However, the evidence referenced by USCIS should be
limited to binding agreements between the parties, as
these are the only controlling documents. Moreover,
ideally, USCIS should be limited to review of evidence
in the record in making a determination regarding the
existence of an impermissible put option.
Reviewing and analyzing non-binding evidence outside
the record is a slippery slope that would provide USCIS
with vir tually unfettered discretion to find fault with
immigrant investor petitions. Consider the scenario where
all agreements between immigrant investors and an NCE
comply with the at risk and no debt requirements, yet
an overseas migration agent incorrectly advertises that
immigrant investors in the NCE have a guaranteed repayment
right from the NCE on a date certain. Presumably, under the
new policy alert, USCIS could construe this advertisement as
evidence of a mandatory redemption agreement and deny
immigrant investor petitions.
Recently, this attorney received an I-924, Application for
Regional Center Designation Under the Immigrant Investor
Program, denial due to a news article, which USCIS said
indicated that there was a “tacit or implicit” agreement between
the immigrant investors and the NCE for immigrant investors
to receive real property in exchange for their investment in the
NCE. In fact, no such agreement existed. While that denial was
not directly in line with the policy alert, it aptly illustrates why
USCIS should be limited in their review of “evidence” suggesting
an impermissible redemption agreement. That is, it allows
USCIS to find an impermissible redemption agreement where
one does not exist.
In sum, USCIS’ new policy alert is another example of USCIS
overreaching. Nothing in Izummi, the EB-5 statute, or USCIS
regulations justifies this new iteration of redemption policy.
As confirmed by the Chang court, “[i]n the end, USCIS has
acted in a manner that conflicts with the plain language
of its regulations, that is not compelled by statutory or
regulator y purpose, that unreasonably stretches the
16
EB5 INVESTORS M AGAZINE
rationale of Matter of Izummi, and that runs counter to the
evidence in the record.”
21
Kristal Ozmun
is a partner in Miller
Mayer’s immigration practice group. Ozmun
focuses her practice on employment-based
immigration with a unique specialization
in the EB-5 preference category. Ozmun
has written and lectured on EB-5 topics
for multiple organizations, including the
American Immigration Lawyers Association,
Invest in the USA, EB5 Investors Magazine
and ILW.
Sources:
1
Matter of Izummi, 22 I&N Dec. 169, 19 Immigr. Rep. B2-32
(INS Assoc. Comm’r, Examinations 1998).
2
Id. at 186.
3
Id. at 183.
4
Id. at 186.
5
See 9 U.S. Dep’t of State, Foreign Affairs Manual 402.9-6(B)(c), https://fam.state.gov/
fam/09FAM/09FAM040209.html (last visited Nov. 19, 2018).
6
8 C.F.R. § 204.6(e).
7
R.L. Investment Limited Partners v. INS, 86 F. Supp. 2d 1014, 1023 (D. Haw. 2000).
8
USCIS Policy Manual, Volume 6 – Immigrants, Part G – Investors, Chapter 2.A.2, https://www.
uscis.gov/policymanual/HTML/PolicyManual-Volume6-PartG.html (last visited Nov. 19, 2018).
9
Id.
10
Id.
11
Id.
12
239 F. Supp. 3d 297 (D.D.C. 2017).
13
Id. at 302.
14
Id. at 307.
15
See id.
16
Chang v. USCIS, 289 F. Supp. 3d 177 (D.D.C. 2018).
17
Id. at 185.
18
Id.
19
USCIS Policy Manual, supra note 8, at n.20 (last visited Nov. 19, 2018).
20
Chang v. USCIS, 289 F. Supp. 3d at 186.
21
Id. at 188.