by Joseph Whalen

There were two non precedent AAO Regional Center decisions posted for each of these two years, as of this writing. The 2012 decisions of Aug062012_01K1610.pdf and Dec042012_01K1610.pdf, are both dismissals of appeals of requests that relied on insufficient or substandard evidence. In the August decision “[t]he director determined that the economic analysis and business plan were insufficient to allow USCIS to approve the application.” In the December decision, “[t]he applicant ...[sought]... approval of an extremely vague proposal that cover[ed] 10 broad industrial categories over a geographic area that includes [ unknown part...] of the State of North Carolina. The director determined the applicant failed to meet the regulatory requirements outlined for regional centers, including those related to funds committed to the regional center, verifiable detail of indirect job creation, and a discussion of the positive impacts of the regional center on the regional or national economy.”

Just because the second above case pre-dates the Policy Change brought about by the issuance of the final policy memo, don’t get the idea that that last listed aspect will change all that much. While CSC will be prevented from being overly detail oriented and will not be allowed to demand such items as commitment letters in connection with a hypothetical project, as will be revealed, if and when you actually read these 2012 and 2013 AAO non-precedent decisions (if you haven’t done so already), “reasonable methodologies” must be put forth and properly supported. While each and every individual applicant would not be expected to produce their own feasibility studies for their projects, especially their hypothetical projects, verifiable detail always has been and remains available through existing reliable sources such as governmental agencies, industry organizations, or studies carried out or commissioned for other purposes (city, county, regional, or state-wide planning or through University research grants, as examples). An I-924 applicant is never going to be allowed to simply “make up” facts, figures, and statistics out of thin air with zero basis in reality.

Between the time that the above cases and the 2013 cases were decided, USCIS sorted out its EB-5 Adjudication Policy and issued a final Memo on May 30, 2013. The 2013 decisions of JUN122013_01K1610.pdf and JUL192013_01K1610.pdf both cite to and invoke the May 30th Memo. The June case involved an amendment of an Existing Regional Center Designation to expand geographic boundaries and add industries. CSC sought to deny the request but certified its decision to AAO. AAO withdrew the denial and approved the expansion based on “hypothetical projects” which would receive no deference in future adjudications. The July case involved an application for Initial Regional Center Designation. CSC denied, but certified, the July decision to AAO. AAO again withdrew the denial and approved the I-924. AAO again labeled the approval as being based on hypotheticals with zero deference in future adjudications.

I believe that the underlying message to be garnered from studying these cases is this: While the applicant need not always put forth solid shovel-ready specific projects to gain approval, that same applicant must demonstrate competence in their Form I-924 supporting documentation. If one submits their I-924 based on hypotheticals and thereby it is truly based upon “general predictions” based on a “general proposal” it must therefore rely more heavily on its explanation, discussion, display, and demonstration of its “reasonable methodologies” which it intends to utilize in order to predict job creation and/or preservation as well as explain their likely “other positive economic effects” upon the proposed region. I suggest that you treat the “hypothetical-based” I-924 like an acting audition, college admission essay, or job interview. In other words use the I-924 to demonstrate the fact that you have talent, are not a moron, and posses the required knowledge, skills, and abilities (KSAs) not only to succeed in the desired business or industry environments but also to competently run a Regional Center.

Although AAO dismissed the 2012 appeals before the May 30th Memo and then approved the 2013 certified cases, following issuance of the May 30th Memo, not having seen the actual evidence for comparison, I have no idea whether the 2012 cases could have been approved under the changed policy. We may never know. However, substandard and insufficient evidence, and the issue of being extremely vague, have not become desirable or blessed. The 2012 cases could have been supported by such lousy evidence that no amount of policy shifting could have saved them.

That’s my two-cents, for now.

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