(b)(4)

U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090

U.S. Citizenship and Immigration Services

DATE: JUL 0 9 2015 FILE#:

IN RE: Applicant:

APPLICATION: Application for Regional Center Under the Immigrant Investor Pilot Program Pursuant to Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. No. 102-395, 106 Stat. 1874 (1992).

ON BEHALF OF APPLICANT:

Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case.

If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our decision and/or reopen the proceeding. The requirements for motions are located at 8 C.P.R. § 103.5. Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing location, and other requirements. Please do not mail any motions directly to the AAO.

Thank you,

Jf~~:'~~trative Appeals Office

REV 3/2015 www.uscis.gov

(b)(4)

NON-PRECEDENT DECISION Page 2

DISCUSSION: The Chief, Immigrant Investor Program, denied the Application for Regional Center Under the Immigrant Investor Pilot Program (Form I-924). The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

The applicant filed Form I-924 seeking designation by the United States ·Citizenship and Immigration Services (USCIS) as a regional center for the

, pursuant to section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. No. 102-395, 106 Stat. 1828 (1992), as amended by section 116 of Pub. L. No. 105-119, 111 Stat. 2440 (1997); section 402 of Pub. L. No. 106-396, 114 Stat. 1637 (2000); section 11037 of Pub. L. No. 107-273, 116 Stat. 1758 (2002); section 4 of Pub. L. No. 108-156, 117 Stat. 1944 (2003); and section 1 of Pub. L. No. 112-176, 126 Stat. 1325 (2012) (1993 Appropriations Act). The applicant seeks regional center designation based on a hypothetical project to fund the development, construction, and operation of a luxury spa resort and condominium at within , Washington. 1

The chief denied the application, determining that the applicant did not submit a business plan for the regional center or provide any evidence of the regional center's administrative oversight. On appeal, the applicant submits a brief with additional documentation.

I. THELAW

Section 203(b)(5) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(5), as amended by Pub. L. No. 107-273, 116 Stat. 1758 (2002), provides classification to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise:

1 The regional center proposal is not based on an actual project and does not include an exemplar Immigrant Petition by Alien Entrepreneur (Form I-526). Page 14 of EB-5 Adjudications Policy, PM-602-0083 (May 30, 2013), provides:

The level of verifiable detail required for a [regional center proposal] to be approved and provided deference may vary depending on the nature of the [regional center proposal]. If the [regional center proposal] projects are "hypothetical" projects, general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment.

The record contains a general proposal based on broad predictions concerning the kinds of commercial enterprises that will receive capital, the direct and indirect jobs that would be created as a result of such capital investments based on data and multipliers, and other positive economic effects.

(b)(4)

Page 3 NON-PRECEDENT DECISION

(i) in which such alien has invested (after the date of the enactment of the Immigration Act of 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and

(ii) which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters).

Section 610(a) of the Departments of Justice and Related Agencies Appropriations Act, 1993, as amended, provides in pertinent part:

Of the visas otherwise available under section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. § 1153(b)(5)), the Secretary of State, together with the Secretary of Homeland Security, shall set aside visas for a program to implement the provisions of such section. 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 such capital investments, and the other positive economic effects such capital investments will have.

I. ANALYSIS

A. The Regional Center's Business Plan

The regulation at 8 C.F.R. § 204.6(m)(3) requires the regional center applicant to submit a detailed proposal for the regional center rather than a general or hypothetical proposal. For instance, the proposal must clearly describe how the regional center focuses on a geographical region of the United States and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment. 8 C.F.R. § 204.6(m)(3)(i). In addition, the proposal must provide in verifiable detail how jobs will be created directly through increased exports. 8 C.F.R. § 204.6(m)(3)(ii). Furthermore, the proposal must provide a comprehensive statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors ofthe regional center. 8 C.F.R. § 204.6(m)(3)(iii). Moreover, the proposal must contain a thorough prediction regarding the manner in which the regional center will have a

(b)(4)

NON-PRECEDENT DECISION Page 4

positive impact on the regional or national economy in general. 8 C.F.R. § 204.6(m)(3)(iv). Finally, the proposal must be supported by economically or statistically valid forecasting tools. 8 C.F .R. § 204.6(m)(3)(v).

At the initial filing of Form I-924 on January 23, 2012, the applicant submitted a document entitled _ 1, which pertained to the spa and resort project of

the regional center but did not reflect a specific business plan for the regional center. The regional center is a distinct and separate organization from the proposed project, and on April 22, 2013, the Director, California Service Center, issued a request for evidence (RFE), in part, notifying the applicant that a request for regional center designation should contain at least two business plans -one for the regional center's operational plan and one for a hypothetical, actual, or exemplar business plan for a project in each of the defined target industries in the proposal. The director requested the applicant to submit an operational plan for the regional center showing the amount of funds that have been dedicated to the regional center; the source of those funds and how the amount of funds is sufficient to sustain the regional center; and the past, current, and future promotional activities for the regional center including a description of the budget and source of funds for those activities. In addition, the director informed the applicant that a regional center must have sufficient capital to operate in the manner outlined in the proposal from sources apart from the immigrant investors' required capital investment.

In response to the RFE, the applicant submitted a revised dated July 11, 2013, that also pertained to the spa and resort project of the regional center but did not reflect a specific business plan for the regional center? The chief denied Form I-924 on November 12, 2014, in part, because the applicant did not submit an operational plan for the regional center as required by the regulation at 8 C.F.R. § 204.6(m)(3). Specifically, the chief determined that the applicant: did not demonstrate how the regional center will identify, assess, and evaluate proposed investor projects, activities, and enterprises; did not establish that the regional center had sufficient capital to operate; and did not demonstrate the promotional activities for the regional center.

On appeal, the applicant submits a two-page document entitled, ' _ _,the previously submitted dated January 6, 2014, and asserts in

the brief that "[t]he being provided is exactly the same as the copy provided to USCIS in the original filing almost three years ago despite further development during that time of the details discussed therein." A review of the record does not reflect that the applicant submitted this document at either the initial filing of the petition or at any time prior to the filing of the brief for this appeal. Therefore, we will review the document for the first time on appeal to determine if it complies with the requirements of the regulation at 8 C.F.R. § 204.6(m)(3).

2 The director also issued a notice of intent to deny the petition on December 12, 2013, regarding other issues. In response, the applicant submitted another revised , dated January 6, 2014, that only related to the spa and resort project. .

(b)(4)

NON-PRECEDENT DECISION Page 5

Page two of the states that , President, and Vice President, will "ensure that all necessary oversight is performed" such as "identifying, assessing and evaluating proposed immigrant investor projects and enterprises." The restates the language in the chiefs decision without providing specific information such as providing details on the manner in which the proposed projects or enterprises will be identified, assessed, and evaluated by the president and vice president. The offers no evidence, for example, of established protocols or procedures that will be used to evaluate proposals. The lack of specific information does not overcome the chiefs decision on this issue.

Moreover, the chief found that the applicant did not establish the amount of funds that have been dedicated to the regional center, how the regional center will be financed, and how much capital is required to sustain the regional center. The applicant asserts in the brief that the indicated that the regional center is seeking $17,000,000 in foreign investor funds to complete and operate the spa and condominium project for three years. However, the January 6, 2014, relates to a hypothetical project within the regional center. The record does not contain evidence of any monies that have been allocated to operate the regional center, how the regional center will be funded, and how much financing is needed to sustain the regional center. In addition, the exclusively relates to the spa and condominium project; investor funds cannot be used to finance, operate, and sustain the regional center. For all of these reasons, the applicant has not overcome the chiefs decision on these issues.

Finally, the chief determined that the applicant did not establish any past, current, and future promotional activities for the regional center, including a description of the budget for the promotional activity and how the funds have or will be used for these activities. The applicant's brief states that the addresses the promotional activities of the spa and resort project while the addresses the full budget for the marketing of the spa and resort project. According to page two of the , in 2007 the contacted the applicant "regarding a different immigration project that was not feasible" and since then the has put it "into contact with many potential investors who are interested in investing into an EB-5 project." Further, the asserts that since 2007 the applicant has "occasionally advertised (once or twice per year) in two Korean weekly papers"-

and In addition, the asserts that in 2008 the applicant "hosted a meeting which 20 people from the Korean community attended" and "[a] 40-page informational brochure was distributed to the attendants." Moreover, the states that "[t]here are currently no promotional activities going on to attract investors to this project" and regarding any future promotional efforts, the applicant "will be working closely with the above-mentioned groups to market this project to foreign nationals."

The applicant did not submit any documentary evidence to support its assertions. Statements made without supporting documentation are of limited probative value and are not sufficient to meet the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). The applicant did not submit any evidence of communication with investors from the applicant did not submit copies of the advertisements in or and the

(b)(4)

NON-PRECEDENT DECISION Page 6

applicant did not submit the 40-page informational brochure. Further, as indicated above, the asserts that it has occasionally advertised since 2007 and hosted a meeting in 2008;

however, according to page three of Form I-924 and the certificate of incorporation submitted by the applicant, was not established until It is unclear as to how could have promoted itself since 2007 when it was not established until Inconsistencies in the record must be resolved by independent, objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless competent, objective evidence is submitted pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 5 82, 591-92 (BIA 1988).

Nonetheless, the relates to the promotional activities of the spa and resort project rather than any promotional activities of the regional center. The indicates that the applicant is not currently promoting the spa and resort project, and there is no mention of any current or future promotional activities for the regional center. Moreover, the makes no mention of any budget for the regional center's promotional activity and how that activity will be funded. The applicant has not demonstrated the efforts taken to promote the regional center. Therefore, the applicant has not overcome the chiefs decision on this issue.

Accordingly, for the reasons stated above, the applicant has not provided a sufficiently detailed statement regarding the amount and source of capital that has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the regional center pursuant to the regulation at 8 C.F.R. § 204.6(m)(3).

B. Administrative Oversight

To ensure that a regional center continues to meet the requirements of section 210(a) of the Appropriations Act, as amended, the regulation at 8 C.F.R. § 204.6(m)(6) requires that the regional center provide USCIS with updated information by filing Form I-924A Supplement (Form I-924A) to demonstrate that the regional center continues to promote economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment.

The chief determined that the applicant did not submit any evidence of administrative oversight to determine the regional center's ability to monitor the immigrant investment activities in a manner that would allow the regional center to be fully responsive to the yearly information collection requirements of Form I-924A. The applicant's brief states that the "makes clear that the procedures have been laid out for to comply with the requirements of 8 CFR [§] 204.6(m)(6)."

As indicated above, page two of the indicates that the president and vice president will "ensure that all necessary oversight is performed." In addition, the asserts that the president and vice president will hire bookkeepers, outside accountants, and a certified public account (CPA) to prepare income and tax documents. Further, the asserts that although no firms have been retained for any of these purposes, it has been "in regular contact with many capable bookkeepers, accountants, and CPA's in and around the "

(b)(4)

NON-PRECEDENT DECISION Page 7

The does not include specific, credible information as to how the applicant will collect information to perform the administrative oversight of the regional center. There is no indication of any budgeted funds to pay for the employment of financial consultants and employees or any other overhead costs and staffing needs. Although the makes general statements, it does not explain how it will monitor regional productivity, job creation, and domestic capital investment.

Accordingly, for the reasons stated above, the applicant has not established that the regional center would be able to comply with the yearly reporting requirements set forth at 8 C.F.R. § 204.6(m)(6).

II. CONCLUSION

The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In application proceedings, it is the applicant's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, the applicant has not met that burden.

ORDER: The appeal is dismissed.

Up until the form I-924 was created, Regional Center applicants had very little guidance. In fact, they had nothing beyond the regulations until a Regional Center Unit was created at USCIS HQ in 2005. The early work of that unit was very much via direct communication whether by phone, e-mail, or face-to-face. There was almost zero easy to understand written guidance. In 2008, I put together some fairly “user-friendly unofficial instructions” for potential Regional Center applicants. It was purely selfish on my part. I was adjudicating the proposals and was tired of getting inadequate submissions. Some were far too vague and some had way too much extraneous garbage, none ever got it just right on the first try. The following is what was available BEFORE the I-924. The following is NOT exactly what was initially put forth because, we switched from HQ filing to CSC filing after the volume increased but before the I-924 was instituted. The I-924 became necessary so that a fee could be collected. It was not until these unofficial instruction increased the volume of submissions to the point that USCIS felt that a full blown fee study was justified. Until that increase in volume, it was not worth the effort to create a form and collect a fee for Regional Center Designation Requests. Please compare these OUTDATED UNOFFICIAL INSTRUCTIONS to the current I-924 Form Instructions in order to see which things have changed (or not). Contact me at: joseph.whalen774@gmail.com

HOW TO APPLY FOR REGIONAL CENTER DESIGNATION

In all likelihood your submission will be more than several pages, please use acco-fasteners to attach the documents at the top of each page or place it in a three ring binder with tabs. Send submissions to:

USCIS California Service Center ATTN: EB-5 Regional Center Proposal P.O. Box 10526 Laguna Niguel, CA 92607-0526 For non-U.S. Postal Service deliveries (e.g. private couriers), send to: U.S. Citizenship and Immigration Services California Service Center Attn: EB-5 Processing Unit 24000 Avila Road, 2nd Floor Laguna Niguel, CA 92677

What is the Immigrant Investor Pilot Program?

The Immigrant Investor Pilot Program (“Pilot Program”) was created by Section 610 of Public Law 102-395 (October 6, 1992), as amended. This is different in certain ways from the basic EB-5 investor program.

The Pilot Program began in accordance with a Congressional mandate aimed at stimulating economic activity and creating jobs for U.S. workers, while simultaneously affording eligible aliens the opportunity to become lawful permanent residents. Through this innovative program, foreign investors are encouraged to invest funds in an economic unit known as a “Regional Center.”

A Regional Center is defined in the regulations as any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.

Initial evidence requirements.

1. 8 CFR 204.6 (m) states in pertinent part:

(3) Requirements for Regional Centers. Each regional center wishing to participate in the Immigrant Investor Pilot Program shall submit a proposal to the…[Director, California Service Center]…, which:

(i) Clearly describes how the regional center focuses on a geographical region of the United States, and how it will promote economic growth through improved regional productivity, job creation, and increased domestic capital investment;

(ii) Provides in verifiable detail how jobs will be created indirectly; …………..

(iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center;

(iv) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and

(v) Is supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported [if any], and/or multiplier tables.

2. It is always best to start with a cover letter that acts as an executive summary followed by a table of contents of the various tabbed sections to follow.

In reference to 8 CFR 204.6(m)(3)(i) as stated above the geographical area must be contiguous and clearly delineated. It is most helpful to provide the following series of maps, charts or written descriptions:

• The entire desired Regional Center Area • Standard Metropolitan Statistical Areas (SMSA’s) • IF KNOWN or as reasonable estimated based on current data: High Unemployment

Targeted Employment Areas (TEA’s) as determined by the Governor or designee, (1.) areas within SMSA’s or 2.) population centers of 20,000 or more outside SMSA’s; with unemployment rates 150% or more of the national rate)

• Rural Area TEAs (areas outside SMSA’s with populations under 20,000 people) • Census Tracts, Cities, Towns, Counties, etc.

• Unemployment Rates by Cities, Towns, Counties or Census Tracts, etc.

3. In reference to 8 CFR 204.6(m)(3)(ii) as stated above for a Regional Center it is imperative to fully explain indirect job creation, as well as the direct and induced jobs, if any. The requirement of creating at least 10 new full-time (35 hours per week) jobs per each individual alien investor may be satisfied by showing that, as a result of the investment and the activities of the new enterprise, at least 10 jobs per alien investor will be created directly or indirectly through an employment creation multiplier effect.

Submit an Economic Analysis and model that shows and describes job creation for each category of economic activity (for example, manufacturing, food production/processing, warehousing, tourism and hospitality, transportation, power generation, agriculture, etc.)

Aspects of this element of the proposal may be combined with items 7 and 8, below in a single economic analysis and job creation model.

Concerns about the lack of a level and range of detail in the business plan and impact analyses, which makes sound business sense, especially at the individual I-526 level of detail, unfortunately is neither explicitly required nor demanded under the provisions of the INA which apply to the Immigrant Investor Pilot Program nor specific amendments to the statute, especially in the 2002 amendment Per Public Law 107-273, enacted November 2, 2002, which clearly states:

“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 such capital investments, and the other positive economic effects such capital investments will have.”

When relying on econometric models for indirect job creation it is imperative that “direct jobs” will be real identifiable jobs supported by wage reports or I-9 forms otherwise they must be explicitly identified as hypothetical in nature. Another method would be to predict jobs based on dollar amount invested in the overall project, this too must be made clear. This distinction will be critical at the I-829 removal of condition stage of the immigration process.

4. In reference to 8 C.F.R. § 204.6(m)(3)(iii), a proposal must include a detailed statement regarding the amount and source of the capital that has been committed to the Regional Center, in addition to the description of the promotional efforts taken and planned by the Regional Center’s sponsors. USCIS has interpreted the words, “amount and source of capital that has been committed to the Regional Center” to mean the capital sufficient to sustain the Regional Center distinct from immigrant investors’ required capital investment in a new commercial enterprise within the Regional Center.

The detailed statement that is required to meet the regulatory requirement relating to the amount and source of capital committed to the Regional Center should include:

a) the exact amount of funds that have been dedicated to the Regional Center to accomplish the goals of the Pilot Program;

b) the source of such funds; c) whether the amount is sufficient to sustain the Regional Center; and d) evidence that the funds have already been committed to the Regional Center.

None of the capital sustaining the Regional Center can come from immigrant investors’ required threshold capital investment (as distinct from the new commercial enterprises’ revenues). This separation of funds is necessary to enable the alien entrepreneur to qualify for the conditional EB-5 immigrant investor classification at the I-526 petitioning stage of the immigration process.

5. Also, under 8 CFR 204.6(m)(3)(iii) as stated above for any individual alien investor who will be solicited by a Regional Center to invest the requisite capital into a Regional Center commercial activity, it will be incumbent on the Regional Center to engage in a due diligence process to establish that all sources of capital can be fully explained and clearly shown to have been lawfully obtained.

Submit a plan of proposed Regional Center operation which addresses how investors will be recruited and how the Regional Center will conduct its due diligence to accommodate the requirement that all immigrant investor funds will be lawfully obtained and describe what measures will be taken by the Regional Center to ensure and validate this. Will the submission of certain financial documents be required of foreign investors or will the Regional Center, for example, utilize a professional investigating firm to vet a potential investor’s source of funds? What are your plans in this regard?

6. Lastly under 8 CFR 204.6(m)(3)(iii), USCIS interprets the words “promotional efforts” to mean an advertising or marketing program planned by the sponsors of the Regional Center that is designed to attract immigrant investors to the Regional Center. Regional Center proposals require a full description of the past, current and future promotional activities for the Regional Center. This shall include a description of the budget for this activity as well as a statement as to the source of those funds used to accomplish this necessary task.

7. In reference to 8 CFR 204.6 (m)(3)(iv) as stated above a detailed prediction must be provided which includes the topics of regional or national impact, household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the Regional Center. This can be combined with items 3, above, and 8, below.

The proposal should not make vague references to regional economic impacts but should provide actual monetary predictions and address the elements listed in USCIS regulations. The economic model and analysis requested in item 3, above, and item 8, below, will also need to address these specific points as listed here.

8. In reference to 8 CFR 204.6 (m)(3)(v) as stated above submit a complete and valid economic analysis sufficiently detailed to predict the overall economic impact to be made by the Regional Center. This can be combined with items 3 and 7, above.

Again it is stressed that the economic analysis that can be combined with items 3 and 7, above, must be sufficiently detailed to predict the overall economic impact and localized impacts to be made by the Regional Center’s investment activities and projects.

9. The business aspects of the Regional Center must be fully explained as to its structure. This aspect of a proposal includes, but is not limited to, the following basic elements or samples of them as applicable to the business approach and structure to be used by the Regional Center:

• An overall Business Plan-mandatory • Draft Operating Agreement • Draft Partnership Agreement • Draft Subscription Agreement • Draft Escrow Agreements and Instructions (one for capital and one for any service fees)

Such agreements usually include an “out clause” in the event of an unsuccessful visa process as a marketing tool but are not required.

• List of proposed reputable financial institutions to serve as the Escrow Agent(s) • Draft of an Offering Letter, Memorandum, Confidential Private Placement

Memorandum, or similar offering made in writing to an immigrant investor through the Regional Center.

• Draft Memorandum of Understanding, Interagency Agreement, Contract, Letter of Intent, Advisory Agreement, or similar agreement to be entered into with any other party, agency or organization to engage in activities on behalf of or in the name of the Regional Center.

10. Submit a description of the applicant’s plans to administer, oversee, and manage the proposed Regional Center, including but not limited to such things as to identify, assess and evaluate proposed immigrant investor projects and enterprises; how the proposed Regional Center would perform “due diligence” as to whether investment capital to be sought will consist solely of alien investor capitol or a combination of alien investor capital and domestic capital; how to monitor all investment activities affiliated, through or under the sponsorship of the proposed Regional Center, and to maintain records, data and information on projects, investors, business activities, etc., in order to report to USCIS for each Federal Fiscal Year . This is known as “due diligence” and is coupled with “oversight reporting responsibilities”. Fully explained in detail below.

DESIGNEE’S RESPONSIBILITIES INHERENT IN CONDUCT OF A USCIS DESIGNATED REGIONAL CENTER:

CURRENT VERSION OF:

8 CFR § 204.6 Petitions for employment creation aliens.

(m) Immigrant Investor Pilot Program —

(6)* Termination of participation of regional centers. 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. The notice of intent to terminate shall be made upon notice to the regional center and shall set forth the reasons for termination. The regional center must be provided 30 days from receipt of the notice of intent to terminate to offer evidence in opposition to the ground or grounds alleged in the notice of intent to terminate. If USCIS determines that the regional center's participation in the Pilot Program should be terminated, USCIS shall notify the regional center of the decision and of the reasons for termination. As provided in 8 CFR 103.3, the regional center may appeal the decision to USCIS within 30 days after the service of notice.

[*Most recently amended by 75 FR 58990, Sept. 24, 2010, a major re-write, includes a form.]

PRIOR VERSION OF:

8 CFR § 204.6 Petitions for employment creation aliens.

(m) Immigrant Investor Pilot Program —

(6) Termination of participation of regional centers. To ensure that regional centers continue to meet the requirements of section 610(a) of the Appropriations Act, the Assistant Commissioner for Adjudications shall issue a notice of intent to terminate the participation of a regional center in the pilot program 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. The notice of intent to terminate shall be made upon notice to the regional center and shall set forth the reasons for termination. The regional center must be provided thirty days from receipt of the notice of intent to terminate to offer evidence in opposition to the ground or grounds alleged in the notice of intent to terminate. If the Assistant Commissioner for Adjudications determines that the regional center's participation in the Pilot Program should be terminated, the Assistant Commissioner for Adjudications shall notify the regional center of the decision and of the reasons for termination. The regional center may appeal the decision within thirty days after the service of notice to the Associate Commissioner for Examinations as provided in 8 CFR 103.3.

Prior to the creation of the USCIS Form I-924A, and based on the previous version of 8 CFR 204.6(m)(6), Regional Centers were instructed thusly:

The law, as reflected in the regulations at 8 CFR 204.6(m)(6), requires that an approved Regional Center in order to maintain the validity of its approval and designation must continue to meet the statutory requirements of the Immigrant Investor Pilot Program by serving the purpose of promoting economic growth, including increased export sales (where applicable), improved regional productivity, job creation, and increased domestic capital investment. Therefore, in order for USCIS to determine whether your Regional Center is in compliance with the above cited regulation, and in order to continue to operate as a USCIS approved and designated Regional Center, your administration, oversight, and management of your Regional Center shall be such as to monitor all investment activities under the sponsorship of your Regional Center and to maintain records, data and information on a quarterly basis in order to report to USCIS upon request the following year to date information for each Federal Fiscal Year1, commencing with the initial year as follows:

• Provide the principal authorized official and point of contact of the Regional Center responsible for the normal operation, management and administration of the Regional Center.

• Be prepared to explain how you are administering the Regional Center and how you will be actively engaged in supporting a due diligence screening of its alien investors’ lawful source of capital and the alien investor’s ability to fully invest the requisite amount of capital.

• Be prepared to explain the following:

How the Regional Center is actively engaged in the evaluation, oversight and follows up on any proposed commercial activities that will be utilized by alien investors.

How the Regional Center is actively engaged in the ongoing monitoring, evaluation, oversight and follows up on any investor commercial activity affiliated through the Regional Center that will be utilized by alien investors in order to create direct and/or indirect jobs through qualifying EB-5 capital investments into commercial enterprises within the Regional Center.

• Be prepared to provide:

the name, date of birth, petition receipt number, and alien registration number (if one has been assigned by USCIS) of each principal alien investor who has made an investment and has filed an EB-5/I-526 Petition with USCIS, specifying whether:

the petition was filed, is pending, was approved, denied, or

1 A Federal Fiscal Year runs for twelve consecutive months from October 1st to September 30th.

withdrawn by the petitioner, together with the date(s) of such event.

• The total number of visas represented in each case for the principal alien investor identified above, plus his/her dependents (spouse and children) for whom immigrant status is sought or has been granted.

• The country of nationality of each alien investor who has made an investment and filed an EB-5/I-526 petition with USCIS.

• The U.S. city and state of residence (or intended residence) of each alien investor who has made an investment and filed an EB-5/I-526 petition with USCIS.

• For each alien investor listed above, identify the following:

the date(s) of investment in the commercial enterprise; the amount(s) of investment in the commercial enterprise; and the date(s), nature, and amount(s) of any payment/remuneration/profit/return on

investment made to the alien investor by the commercial enterprise and/or Regional Center from when the investment was initiated to the present.

• Be prepared to identify/list each of the target industry categories of business activity within the geographic boundaries of your Regional Center that have:

received alien investors’ capital, and in what aggregate amounts; received non-EB-5 domestic capital that has been combined and invested together,

specifying the separate aggregate amounts of the domestic investment capital; of the total investor capital (alien and domestic) identified above, identify and list the

following:

The name and address of each “direct” job creating commercial enterprise.

The industry category for each indirect job creating investment activity.

• Be prepared to provide:

The total aggregate number of approved EB-5 alien investor I-526 petitions per each Federal Fiscal Year to date made through your Regional Center.

The total aggregate number of approved EB-5 alien investor I-829 petitions per each Federal Fiscal Year to date through your Regional Center.

The total aggregate sum of EB-5 alien capital invested through your Regional Center for each Federal Fiscal Year to date since your approval and designation.

The combined total aggregate of “new” direct and/or indirect jobs created by EB-5 investors through your Regional Center for each Federal Fiscal Year to date since your approval and designation.

If applicable, the total aggregate of “preserved” or saved jobs by EB-5 alien investors into troubled businesses through your Regional Center for each Federal Fiscal Year to date since your approval and designation.

• If for any given Federal Fiscal Year your Regional Center did or does not have investors to report, then provide:

a detailed written explanation for the inactivity, a specific plan which specifies the budget, timelines, milestones and critical steps to: actively promote your Regional Center program,

identify and recruit legitimate and viable alien investors, and a strategy to invest into job creating enterprises and/or investment activities within the

Regional Center.

• Regarding your website, if any, please be prepared to provide a hard copy which represents fully what your Regional Center has posted on its website, as well as providing your web address. Additionally, please provide a packet containing all of your Regional Center’s hard copy promotional materials such as brochures, flyers, press articles, advertisements, etc.

• Finally, please be aware that it is incumbent on each USCIS approved and designated Regional Center, in order to remain in good standing, to notify the USCIS EB-5 Immigrant Investor Program within 15 business days at: USCIS.ImmigrantInvestorProgram@dhs.gov of any change of address or occurrence of any material change in:

the name and contact information of the responsible official and/or Point of Contact (POC) for the RC,

the management and administration of the RC,

the RC structure,

the RC mailing address, web site address, email address, phone and fax number,

the scope of the RC operations and focus,

the RC business plan,

any new, reduced or expanded delegation of authority , MOU, agreement, contract, etc. with another party to represent or act on behalf of the RC,

the economic focus of the RC, or

any material change relating to your Regional Center’s basis for its most recent designation and/or reaffirmation by USCIS.

Now that USCIS has outlined the duties inherent in the conduct of a Regional Center, please submit a plan of action to remain in compliance with the enumerated requirements.

11. With respect to the process by which a High Unemployment Area (USCIS TEA) is designated by the State. The exact and complete relevant language of the regulation that covers this may be found at 8 CFR 204.6(i), where it reads as follows:

State designation of a high unemployment area. The state government of any state of the United States may designate a particular geographic or political subdivision located within a metropolitan statistical area or within a city or town having a population of 20,000 or more within such state as an area of high unemployment (at least 150 percent of the national average rate). Evidence of such 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 provided to a prospective alien entrepreneur for submission with Form I-526. Before any such designation is made, an official of the state must notify the… [Chief, Office of Service Center Operations]… of the agency, board, or other appropriate governmental body of the state which shall be delegated the authority to certify that the geographic or political subdivision is a high unemployment area.

Therefore it is incumbent upon the state to notify USCIS which “governmental body of the state” has been delegated the authority by the Governor to certify that a geographic or political subdivision is a high unemployment area for purposes of being designated as a Targeted Employment Area (TEA) under USCIS regulations. [Applicable sentence in bold above.] It is left to the appropriate designee within the state to exercise its authority and utilize what method or methods of its choosing in obtaining the unemployment statistics.

IF SUCH DESIGNATION HAS NOT ALREADY BEEN MADE:

A letter from the Governor of the state identifying the designated authority within the state to certify the geographic area(s) or political subdivision(s) within applicable metropolitan statistical areas as having high unemployment equal to 150% or more of the national unemployment rate would need to be addressed as follows and sent via Express Mail or courier service to:

Chief, Office of Service Center Operations, MS 2060 U.S. Citizenship and Immigration Services 20 Massachusetts Avenue, NW Washington, DC 20529-2060

Further clarification of the role of the state designated authority in the I-526 process is found at 8 CFR 204.6 (j) (6) (ii) (B) as follows:

(6) If applicable, to show that the new commercial enterprise has created or will create employment in a targeted employment area, the petition must be accompanied by: ….. (ii) In the case of a high unemployment area: ….. (B) A letter from an authorized body of the government of the state in which the new commercial enterprise is located which certifies that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in

which the enterprise is principally doing business has been designated a high unemployment area. The letter must meet the requirements of 8 CFR 204.6(i). [Applicable sentence underlined above.]

It is hoped that the above references and information will be of help to you and the appropriate officials of the state with respect to your interest in seeking to establish a Regional Center through the Immigrant Investor Pilot Program that would focus within the state.

PLEASE NOTE: For your proposal submission and supporting evidence for items 1 through 11 above, please use acco-fasteners or place in a three ring binder with tabs to attach the documents at the top of each page, and individually tab the written materials/responses which you submit for each of the applicable items listed above in items 1 through 11. Also, submit the proposal in duplicate.

Translations Any document containing a foreign language submitted to USCIS shall be accompanied by a full English translation that the translator has certified as complete and accurate, and by the translator’s certification that he or she is competent to translate from the foreign language into English.

Copies Unless specifically required that an original document be filed with an application or petition, an ordinary legible photocopy may be submitted. Original documents submitted when not required will remain part of the record, even if the submission was not required.

Address Changes If you change your address and you have an application or petition pending with USCIS, you may change your address by sending notification to:

USCIS California Service Center P.O. Box 10526 Laguna Niguel, CA 92607-0526

(Or by E-mail at: USCIS.ImmigrantInvestorProgram@dhs.gov )

If you have any questions concerning any such approval and designation under the Immigrant Investor Pilot Program, please contact the USCIS EB-5 Immigrant Investor Program by Email at USCIS.ImmigrantInvestorProgram@dhs.gov

Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor

1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218 Phone: (716) 604-4233 Fax: (716)568-8208 E-mail: joseph.whalen774@gmail.com or Silver.SurferEB5@gmail.com or twitter@JoeWhalen1 web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: Work is performed by a non-attorney independent business consultant. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NAICS Code: 611430 Professional and Management Development Training [posted August 15, 2012]