What Is the Correct Authority Citation For A Regional Center Termination

by Joseph Whalen

Did it, or does it bother anybody else but me that the Victorville and El Monte Termination Decisions were labeled the way they were, with only Victorville posted at all and in the wrong?

The final AAO decision upholding termination is located in the folder entitled: K1 - Request for Participation as Regional Center instead of the K2- Termination of Participation as Regional Center .

The actual cover pages of those decisions cite the following information:

“APPLICATION: Proposal for Designation as a Regional Center Pursuant to Section

610 (c) of the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. No. 103-121, 106 Stat. 1874 (1992).”

What bugs me is that:

1.) This was not an application (i.e. “Proposal”) being denied; and

2.) The authority to terminate exists through regulatory interpretation of language in § 610(a) found in 8 CFR 204.6(m)(6).

§ 610(a) reads in full:

(a) 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 pilot program to implement the provisions of such section. Such pilot 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.

The key phrase in § 610(a) is highlighted via bold emphasis and underlining.

The regulation interpreting that key phrase in § 610(a) reads in full:

§ 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. [Emphasis Added]

In essence, 8 CFR § 204.6(m)(6) is a potential jurisdiction stripping regulation, whereby a Regional Center is stripped of its authority over a previously approved jurisdiction. In the long run, I guess it makes no difference for these two early decisions but it seems a bit sloppy to me, I’m just saying.

That’s my two-cents for now.

About The Author

Joseph Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.