Are YOU an EB5 Lemming?
By Joseph P. Whalen (October 17, 2013)

“Because of their association with this odd behavior,
lemming "suicide" is a frequently used metaphor in
referenceto people who go along unquestioningly
with popular opinion, with potentially dangerous
or fatal consequences.” [1]

What “odd behavior” you may ask? Well, I shall endeavor to explain.

These small rodents that inhabit the tundra have been known; at least in pop culture; and at least since the mid-1500s; to do such things as:

· attempt to swim such vast bodies of water that they die trying;
· jumping off a cliff en masse [the most popular image of them];[2]
· following a lousy leader off of that cliff. [also very popular]

If you have ever read any of my musings before then you know I can and will make a point and tie it up with a bow all while relating it to whatever I want. In this case, I want to relate my opinions and feelings about some of the outrageous misconceptions and the behaviors associated with them that I have witnessed both near and far. People around the world want to come to America and live free but some have nobody to file a petition for them. They have no qualifying relative; or eager potential employer that just can’t get along without them. Still others do have kin or a boss but the waiting time may be years which, just won’t suffice. Their only hope is EB5.

EB5 or employment-based fifth preference immigrant visas are for folks willing to take a chance by investing a million bucks and hopefully creating at least ten (10) full-time jobs for qualified U.S. workers. Great! That sounds easy enough; where do I sign up and how is USCIS going to put my money to use to create those jobs?

That last sentence contains three (3) popular misconceptions.[3]
1. That it is easy!
2. You merely hand over the money.
3. The government will use the money to create jobs.

I suppose that some poor souls out there truly believe all three of those myths. Well, I don’t just “suppose”; I know it for a fact as surely as I know that water is wet in its liquid form. Did you notice how I qualified what I was willing to say exactly and precisely what I knew for a fact? If I had merely said “water is wet” then I would be open to challenges from folks who want to argue about such nuisance notions as; ice and steam are “not wet” but they are merely water in another form; ice as the solid and steam as the gaseous, forms of water.

Once “debunking” the error of the obviously flawed moron (me) who declared that it is a fact that “water is always wet”; the great new leader is followed by his or her flock of sheep (or bunch of EB5 Lemmings) into the abyss, for a hefty finder’s fee of perhaps 50K per sucker.

Notice that I added the word “always”. It happens that it was the key element needed by the great new leader (foreign “agent”) to debunk the person urging caution. Not all foreign EB5 agents are unscrupulous. Some are and some are just as confused as MOST people are about EB5. Lastly[4], some of the foreign EB5 agents truly believe that they understand EB5 and that the misconception de jure, is actually true. There are too many “dead lemmings” in EB5!

EB5 Stakeholders’ vs. USCIS’ “Misconceptions”

EB5 stakeholders may be the intending immigrant investor Petitioners, EB5 “agents”, EB5 practitioners of all sorts[5], EB5 detractors[6], Regional Center Applicants, as well as Designated Regional Centers. USCIS is represented by its EB5 economists and business analysts (if any), adjudicators, OCC, management, and of course AAO. The cast of characters is quite large, dauntingly so! I believe it is the sheer magnitude of opinions that is at the heart of the problems in EB5. The adage “too many cooks spoil the broth” has no better real life example than the EB5 Immigrant Investor and Regional Center Program.

I will list and link some examples of situations, cases, notions, and questionable decision-making and leadership; that pushed, pulled, kicked, dragged, or blindly lead some EB5 Lemmings over the cliff:

· In the Carlsson case[7], the actual on the ground specific project that was happening was insufficient and unsuitable for an EB5 investment of that magnitude. Re-read the case. EB5 Lemmings!
· As the Chicago Convention Center case still crawls to the bitter end, we see that perhaps some “EB5 agents”, hmm, what’s the best way to put it? Oh yes! They LIED through their teeth as they smiled all the way to the bank. But this case also tells us that probably 290 investors did absolutely ZERO Due Diligence—EB5 Lemmings!
· The Chung case, involving the Winters Dairy Farm, had EB5 Lemmings on both sides of the equation. This is best illustrated in the AAO Decision. In this one, CSC was somewhat of a lemming in trying to revisit things inappropriately (they attempted to deny on the issue of multipliers it had previously OK’d). They didn’t have to and should not have gone there. The I-829 could not be approved based on an illegal alien workforce and fraudulent documents submitted. Also, the investment failed when the farm went under! EB5 Lemmings!
· The issue of FTEs (full-time equivalents) was a central problem in TSC and CSC Culture of NO! EB5 Attitudes for years. FTEs are a staple in econometric modeling but USCIS and Legacy INS simply fought it tooth and nail. Since the issue of FTEs ONLY arises in the Regional Center context because it is the context where “reasonable methodologies” arises, that’s where it should stay. The May 30, 2013, Memo, goes a long way towards fixing this problem. It has inadvertently caused a new one. There are folks out there right now trying to pass off the idea that in a non-Regional Center NCE it will be OK to add up part-time jobs and are offering ****ty projects to desperate wannabe immigrants. Watch out for the backlash when USCIS gets blamed for it! Until such time as Congress changes the basic ten (10) full-time jobs requirement, anyone swindled through reference to the Memo will likely sue USCIS for denying their greencards. On this issue, there may be quite a lot of EB5 Lemmings in waiting!

Once a strong leader with a charismatic smile and the accompanying forceful personality figures SOME ANGLE of any sort to swindle the EB5 Lemmings around the world; all hell may break loose. Do me a favor; remember where you heard it first! There are other ways than described.

That’s my two-cents, for now.

[1] From: Text is not italicized in original.

[2] See:

[3] There are MANY more misconceptions but I don’t want to overwhelm the reader.

[4] At least for this article at any rate.

[5] Including but not limited to: attorneys, consultants, project developers, brokers/dealers, bloggers, various associations, advocates, many authors, etc… . You know who you are.

[6] Includes but is not limited to: the press, lobbying groups, certain members of Congress, various associations, so-called advocates, many authors, etc… . You know who you are.

[7] Visit where I have at least 9 items posted. Search “Carlsson” 2 ss’s.