Despite the clear rejection of USCIS’ policy, the USCIS
Policy Manual continues 30 to claim that if the proceeds of
a loan are invested in a new commercial enterprise, the
investor must be personally and primarily liable for the
debt and the debt must be secured by assets the investor
owns. 31 While the USCIS Policy Manual is binding on
adjudicators, USCIS also has a legal obligation to follow
the law of a circuit court. 32 In this situation, the court
at issue is the U.S. Court of Appeals for the District of
Columbia Circuit, which also has geographical jurisdiction
over the Immigrant Investor Program Office, because it
is located within the District of Columbia. Therefore, the
court’s decision rejecting USCIS’ interpretation of 8 C.F.R.
§ 204.6(e) should be binding and applicable to future I-526
Unfor tunately, this is not the first instance of USCIS’
refusing to follow applicable law nor the first instance
where USCIS ignores controlling precedent. Until such
time as USCIS clarifies the USCIS Policy Manual, there
will remain a risk that USCIS continues to apply its circuit
court rejected interpretation of 8 C.F.R. § 204.6(e) to future
In re _____, (AAO May 29, 2014), found at https://www.uscis.gov/sites/default/files/err/B7%20-%20
engagement-feb-26-2015/ for a summary of that stakeholder engagement.
Immigrant Investor Program Office (IPO) EB-5 Telephonic Stakeholder Engagement (April 22nd)
IPO Deputy Chief’s Remarks found at https://www.uscis.gov/sites/default/files/document/
USCIS Policy Manual Vol. 6, Part G, Chapter 2, Section A.1.
Matter of Soffici, 22 I&N Dec. 158 (Assoc. Comm. 1998).
8 CFR 204.6(e) states cash and indebtedness are considered “capital”, provided indebtedness is
“…secured by assets owned by the alien investor, provided that the alien investor is personally and
primarily liable and that the assets of the new commercial enterprise upon which the petition is
based are not used to secure any of the indebtedness.”
Supra note 5.
Matter of Izummi, 22 I&N Dec. 169 (Assoc. Comm. 1998) and Matter of Hsiung, 22 I&N Dec. 201
Matter of Izummi, 22 I&N Dec. 169, 177 (Assoc. Comm. 1998)
Supra note 6.
Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 343 (2005)
Supra note 6.
56 FR 60910 (1991) at 60902.
Huashan Zhang, et al v. USCIS, et al, No. 1:15-cv-00995, at 4-5 (D.C. Cir. 2020).
Zhang v. USCIS, 344 F. Supp. 3d 32 (D.D.C. 2018).
Id. at 9.
Id. at 9-10; see also Matter of Hsuing, 22 I&N Dec. 201, 203 (AAO 1998)
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Supra note 17, at 11-12.
Id. at 13.
Id. at 12.
Id. (As the Court noted, the regulation states “the petition “may include, but need not be limited to”
the five categories of evidence set forth within the regulation).
Id. at 18.
Id. at 14.
Supra note 4 (accessed March 1, 2021).
See e.g. NLRB v. Ashkenazy Prop. Mgmt. Corp., 817 F.2d 74 (9th Cir. 1987); Spraic v. United States
R.R. Retirement Bd., 735 F.2d 1208, 1211 (9th Cir. 1984); Ithaca College v. NLRB, 623 F.2d 224, 228
(2d Cir.), cert, denied, 449 U.S. 975 (1980), Matter of K-S-, 20 I&N Dec. 715 (BIA 1993).