EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 - Page 80

LINGERING DOUBTS 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 petition adjudications. 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 I-526 petitions. Sources: 1 In re _____, (AAO May 29, 2014), found at https://www.uscis.gov/sites/default/files/err/B7%20-%20 Immigrant%20Petition%20by%20Alien%20Entrepreneur,%20Sec.%20203(b)(5)%20of%20the%20 INA/Decisions_Issued_in_2014/MAY292014_01B7203.pdf 2 See https://www.eb5insights.com/2015/03/02/recap-of-the-uscis-lawful-source-of-funds-public- engagement-feb-26-2015/ for a summary of that stakeholder engagement. 3 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/ outreach-engagements/PED_IPO_Deputy_Chief_Julia_Harrisons_Remarks.pdf 4 USCIS Policy Manual Vol. 6, Part G, Chapter 2, Section A.1. Matter of Soffici, 22 I&N Dec. 158 (Assoc. Comm. 1998). 6 8 CFR 204.6(e) states cash and indebtedness are considered “capital”, provided indebtedness is 5 “…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.” 7 Supra note 5. Id. 9 Matter of Izummi, 22 I&N Dec. 169 (Assoc. Comm. 1998) and Matter of Hsiung, 22 I&N Dec. 201 (AAO 1998). 8 10 https://www.merriam-webster.com/dictionary/indebtedness Matter of Izummi, 22 I&N Dec. 169, 177 (Assoc. Comm. 1998) 12 Supra note 6. 13 Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 343 (2005) 14 Supra note 6. 15 Id. 16 56 FR 60910 (1991) at 60902. 17 Huashan Zhang, et al v. USCIS, et al, No. 1:15-cv-00995, at 4-5 (D.C. Cir. 2020). 11 18 Zhang v. USCIS, 344 F. Supp. 3d 32 (D.D.C. 2018). Id. at 9. 20 Id. at 9-10; see also Matter of Hsuing, 22 I&N Dec. 201, 203 (AAO 1998) 21 My Cousin Vinny, Directed by Jonathan Lynn, performances by Joe Pesci and Marisa Tomei, Palo Vista Productions and Peter V. Miller Investment Corp, 1992. 19 22 Dillon R. Colucci practices and handles U.S. immigration concerns and helps individuals, families, professionals, skilled workers, investors, and businesses live, work, invest, and do business in the United States. Colucci handles a wide range of immigration matters, including nonimmigrant and immigrant employment- based cases. Colucci focuses on EB-5 immigrant investor matters, regularly working with developers, private equity funds, and others on developing new projects that qualify for EB-5 investments. Colucci also counsels foreign nationals on obtaining permanent residency through individual or Regional Center EB-5 investments. 80 EB5 INVESTORS MAGAZINE Supra note 17, at 11-12. Id. at 13. 24 Id. at 12. 25 Id. 26 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). 23 27 Id. at 18. Id. Id. at 14. 30 Supra note 4 (accessed March 1, 2021). 31 Id. 32 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). 28 29