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  • Article: Taking On The EB-5 Community's Confusion About "EXEMPLARS" by Joseph Whalen

    Taking On The EB-5 Community's Confusion About "EXEMPLARS"

    by Joseph Whalen

    Taking On The EB-5 Community’s Confusion About “EXEMPLARS”

    By Joseph P. Whalen (August 15, 2012)

    Quite unfortunately, one word has been used to refer to two DIFFERENT but RELATED concepts in EB-5. I will be so bold as to try to explain the difference to anyone who cares to hear about it. Here goes....

    Exemplar (definition[1]):

    1. One that is worthy of imitation; a model.

    2. One that is typical or representative; an example.

    3. An ideal that serves as a pattern; an archetype.

    4. A copy, as of a book.

    Initial I-924 or Expansion Amendment

    Dummy I-526” as I-924 Amendment

    This EXEMPLARkind of commercial enterprise that will receive capital from aliens” satisfies the demands of 8 USC § 1153 Note: Pilot Immigration Program. The hypothetical BP & EA[2] are exemplars.

    Think “ARCHETYPE” at this stage!

    This EXEMPLAR is a packet of prima facie evidence in support of an “actual” or “shovel ready” Specific Project. This evidence will be supplemented later by EB-5 investors’ financial documents in REAL I-526s. These BPs & EAs are REAL[3] and Project-Specific.

    When seeking basic Regional Center Designation, you don’t have to have a Specific Project ready to break ground any day. In fact, that is probably a big mistake. It takes too long for USCIS to adjudicate it that way! That Project will fall through while waiting on the I-924 Approval!

    This is the stage at which you are defining broad operational parameters, or the “Scope of the Regional Center”.

    This is a broad-based, large-scale, long-term statement of your mission, goals, and, objectives; and your geography; reasonable methodologies; and industries.

    When you have a real project that is close to breaking ground, an I-526 EXEMPLAR filed as an I-924 Amendment affords an opportunity to fine-tune project-specific documents & get them OK’s by USCIS. These documents will be handed over to multiple EB-5 investors {for as fee} to support their REAL I-526s.

    In that the EXEMPLAR is NOT a real I-526, it does NOT have to be “approvable when filed”. The RC Applicant is NOT a visa petitioner seeking a visa. There is no requirement that you be “eligible [for an immigrant visa] at time of filing”.

    DISCUSSION

    I am afraid that folks have been dragged into a quagmire due to a bad adjudication methodology and the inherent confusion it instills in both the applicants and adjudicators. That statement does not even take the actual alien investors into the mix! Please remember that the Regional Center Designation via form I-924 is a separate process with separate parameters than an I-526 or the follow-up I-829.

    The I-924 APPLICANT is seeking licensure from USCIS. Such licensure allows the Regional Center to market projects specifically designed to meet the EB-5 criteria required of the EB-5 investors when they file their I-526 VISA PETITIONS and later when they seek to LIFT CONDITIONS via form I-829. Please keep the distinct roles in their proper perspectives. You’ll sleep better if you do!

    While there are no Regional Center AAO Precedents and only a few non-binding Administrative Decisions, the following excerpt is from none of them. It is from a completely different application. However, this blurb says something to which it would be wise for you to pay close attention. In this non-precedent AAO decision involving a form I-905, Application for Authorization to Issue Certification for Health Care Workers, AAO recognized the application for what it was—an application for a “license”.

    The I-905 is the one form type that USCIS and AAO have experience with which shares certain critical basic elements with the I-924, Application For Regional Center Under the Immigrant Investor Pilot Program.

    Ø Both are applications by an “entity” seeking to lend its expertise to aliens seeking visas.

    Ø Both involve applicants who profess to have very specific expertise which will be utilized by individual aliens seeking help in obtaining highly specialized visas.

    Ø Both “expert organizations” will provide specific support services to their alien clients for a fee.

    Ø USCIS is giving them permission to do so and MUST make sure that these applicants seeking such licenses have the ability to follow through and not cheat their alien clients.

    Here is the promised blurb. I hope that you find it as enlightening as I did. If you don’t then heaven help the ****ers investors who invest in one of your projects!

    “In the space on the Form I-905 application labeled "Occupations for which you are seeking authorization" the applicant entered,”[REDACTED] is one of the partner and member [sic] of evaluation team. We need approval of all medical profession." The applicant did not otherwise state the medical positions it is seeking licensure to certify and did not demonstrate that its evaluators are competent to certify the educational credentials of those medical professionals seeking such certifications. [Emphasis Added.]

    As to the process pursuant to which it would issue certificates[4] the applicant stated on the application that it would check documents presented for authenticity and interview the person seeking certification. In an addendum the applicant stated that foreign documents are critically examined to determine the number of years of study, the content of the courses and institutions, the "medium of study," and the educations and degrees of the faculty at which degrees were earned.

    Another section of the Form 1-905 requests that the applicant "Explain [its] expertise, knowledge, and experience in the health care occupations for which [it seeks] authorization." In answer to that question the applicant stated that it does "all kinds of credential evaluation including medical profession," [sic] and that "The expert opinion of [REDACTED] is always taken if there is any need, any other expert opinion in the similar field is obtained before a final issuance of the certification and its proper records are maintained." The applicant did not otherwise explain its expertise, knowledge, and experience pertinent to health care occupations. [Vague does not suffice.]

    In answer to the request that it explain how it meets the standards described in the instructions sheet FN2 the applicant referred to an addendum. In the addendum the applicant asserted that it is a legal incorporated entity, that it is independent of hospitals and other health care providers, that it is impartial, that its fees are not contingent, and that the applicant is able to obtain outside expert advice. The applicant did not provide evidence in support of any of those assertions.” At p. 7

    ____________

    FN2 The standards described in the instructions sheet include all of the standards listed in at 8 C.F.R. § 212.15(k)(l) - (8), set out above.

    The above is from a non-precedent AAO decision found at the category linked here:

    M4 - Application for Authorization to Issue Certification for Health Care Workers

    The direct link is either Nov092006_01M4212.pdf or http://www.uscis.gov/err/M4%20-%20Application%20for%20Authorization%20to%20Issue%20Certification%20for%20Health%20Care%20Workers/Decisions_Issued_in_2006/Nov092006_01M4212.pdf



    [1] See http://www.thefreedictionary.com/exemplar

    [2] Business Plan (BP) and Economic Analysis (EA) do not have to be good enough to support a “shovel ready” project at this stage.

    [3] Matter of Ho-Compliant BP and an EA based on the accepted “reasonable methodology” from the prior submission(s) which utilizes data from reliable sources in categories from the Project Specific BP.

    [4] I equate this with the EVIDENCE to be handed to the EB-5 Investors in support of their forms I-526 and the later I-829.


    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.

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