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  • Mar 25 - OIG On EB5

    Comment: OIG On EB5
    Yesterday evening, the Office of Inspector General at DHS (OIG) released a report (see news item below) on former USCIS Director Ali Mayorkas (currently DHS Deputy Secretary) regarding several EB5-related matters. When we began reading the 99-page report, we were prepared to write an editorial comment criticizing Mr. Mayorkas. Instead, after a close reading of the report, we find ourselves defending Mr. Mayorkas.

    Let us first note that we believe that corruption in Government is intolerable, and inconsistent with American mores, and inimical to the health of the American Republic. To the extent that OIG is fighting corruption, or even the appearance thereof, we strongly support such efforts. The primary function of a free press is to prevent corruption in Government (a commonplace that is often forgotten by Americans today), and this is the primary reason why the free press is the only industry specifically protected in the US Constitution. Immigration Daily takes its responsibilities seriously, in the tradition of the American trade press, and OIG can count on our unstinting support on any anti-corruption matter.

    However, USCIS is an agency out of control, and the OIG Report provides ample evidence that Mr. Mayorkas's efforts actually brought a measure of sanity to EB5 processing.

    As Mr. Mayorkas points out in his statement appended to the Report: "When I became Director the most common complaint from the public about the agency was that it rendered inconsistent adjudications and failed to adhere to the law" (OIG Report at Page 68, all page references that follow are to the OIG Report). Mr. Mayorkas is undoubtedly correct, and the vast majority of Immigration Daily readers can attest to the arbitrary nature of USCIS adjudications in all immigration matters, too many of which fail to abide by the statute. One of the particularly annoying peculiarities of USCIS (as opposed to most federal agencies) is that it refuses to follow the principle of Res Judicata. Once a federal agency rules on a matter, those regulated by it have a reasonable expectation to rely on the rule as applied, as a settled matter. Instead USCIS believes it can revoke approved petitions at will, and frequently does so, throughout the length and breadth of the immigration system (not just EB5). The OIG Report implies that Mr. Mayorkas's insistence on following precedent is a problem and implies that arbitrary discretion at USCIS is correct national policy: "Another official wrote, 'It appears that [the decision to grant the initial single petition] was a simple mistake. And it is absurd to me to accord deference to simple mistakes'" (Page 28). In other words, OIG believes that USCIS ought to reserve to itself the unfettered discretion to make "simple mistakes" and that turning human lives upside down by revoking approvals, or changing the rules of the game in mid-game is A-OK. The better approach would be for USCIS to avoid making those mistakes in the first place, something not addressed by the OIG Report. Mr. Mayorkas further states:"I should note that, as a general matter, some within USCIS (including some within USCIS leadership) resisted engaging with the public, resisted my creation of the Office of Public Engagement, and resisted the practice I began of posting for public comment our draft policy memoranda. They preferred the insularity that USCIS had exhibited for years" (Page 89). Mr. Mayorkas is undoubtedly correct in that USCIS officials treat immigration case processing as if it were a mystery religion that must be practiced in secret, as Immigration Daily readers experience every day. But let's hear it from the horse's mouth - apparently some at USCIS were irked that an official at the US Department of Commerce even knew who to address a letter to: "Another staff member noted in an email, 'I don't recall seeing these folks opine before and wonder how they even know who to send this to. I fear we are entering a whole new phase of yuck'" (Page 34). We suggest that those at USCIS who want to keep who to address at USCIS as a secret are the yucky ones. The OIG Report seems to support a closed method of functioning at USCIS, which we believe is utterly wrong - if ever an agency needed more transparency, USCIS is it. Immigration Daily is not surprised that Mr. Mayorkas was disappointed by the status quo at USCIS: "Mr. Mayorkas responded that he was involved because he had 'no confidence in the people administering the program'" (Page 21). Naturally, Mr. Mayorkas made changes to "get to yes" (Page 3), and we encourage all future USCIS Directors to strive harder to get to yes much more often.

    Two undoubted achievements stand as Mr. Mayorkas's shining legacy in the EB5 program. Firstly, he brought a form of Res Judicata to EB5, and one which we encourage expanding to all corners of the immigration system: "Unless there is reason to believe that a prior adjudication involved an objective mistake of fact or law, USCIS should not reexamine determinations made earlier in the EB-5 process. Absent a material change in facts, fraud, or willful misrepresentation, USCIS should not re-adjudicate prior USCIS determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable" (Page 29); quoting May 30, 2013 USCIS memo. Imagine a similar principle applied to H1B processing or I-140s! It would bring predictability to employers and immigrants across the land, and immigration attorneys would be seen as heroes who give advice which their clients can count on. Secondly, "[Mr. Mayorkas] restructured the EB-5 program, including relocating the processing center from California to Washington, DC, and he instituted broad new rules that, in the minds of many career USCIS employees, eased the ability of foreign investors to receive residency status (Page 3)... ... "In July 2012, Mr. Mayorkas announced his plans to create a new office at USCIS headquarters for administration of the EB-5 program. EB-5 adjudications were transferred from the California Service Center to a newly created headquarters office, later called the Immigrant Investor Program Office" (Page 32). The problem with many career USCIS employees is that they strive hard to say No, and practice harassing immigrants as a form of entertainment - but the specific problem with the California Service Center is that it has been infiltrated by anti-immigrationists who mask their personal distaste for immigration under the guise of "national security" and are on an anti-immigrant rampage without being checked by USCIS management (many anti-immigrationists at the California Service Center have unionized precisely to frustrate management ability to control their personal onslaughts on hapless immigrants). Naturally, these miscreants run to cry on OIG's shoulder, covering up their blatant prejudice against immigrants under whistle-blower protection.

    Once again, to the extent that OIG is fighting corruption at USCIS, or even the appearance thereof, we will strongly support OIG. However, OIG has clearly gone beyond its expertise in this Report in alleging that Mr. Mayorkas's EB5 innovations are at fault, OIG has failed to understand institutionalized bureaucratic license for arbitrariness at USCIS, and in particular, OIG has assumed that status-quo-ante-Mayorkas at USCIS was somehow pristine or in any way appropriate behavior by a government agency. It is these mistakes by OIG that stand to imperil whatever other merit this Report may have. We suggest that this Report be read narrowly - as to improper influence and not as to improper policy. Read within such narrow confines, OIG has our strong support to dissuade corrupt behavior by career politicians and career bureaucrats alike.

    Share your thoughts by writing to editor@ilw.com.

    Article: How Should Employers with Multiple Legal Entities Enroll in E-Verify? By John Fay

    Blogging: In Defense of the Homeschoolers' Asylum Bill. By Jason Dzubow

    Bloggings By Greg Siskind: Fifth Circuit Sets April 17th to Hear Arguments on Lifting Stay on Executive Actions ; My Summary of the New L-1B Specialized Knowledge Memo

    News: OIG's Report on Employee Complaints About EB-5 Program Management

    News: OIG Concludes Investigation of Employee Complaints Regarding Management of USCIS' EB-5 Program

    News: USCIS Interim Policy Memoranda on L-1B Adjudications Policy

    News: USCIS Posts Updated L-1B Adjudications Policy for Public Feedback

    News: SEVP releases 2015 international student data, launches interactive mapping tool

    Focus: Forming and Operating an EB-5 Regional Center Book

    Lead Editor: Angelo Paparelli; Associate Editor: L. Batya Schwartz Ehrens

    Shipping Now! ILW.COM is pleased to announce Forming and Operating An EB-5 Regional Center: A Guide For Developers and Business Innovators. The lead Editor for this book is Angelo A. Paparelli and the Associate Editor is L. Batya Schwartz Ehrens. Contributing Authors are Louann Bronstein, Laura Danielson, Michael Dunn, Adam Gale, Steve Ganis, Sherman Golden, Matt Gordon, Doug Hauer, Mark Katzoff, Robert F. Loughran, Brandon Meyer, John Neill, John Roth, Reid Thomas, Greg White, and Ben Zou.

    The book outline is as follows:

    Chapter 1. Introduction: Recent Developments, Evolution of EB-5, Regional Centers, Job Creation, Multiple Players etc.

    Chapter 2. Navigating the Application Process: RC Job Creation Requirements, Input-Output Modeling Checklist, Roadmap Including Timeline for Submission, Forms, and Costs Involved, Required Forms, Role of the Business Plan and Plan Writer

    Chapter 3. I-924 Process, Tips and Best Practices: Applying for Regional Center Designation and Amendments, What to Include with the I-924 Form, Additional Considerations, I-924 Checklist, After Regional Center Status Approval, Immigration Requirements and Steps for Investors

    Chapter 4. Sourcing, Vetting, and Attracting Investors: Source of Funds: Understanding and Vetting Your Investors' Background, Use of Escrows in EB-5, Attracting Investors: What Investors Want in an EB-5 Regional Center

    Chapter 5. Choosing the Corporate Structure, Management Issues, and PPM Due Diligence: Organizational Structure - A Key to EB-5 Investor Recruitment, Management of the Job Creating Entity, Experience of the Management Team, PPM Due Diligence

    Chapter 6. Organizational Law and Securities Considerations: Organizational Law Issues in the EB-5 Program, Application of Advanced Organizations Structures in the EB-5 Program, Relevance of U.S. Securities Laws to the EB-5 Marketplace, FINRA Guidance on Applicability of the Suitability Rule to Broker-Dealers Marketing Private Placements, Hot SEC Topics in EB-5 Financings

    Chapter 7. Learning From the History of Risk and Fraud in the EB-5 Regional Center Context: USCIS Revocations of Regional Center Designations for Non-Compliance, Current Immigration Law Regarding Revocation of USCIS Designation, History of Fraud in Regional Centers, Best Practices and Tips to Avoid Common Pitfalls and USCIS Requests for Additional Evidence

    Chapter 8. Risk Management: A Note on Ethical and Risk Management Considerations: Representation of More than One Party in EB-5 Cases

    For additional information, detailed book outline, and author biographies, please see:
    Online: http://www.ilw.com/books/FormingandOperatinganEB5RegionalCenter.shtm
    Fax Form: http://www.ilw.com/books/FormingandOperatinganEB5RegionalCenter.pdf

    Headline: Lawmakers to Question Top Officials about Controversial Visa Program for Wealthy Foreigners Click here
    Headline: Should Barack Obama Enforce Immigration Laws? Click here
    Headline: Federal Appeals Court to Hear Arguments on Immigration Ruling Click here
    Headline: Business group ranks U.S. near last in welcoming skilled immigrants Click here
    Headline: Voices: Cruz not always so sympathetic to immigrants Click here

    Help Wanted: Immigration Paralegal
    Gaithersburg, MD. Glinsmann Immigration, a nationally recognized boutique immigration law firm in Gaithersburg, Maryland, seeks a junior-mid level immigration paralegal. Be part of a legal team known to clients for personal and effective family and business immigration services. Qualified applicants will have a Bachelor's degree, 2+ year's business immigration experience, professional appearance and communication skills, type 50+ WPM and a reliable vehicle. Local applicants preferred. Attorneys and law students need not apply. Competitive salary (depends on experience) and benefits including health insurance contribution, 401k matching, paid leave and holidays. Submit application here.

    Help Wanted: Immigration Paralegal
    New York, NY. An Am Law 100 firm has an immediate need for a junior to mid-level associate in the Business Immigration Department of its NY office. At least one year business immigration law firm experience required. PERM experience is strongly preferred. H-1B, L-1, and E-3 experience a plus. Qualified candidates must have US JD and be a member of the NY bar. Please send resume and transcript to legalrecruiting@kramerlevin.com.

    Help Wanted: Immigration Paralegal
    Philadelphia, PA. Greenberg Traurig has openings in its Philadelphia Office location for junior to mid-level business immigration paralegals. Qualified candidates for the junior paralegal positions should have a minimum of 6 months preparing immigrant visa petitions/Adjustment of Status cases. Qualified candidates for the mid-level paralegal position should have a minimum of 4 years preparing immigrant and nonimmigrant visas (i.e., H, L, TN, E, O, J visas, adjustment of status, consular processing, advance parole, employment authorization documents, PERM etc.). Bachelor's degree is required. The ideal candidates must be very organized, detail-oriented and able to work independently. They must possess excellent computer skills as well as strong written and verbal communication skills. If you would like to work in a fast paced, heavy volume, deadline driven environment alongside a team of experienced immigration attorneys and professionals who are passionate about the practice of Immigration Law, then we want to hear from you! We have all the resources of a large, international law firm while preserving our firm's collegial and collaborative culture. Competitive benefits and compensation package offered. Please send resume and cover letter with salary requirement to Nancy Miller at millerna@gtlaw.com. Greenberg Traurig is an Equal Opportunity Employer.

    Help Wanted: Immigration Attorney
    New York, NY. The Seltzer Firm, PLLC has an opening for an associate to handle a variety of immigration matters for physicians, small businesses, hospitals, universities, and research organizations. You will work with attorneys, have contact with scientists, managers, and other professionals to determine their skills and background, draft documents to establish their eligibility for immigration benefits, and help guide them through the immigration process. JD and at least two years' experience in employment based immigration. Competitive salary and benefits. Email resume and a brief writing sample to hr@theseltzerfirm.com.

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    To submit an article or a news item to Immigration Daily, write to editor@ilw.com. Follow ILW.COM on Twitter.

    Letters of the Week:

    ComingsNGoings: Immigration Reading
    White Backlash: Immigration, Race, and American Politics by Marisa Abrajano - Princeton University Press (March 22, 2015) - Hardcover: 256 pages, ISBN: 0691164436, $24.16 - http://www.amazon.com/gp/product/0691164436


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