked with more frequency of late, in tandem with efforts by USCIS-

IPO to more seriously examine the viability of the growing ranks of EB-5 Regional

Centers. Some EB-5 stakeholders attempt to differentiate between those pooled

investments that fail, and those situations where investors have been defrauded. Others,

like myself, do not differentiate between them, however, there are differences as to how

we would treat these investors’ cases.

Some in the EB-5 stakeholder community advocate that investors involved in failed

projects should be rewarded with I-829 approvals regardless of their failure to meet the

legal requirements of INA § 216A [8 U.S.C. § 1186b] necessary for lifting conditions

from status. Some of them would base I-829 approval on some type of “hardship waiver”

(which does not exist in EB-5 law). Others would only offer “waivers” to one subset or the

other but not both. I advocate that both groups should be treated the same and be allowed

to try again with a new investment. My preferred course of action would only require a

policy to exercise Prosecutorial Discretion by refraining from terminating conditional

3 While escrow is not a legal requirement, it has been widely accepted as a best practice and has become

an expectation among alien investors. Use of escrow came into use in order to show compliance with the

“commitment of funds” requirement in I-526 adjudications.

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 11 OF 15

status for a short time while the investor re-files a new I-526 petition. The sad part of this

approach are those cases where children might “age-out” but it would take Congressional

action to fix that issue. While it is far from perfect, absent a legislative fix, the

Prosecutorial Discretion approach, appears to be the only ameliorative option that is

currently possible under the existing EB-5 legal framework.

VI. Conclusion

In light of the foregoing discussion, it is now time to attempt to answer the main

question posed earlier. How should the agency determine when “the regional center no

longer serves the purpose of promoting economic growth”? It is essential to these

considerations to understand that Regional Centers are not equally situated. Not only are

there differences in geographic areas, by size, composition, and location; and “the kinds of

commercial enterprises that will receive capital from aliens”; there are also different

“levels” of Regional Centers.

By describing Regional Centers as being of different “levels”, I refer to whether the

Regional Center has gained its USCIS-Designation by presenting hypothetical, actual, or

exemplar projects4 or some combination thereof, to USCIS for vetting, whether initially,

or later in an amendment. The controlling USCIS Policy Memorandum for EB-5

Adjudications, in the footnotes on page 14, informs us as follows:

“2 An “actual project” refers to a specific project proposal that is

supported by a Matter of Ho compliant business plan. A “hypothetical

project” refers to a project proposal that is not supported by a Matter of Ho

compliant business plan. The term “exemplar” refers to a sample Form I-

526 petition, filed with a Form I-924 actual project proposal, that contains

copies of the commercial enterprise’s organizational and transactional

documents, which USCIS will review to determine if they are in compliance

with established EB-5 eligibility requirements.

4 EB-5 Adjudications Policy, PM-602-0083, (May 30, 2013), found on the USCIS Website at:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/May/EB-

5%20Adjudications%20PM%20%28Approved%20as%20final%205-30-13%29.pdf

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 12 OF 15

3 In cases where the Form I-924 is filed based on actual projects that do

not contain sufficient verifiable detail, the projects may still be approved as

hypothetical projects if they contain the requisite general proposals and

predictions. The projects approved as hypotheticals, however, will not

receive deference. In cases where some projects are approvable as actual

projects, and others are not approvable or only approvable as hypothetical

projects, the approval notice should contain a statement identifying which

projects have been approved as actual projects and will be accorded

deference and those projects that have been approved as hypothetical

projects but will not be accorded deference.”

Based on the above, Regional Center-affiliated investment vehicles clearly have

varying levels of deference. These different levels of deference might, or might not, be a

useful indicator of likelihood of success. There are more factors to be considered.

However, when it comes to the determination of whether or not USCIS should even

consider probing the question of Regional Center viability, the amount of effort

demonstrated towards EB-5 legal compliance will likely be one factor taken into account.

Parlaying off the “deference level”, a logical subsequent consideration would be the

amount of additional time that a newer Regional Center should be allowed to “firm up”

their softer plans and take affirmative steps forward in their planning activities.

Thinking about the issue of which factors matter most to a particular Regional

Center’s viability, when done in the abstract, will likely lead to more questions than

answers. That is because each Regional Center will have its own specific set of issues and

concerns. The possibility of Regional Center Termination is naturally fact-specific, fact-

intensive, and very evidence laden. It will take serious consideration of many issues and

the weighing of a lot of documentary evidence in order to render accurate findings-of-fact

and subsequent conclusions-of-law that lead to a sound judgement on the question of

Termination. I see no bright line on the major issues and questions involved in these

decisions.

How much time may a Regional Center remain idle after attaining initial designation?

Is the answer different when designation was based on a “hypothetical” project versus an

“actual” or “exemplar” project? What are the acceptable signs of progress? When a

developer is progressing through preliminary matters such as obtaining permits, variances,

inspections, or perhaps completing an Environmental Impact Study and mitigation efforts;

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 13 OF 15

how much is enough to justify allowing a Regional Center to remain idle with no I-526

petitions filed? Given that there is a finite number of ~10,000 EB-5 visas, which could

realistically only cover 3,000 to 3,500 investments annually, which by-the-way, could not

possibly satisfy demand for the over 800 currently approved Regional Centers, if they

were active simultaneously; how many Regional Centers can USCIS and its federal

partners effectively “oversee” or “police”?

Let us not forget that every Regional Center must annually file Form I-924A and the

processing eats up agency resources. If only 50 to 100 out of over 800 Regional Centers

actually have a viable development project under way, then perhaps up to ~750 might

have to be evaluated for viability on an annual basis. What a waste of resources! Is it any

wonder why processing times stretch out so long? While it is true that the proposed new

and increased fees may allow IPO to increase human and technological resources, that

takes time to put in place. So, considering the battle for resources and effects on

processing times across the board, does it not make sense to cut the dead weight of non-

viable and/or inactive Regional Centers in addition to the technical violators, ordinary

failures, and those found to have engaged in fraud? While some stakeholders advocate for

“leniency” so that various Economic Development Agencies can have the lure of EB-5 “in

reserve” “just in case” a suitable project comes along; this same leeway would have to be

given to everybody (without a statutory change which would differentiate state and local

“agencies” from private sector actors). The annual burden and drain on resources for IPO

is likely to be an untenable situation. Processing times will not improve without change!

I have urged those Regional Centers in danger of Termination to simply Withdraw

from participation in the EB-5 Regional Center Program in lieu of Termination or to try to

negotiate a withdrawal and that USCIS accept it. I recognize that it might be necessary for

a lawsuit to be filed if a situation required an exercise of equitable estoppel in order to

protect the immigration processes of limited numbers of EB-5 investors affiliated with a

particular Regional Center. Whether it is styled as a Stipulation or as a Settlement is

irrelevant if what is required is an exercise of authority beyond the powers of USCIS.

Page 14: Position Paper Presented to IPO on RC TERMINATION

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 14 OF 15

Bottom-line: It is simply too damned expensive to continue with the status quo!

The EB-5 Program and the EB-5 Industry must be streamlined or there will likely be

dark days ahead.

Dated this 29th of July, 2016

Joseph P. Whalen

Page 15: Position Paper Presented to IPO on RC TERMINATION

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CONSIDERATIONS FOR TERMINATION OF REGIONAL CENTER DESIGNATION PAGE 15 OF 15

FOR EASY REFERENCE

AAO AFFIRMANCES OF REGIONAL CENTER TERMINATIONS

__________________________________________________________________________

USCIS’ POSTED NON-PRECEDENT TERMINATION APPEAL DISMISSALS

HYPERLINK CITATION STRING (IF ANY) NAME OF REGIONAL CENTER

JUN222016_01K2610.pdf Matter of P-C-F-R-C- LLC, ID# 14717 (AAO June 22, 2016)

Palm Coast Florida Regional Center

JUN202016_01K2610.pdf Matter of A-L-V- LLC, ID# 15160 (AAO June 20, 2016)

American Life Ventures Everett, LLC

NOV172015_01K2610.pdf Matter of K-R-C-, LLC, ID# 14127 (AAO Nov. 17, 2015)

Kentucky Regional Center

Jul232012_01K2610.pdf El Monte Regional Center

Dec212011_01K2610.pdf Regional Center of Victorville Development, Inc.