[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Proposed Rules]
[Pages 59927-59950]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24619]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 216 and 245
[CIS No. 2484-09; DHS Docket No. DHS-2009-0029]
RIN 1615-AA90
Treatment of Aliens Whose Employment Creation Immigrant (EB-5)
Petitions Were Approved After January 1, 1995 and Before August 31,
1998
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Proposed rule.
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SUMMARY: The Department of Homeland Security (DHS) is proposing to
amend its regulations governing the employment creation (EB-5)
immigrant classification. This rule only proposes requirements and
procedures for special determinations on the applications and petitions
of qualifying aliens whose employment-creation immigrant petitions were
approved by the former Immigration and Naturalization Service (INS)
after January 1, 1995 and before August 31, 1998. This rule would
implement provisions of the 21st Century Department of Justice
Appropriations Authorization Act.
[[Page 59928]]
DATES: You must submit written comments on or before November 28, 2011.
ADDRESSES: You may submit comments, identified by DHS Docket No. DHS-
2009-0029, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Sunday Aigbe, Chief, Regulatory Products Division,
Office of the Executive Secretariat, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 20 Massachusetts Avenue,
NW., Washington, DC 20529-2020. To ensure proper handling, please
reference DHS Docket No. DHS 2009-0029 on your correspondence. This
mailing address may also be used for paper, disk, or CD-ROM
submissions.
Hand Delivery/Courier: Sunday Aigbe, Chief, Regulatory
Products Division, Office of the Executive Secretariat, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
20 Massachusetts Avenue, NW., Washington, DC 20529-2020. Contact
Telephone Number (202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Alexandra Haskell, Adjudications
Officer, Business, Employment and Trade Services, Service Center
Operations, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue, NW., Mailstop 2060,
Washington, DC 20529-2060, telephone: (202) 272-8410.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Background
A. Employment Creation Immigrant Classification
B. Overview of the Public Law 107-273 Provisions
C. Summary of the Adjudications Required by Public Law 107-273
III. Aliens Eligible To Receive Special Determinations on Their
Petitions To Remove Conditions Under Section 11031 of Public Law
107-273
A. ``Eligible Alien'' Under Section 11031
B. Proposed Regulations
IV. Determinations on Petitions To Remove Conditions Under Section
11031 of Public Law 107-273
A. Initial Determinations
B. Second Stage Determinations
C. Common Definitions Applicable to Removal of Conditions
Determinations
D. Treatment of Spouses and Children Where Eligible Alien Is
Deceased
V. Adjustment of Status Under Section 11032(a) of Public Law 107-273
A. Definitions
B. Procedures for Requesting Consideration for Conditional
Resident Status
C. Determinations on Eligibility
D. Decisions on Granting Conditional Resident Status
VI. Determinations on Petitions To Remove Conditions Under Section
11032 of Public Law 107-273
VII. Treatment of Children
VIII. Regulatory Requirements
A. Regulatory Flexibility Act
B. Unfunded Mandates Reform Act of 1995
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Executive Order 12866
E. Executive Order 13132
F. Executive Order 13175
G. Paperwork Reduction Act
List of Abbreviations
BIA Board of Immigration Appeals
DHS Department of Homeland Security
DOS Department of State
DOJ Department of Justice
ICE U.S. Immigration and Customs Enforcement
INA Immigration and Nationality Act
LPR Lawful Permanent Resident
NTA Notice to Appear
RA Rural Area
TEA Targeted Employment Area
Public Law 107-273 21st Century Department of Justice Appropriations
Authorization Act, Public Law 107-273, 116 Stat. 1758 (2002)
USCIS U.S. Citizenship and Immigration Services
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
proposed rule. The Department of Homeland Security (DHS) also invites
comments that relate to the economic, environmental, or federalism
effects that might result from this proposed rule. Comments that will
provide the most assistance to DHS in developing these procedures will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change.
Instructions: All submissions should include the agency name and
DHS Docket No. DHS-2009-0029. U.S. Citizenship and Immigration Services
(USCIS) will post all comments received without change to http://www.regulations.gov, including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
II. Background
A. Employment Creation Immigrant Classification
The employment creation immigrant classification is one of five
employment-related bases for obtaining permanent residence in the
United States. See Immigration and Nationality Act (INA) section
203(b)(1)-(5), 8 U.S.C. 1153(b)(1)-(5). DHS and the affected community
commonly refer to this category as the ``EB-5'' immigrant
classification because it is the fifth employment-related basis listed
in the INA. The EB-5 immigrant classification allows qualifying aliens,
and any accompanying or following to join spouses and children, to
obtain lawful permanent resident (LPR) status if the qualifying aliens
have invested, or are actively in the process of investing, $1 million
in a new commercial enterprise. See INA sections 203(b)(5)(A) and (C),
8 U.S.C. 1153(b)(5)(A) and (C). To qualify, the alien's investment must
benefit the U.S. economy and create full-time jobs for 10 or more
qualifying employees. INA section 203(b)(5)(A)(ii), 8 U.S.C.
1153(B)(5)(A)(ii). If the investment is in a Rural Area (RA) or an area
that has experienced high unemployment (i.e., a Targeted Employment
Area (TEA)), the required capital investment amount is $500,000 rather
than $1 million. INA section 203(b)(5)(C)(ii), 8 U.S.C.
1153(b)(5)(C)(ii); 8 CFR 204.6(f)(2). In addition, under a pilot
program established by statute, qualifying aliens may meet the job
creation requirement through the creation of 10 direct or indirect
jobs. See Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 1993, section 610(c), Public
Law 102-395, 106 Stat. 1828 (1992), 8 U.S.C. 1153 note. To get the
benefit of the indirect job creation requirement, an alien must make a
qualifying investment within a regional center (defined in 8 CFR
204.6(e)) approved by USCIS for participation in the pilot program.
This pilot program is set to expire on September 30, 2012. See
Department of Homeland Security Appropriations Act, 2010, section 548,
Public Law 111-83, 123 Stat. 2142, 2177 (2009), 8 U.S.C. 1153 note.
Obtaining lawful permanent residence under the EB-5 immigrant
classification is a multi-step process. First, the alien must file and
obtain approval of an Immigrant Petition by Alien Entrepreneur, Form I-
526 (or successor form). See 8 CFR 204.6(a). Second, the alien must
obtain conditional permanent resident status on the basis of the
approved Form I-526 petition. If the alien resides in the United
States, he
[[Page 59929]]
or she may apply to become a lawful permanent resident by submitting an
Application to Register Permanent Residence or Adjust Status, Form I-
485 (or successor form). See 8 CFR 245.1(a). If the alien resides
outside of the United States or is ineligible for lawful permanent
residence through the filing of a Form I-485, then he or she must
obtain a Department of State (DOS) issued immigrant visa to gain
admission to the United States as a permanent resident on a conditional
basis. See INA section 211(a)(1), 8 U.S.C. 1181(a)(1). Once an alien
has obtained conditional resident status, the alien is called an
``alien entrepreneur.'' INA section 216A(f)(1), 8 U.S.C. 1186b(f)(1).
The last procedural step is triggered 90 days before the second
anniversary of the alien entrepreneur's conditional resident status.
INA section 216A(d)(2), 8 U.S.C. 1186b(d)(2). During this 90-day
period, the alien entrepreneur must submit to USCIS a Petition by
Entrepreneur to Remove Conditions, Form I-829 (or successor form). See
8 CFR 216.6(a)(1). Failure to timely submit Form I-829, or to obtain a
removal of conditions through the approval of a Form I-829, results in
termination of conditional resident status and placement of the alien
and any accompanying dependents in removal proceedings. See 8 CFR
216.6(a)(5). Determinations by USCIS on Form I-829 are not appealable;
however, an immigration judge may review the determinations in removal
proceedings. See INA section 216A(c)(3)(D), 8 U.S.C. 1186b(c)(3)(D).
The Board of Immigration Appeals (BIA) hears appeals from immigration
judge decisions. See 8 CFR 1003.1(b).
B. Overview of the Public Law 107-273 EB-5 Provisions
In 1998, the Immigration and Naturalization Service (INS), the
predecessor agency to USCIS, issued four precedent decisions addressing
the eligibility requirements for EB-5 petitions.\1\ The publication of
these precedent decisions resulted in litigation over their
applicability to cases at various stages of adjudication.\2\ Some of
this litigation continues today.
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\1\ Matter of Soffici, 22 I&N Dec. 158 (INS Assoc. Comm'r 1998);
Matter of Izummi, 22 I&N Dec. 169 (INS Assoc. Comm'r 1998); Matter
of Hsiung, 22 I&N Dec. 201 (INS Assoc. Comm'r 1998); Matter of Ho,
22 I&N Dec. 206 (INS Assoc. Comm'r 1998).
\2\ E.g., Am. Exp. Group Ltd. P'ship v. United States, No.
02:06-02199 (D. S.C.); Chang v. United States, No. 02:99-cv-10518-
GHK-AJW (C.D. Cal.); Sang Geun An v. United States, No. C03-3184p
(W.D. Wash.).
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In 2002, Congress enacted special legislation to provide a small
group of aliens whose EB-5-related petitions or applications were
pending at the time of the precedent decisions with an opportunity to
perfect their original investments or make additional business
investments in the United States and create the requisite jobs so that
they can remain in the United States as lawful permanent residents. See
21st Century Department of Justice Appropriations Authorization Act,
Public Law 107-273, div. C, tit. I, Sec. Sec. 11031-11034, 116 Stat.
1758 (2002) (8 U.S.C. 1186b note) (Pub. L. 107-273). This special
legislation only applies to ``eligible aliens'' for whom the INS
approved a Form I-526 between January 1, 1995 and August 31, 1998, and
who pursuant to such approval either: (1) Obtained permanent resident
status on a conditional basis and filed a timely Form I-829 before
November 2, 2002; or (2) filed an application for adjustment of status
or an application for an immigrant visa before November 2, 2002. Public
Law 107-273 does not apply to any other aliens who are admitted or have
been admitted to the United States pursuant to the EB-5 visa program.
Public Law 107-273 requires publication of implementing
regulations. Until implementing regulations are effective, USCIS may
not take adverse action against ``eligible aliens.'' See Public Law
107-273 at section 11033. Accordingly, DHS is proposing implementing
regulations, but only as applied to the adjudicatory and prosecutory
functions of USCIS and U.S. Immigration and Customs Enforcement (ICE).
C. Summary of the Adjudications Required by Public Law 107-273
Public Law 107-273 contains very detailed requirements for the
review and adjudication of pending applications and petitions for
eligible aliens. Section 11031 describes the procedures applicable to
eligible aliens who obtained lawful permanent resident status on a
conditional basis but who have not had their conditions removed.
Section 11032 describes the procedures applicable to eligible aliens
whose applications for permanent residence on a conditional basis had
not been approved at the time of enactment of Public Law 107-273.
For eligible aliens with pending I-829 petitions, section 11031 of
Public Law 107-273 requires the Secretary of Homeland Security
(Secretary) to make an initial determination whether the Form I-829 as
filed by the eligible alien is approvable. If the petition is
approvable, the conditions on the alien's permanent residence will be
removed. If the petition is determined to be deficient following the
initial determination, the eligible alien and the accompanying spouse
and children of the alien will be granted a second two-year period of
conditional residence unless the adverse determination is based on a
finding of material misrepresentation. During this period of
conditional residence, the eligible alien has an opportunity to remedy
the deficiencies in his or her petition and make additional investments
in the commercial enterprise listed on the pending Form I-829 and/or in
other commercial enterprises to comply with the capital investment and
job creation requirements of the EB-5 program. At the end of this two-
year period, the eligible alien must file a new Form I-829 petition
with the Secretary of Homeland Security seeking to remove the
conditions from his or her permanent residence. If the eligible alien's
second petition is approvable, the conditional basis of the alien's
permanent residence and that of the alien's accompanying spouse and
children will be removed. If an eligible alien's second petition is
determined to be deficient, the eligible alien's permanent resident
status and that of the alien's accompanying spouse and children will be
terminated. If, at any stage of the process, it is determined that an
eligible alien has made a material misrepresentation on any of the
petitions, the alien's status and that of the alien's accompanying
spouse or children may be terminated. Finally, section 11031 provides
for administrative and judicial review of each of the statutory
determinations.
Section 11032 of Public Law 107-273 provides for the approval of an
eligible alien's application for adjustment of status or an immigrant
visa and the grant of a two-year period of conditional residence. At
the completion of the two-year period of conditional residence,
eligible aliens must file Form I-829 to remove the conditions from
their permanent residence and that of their accompanying spouse and
children. Although the procedures used to adjudicate the petitions
filed by eligible aliens under section 11032 of Public Law 107-273 are
governed by INA section 216A, substantial compliance with the capital
investment and job creation requirements need not be related to the
commercial enterprise described in their Forms I-526. Rather, eligible
aliens may submit evidence related to capital investment and job
creation in any commercial enterprise in the United States. If an
eligible alien is determined to have complied with the capital
investment and job creation
[[Page 59930]]
requirements of the EB-5 program, the conditional basis of the alien's
permanent residence and that of the alien's accompanying spouse and
children will be removed. If it is determined that an eligible alien
has made a material misrepresentation or has failed to satisfy the
capital investment and/or job creation requirements of the EB-5
program, the alien's status and that of his or her accompanying spouse
and children will be terminated, subject to review in removal
proceedings.
The remainder of the Supplementary Information describes sections
11031 and 11032 of Public Law 107-273 in more detail and explains the
corresponding proposed amendments to DHS regulations.
III. Aliens Eligible To Receive Special Determinations on Their
Petitions To Remove Conditions Under Section 11031 of Public Law 107-
273
A. ``Eligible Alien'' Under Section 11031
As summarized above, a conditional resident must fall within the
statutory definition of ``eligible alien'' under sections 11031(b)(1)
and (2) of Public Law 107-273 to receive the determinations on a
previously denied or currently pending Form I-829 required by section
11031(c) of Public Law 107-273. The determinations required by section
11031(c) of Public Law 107-273 (hereinafter ``section 11031(c)
determinations'') are comprised of an initial determination and a
second determination. Public Law 107-273 at section 11031(c). An
``eligible alien'' is an alien who obtained LPR status on a conditional
basis as a result of filing a Form I-526 petition pursuant to section
203(b)(5) of the INA, 8 U.S.C. 1153(b)(5), that was approved after
January 1, 1995 and before August 31, 1998. See Public Law 107-273 at
sections 11031(b)(1)(A)&(B). Such alien must also have timely filed a
Form I-829 pursuant to section 216A of the INA prior to November 2,
2002, the date of enactment of Public Law 107-273. See Public Law 107-
273 at section 11031(b)(1)(C). A ``timely-filed'' Form I-829 is one
that an alien filed during the 90-day period before the second
anniversary of the alien's lawful admission for permanent residence.
See INA section 216A(d)(2)(A), 8 U.S.C. 1186b(d)(2)(A); 8 CFR
216.6(a)(1).
In the event that an otherwise eligible alien's timely filed Form
I-829 was denied prior to November 2, 2002, the alien still may be
deemed to be eligible if he or she filed a motion to reopen not later
than January 1, 2003. Public Law 107-273 at section 11031(b)(2)(A). If
such an eligible alien is no longer physically present in the United
States, the Secretary of Homeland Security, if necessary, may parole
the alien into the United States to obtain the section 11031(c)
determinations. Public Law 107-273 at section 11031(b)(2)(B). The
Secretary of Homeland Security, however, may not parole any alien into
the United States who is inadmissible or deportable on any grounds, or
if the alien's Form I-829 was denied due to a material
misrepresentation of any of the facts and information described in INA
section 216A(d)(1), 8 U.S.C. 1186b(d)(1), and alleged in the Form I-829
petition with respect to a commercial enterprise. Public Law 107-273 at
section 11031(b)(2)(B)(i)-(ii). Under these circumstances, USCIS does
not consider such alien ``eligible'' for the section 11031(c)
determinations. In making the material misrepresentation determination,
the applicable ``facts and information'' include, but are not limited
to:
(A) Whether the alien established the commercial enterprise(s)
under consideration; and
(B) Whether the alien invested or was actively in the process of
investing the requisite capital.
(C) The alien sustained the actions described in (A) and (B)
throughout the period of the alien's residence in the United States.
See INA section 216A(d)(1), 8 U.S.C. 1186b(d)(1) (as in effect prior to
the enactment of Public Law 107-273 on Nov. 2, 2002).
A motion to reopen filed pursuant to Public Law 107-273 by
otherwise eligible aliens who are in deportation or removal proceedings
by reason of the denial of the I-829 petition also constitutes a motion
to reopen proceedings. See Public Law 107-273 at section
11031(b)(2)(C). The scope of deportation or removal proceedings
reopened under Public Law 107-273 is limited to whether:
Any order of deportation or removal should be vacated, and
The alien should be granted the status of an alien
lawfully admitted for permanent residence unconditionally or on a
conditional basis, by reason of the section 11031(c) determinations
made by the Secretary of Homeland Security.
See Public Law 107-273 at section 1131(b)(2)(C).
B. Proposed Regulations
The statutory provisions of Public Law 107-273 are detailed;
therefore, this proposed rule does not restate them. This proposed rule
focuses primarily on limitations on eligibility and eligibility of
aliens with denied petitions.
1. Limitations on Eligibility
Under this rulemaking, in accordance with section 11031(b)(2)(C) of
Public Law 107-273, aliens who are in deportation or removal
proceedings and who are deportable or removable on grounds other than
the denied Form I-829 would be ineligible for special determinations on
their Form I-829 applications under Public Law 107-273. Proposed 8 CFR
216.7(a)(2)(i). Such aliens are statutorily barred from obtaining
benefits under this law pursuant to section 11031(b)(2)(C) of Public
Law 107-273.
Since the enactment of Public Law 107-273, DHS has received and
acknowledged requests from several aliens eligible to receive section
11031(c) determinations to withdraw their Forms I-829. In other
instances, some aliens have executed Abandonment of Lawful Permanent
Residence Status, Form I-407 (or successor form). Either the withdrawal
of the Form I-829 or the execution of the Form I-407 constitutes the
voluntary abandonment of the alien's conditional lawful residence
status. In addition, some aliens may have since acquired lawful
permanent residence or another immigration status on a different basis.
Public Law 107-273 does not address these scenarios. This rule proposes
to exclude such aliens from ``eligibility'' for section 11031(c)
determinations. Proposed 8 CFR 216.7(a)(2)(ii) and (iii). The actions
of such aliens demonstrate that these aliens are no longer interested
in pursuing LPR status based on the EB-5 immigrant classification under
the provisions of Public Law 107-273. In order to be eligible to obtain
status by another means, an eligible alien would have had to abandon
status as an alien admitted for permanent residence on a conditional
basis or have had such status terminated by USCIS. See INA section
245(f), 8 U.S.C. 1255(f); 8 CFR 245.1(c)(5); see also Matter of
Stockwell, 20 I&N Dec. 309, 311-12 (BIA 1991) (bar to adjustment of
status applicable to marriage-based conditional residents inapplicable
if conditional resident status has been terminated).
For these reasons, DHS deems otherwise eligible aliens who have
withdrawn their Forms I-829, executed Form I-407, or adjusted to LPR
status on other grounds to have abandoned any claim to benefits under
Public Law 107-273. DHS is proposing in this rule to exclude these
aliens from the definition of eligible alien.
[[Page 59931]]
2. Aliens With Denied Petitions
Aliens who timely filed a Form I-829 petition that was denied on
the merits prior to November 2, 2002, may still be deemed an ``eligible
alien.'' See Public Law 107-273 at section 11031(b)(2)(A) (referencing
INA section 216A(c)(3)(C), 8 U.S.C. 1186b(c)(3)(C) (discussing adverse
determinations on petitions to remove conditions)). DHS proposes to
define a denied petition as the decision by an INS director to deny the
petition on the merits, and not denials resulting from review of a
director's decision in deportation or removal proceedings. See proposed
8 CFR 216.7(a)(1). This interpretation is supported by section
11031(b)(2)(C) of Public Law 107-273, which governs treatment of
eligible aliens in deportation or removal proceedings. That provision
refers to a denied petition as one that was made prior to the
initiation of deportation or removal proceedings, which necessarily
means a denial made by INS. See Public Law 107-273 at section
11031(b)(2)(C).
Note that an alien whose Form I-829 was denied on procedural
grounds does not qualify as an ``eligible alien.'' See Public Law 107-
273 section 11031(b)(2)(A) (limiting qualifying denied petitions that
are reopened to those denied on the merits). Procedural grounds for
denying Form I-829 include failure to file Form I-829 timely and the
failure of the alien to appear for an interview. See 8 CFR 216.6(a)(5)
and (b)(3). If an alien's failure to timely file Form I-829 has been
excused by INS or USCIS based on his or her showing that the failure
was for good cause and due to extenuating circumstances or an alien's
failure to appear for an interview has been excused by INS or USCIS
based on his or her showing of good cause, then the limitations on
eligibility will not apply. Once excused, the alien resumes status as a
conditional resident with a pending Form I-829, and is an ``eligible
alien'' under Public Law 107-273.
Section 11031(b)(2)(A) of Public Law 107-273 required aliens with
denied petitions to file a motion to reopen by January 1, 2003 to
obtain the benefits offered by the statute. DHS has identified 31 such
motions to reopen. DHS has granted such motions and the petitions are
now considered to be pending. This rule does not further address
motions to reopen since the statutory time period for filing such
motions has expired.
Of the 31 motions to reopen that DHS received, none appear to have
been filed by aliens who were not physically present in the United
States. Moreover, in its review of all Public Law 107-273 petitions,
DHS has not found that physical presence of the alien is necessary in
order for USCIS to make its initial determinations. Therefore, this
rule does not propose provisions governing the parole of overseas
aliens with denied Forms I-829.
DHS considers a motion to reopen a denied Form I-829 pursuant to
section 11031(b)(2)(A) of Public Law 107-273 to be the same as a motion
to reopen deportation or removal proceedings. Public Law 107-273 at
section 11031(b)(2)(C). Immigration courts have terminated or
administratively closed deportation or removal proceedings in these
cases to give USCIS the opportunity to make its section 11031(c)
determinations After USCIS makes these determinations, section
11031(b)(2)(C) of Public Law 107-273 requires that the Attorney General
must make the decision to grant LPR status conditionally or
unconditionally in proceedings. Therefore, after USCIS makes the
initial 11031(c) determination, DHS must file a motion to re-calendar
the proceedings. Proposed 8 CFR 216.7(a)(3). The immigration judge will
take further action on the alien's status in deportation or removal
proceedings, including, as appropriate:
Removal of the conditions and termination of proceedings,
Extension of conditional resident status pursuant to
section 11031(c)(1)(F)(ii), and
Administrative closure so that jurisdiction shifts back to
DHS for the second 11031(c) determination.
IV. Determinations on Petitions To Remove Conditions Under Section
11031 of Public Law 107-273
Public Law 107-273 requires the Secretary of Homeland Security to
make an ``initial determination'' on the pending Forms I-829 of
eligible aliens. The Secretary also must make a ``second
determination'' for certain eligible aliens who file new petitions to
remove conditions 2 years later. See Public Law 107-273 at sections
11031(a) and 11031(c).
A. Initial Determinations
Under section 11031(c)(1)(A) of Public Law 107-273, the Secretary
of Homeland Security must make an initial determination on each
eligible alien's Form I-829 regarding three issues. First, the
Secretary must determine whether the Form I-829 contains any material
misrepresentation in the facts and information described in INA section
216A(d)(1), 8 U.S.C. 1186b(d)(1), and alleged in the Form I-829 with
respect to a commercial enterprise. The facts and information described
in INA section 216A(d)(1), 8 U.S.C. 1186b(d)(1), pertain to the
establishment of an investment in the commercial enterprise for the
duration of the conditional resident period. This determination
regarding material misrepresentation must be made without regard to
whether such enterprise is a limited partnership, or whether the alien
entered the enterprise after its formation.
Second, the Secretary must determine whether the commercial
enterprise created full-time jobs for 10 or more qualifying employees.
The jobs have to exist or existed on any of the following dates:
The date on which the Form I-829 was filed;
Six months after that date; or
The date on which DHS makes the determination.
The creation of 10 or more direct or indirect jobs will satisfy
this requirement if the alien has made the required investment within
an approved regional center. See Public Law 107-273 at section
11031(c)(1)(B). If the new commercial enterprise is a troubled
business, then the law provides that the Secretary of Homeland Security
instead must determine whether, on any of the three dates described
above, the number of employees of the business is no fewer than the
number of employees that existed before the alien made his or her
capital investment in the business. Id. at section 11031(c)(1)(C).
Third, the Secretary must determine whether the eligible alien is
in substantial compliance with the capital investment requirement
described in INA section 216A(d)(1)(B), 8 U.S.C. 1186b(d)(1)(B), on any
of the three dates listed above.
If the Secretary determines that the alien has met the job creation
and capital investment requirements outlined by Public Law 107-273, and
there is no material misrepresentation with respect to Form I-829, the
Secretary of Homeland Security must notify the alien and, if the alien
is not in deportation or removal proceedings, remove the conditional
basis of the alien's status as of the second anniversary of the alien's
lawful admission for permanent residence. The Secretary of Homeland
Security will also remove the conditional status of the alien's
accompanying spouse and children as of that same date. See Public Law
107-273 at section 11031(c)(1)(E); see also proposed 8 CFR
216.7(a)(4)(i). For aliens in deportation or removal proceedings,
further action will be taken in deportation or removal proceedings. See
Public Law 107-273 at section 11031(b)(2)(C).
[[Page 59932]]
If the Secretary of Homeland Security makes an adverse
determination regarding material misrepresentation, job creation, or
capital investment, the Secretary must provide the alien with notice of
this adverse determination and an opportunity to submit evidence to
rebut the adverse determination. Id. at section 11031(c)(1)(F)(i). If
the Secretary reverses all adverse determinations, the Secretary will
notify the alien and his or her accompanying spouse and children that
the adverse determination has been reversed. The Secretary will then
remove the conditions of the alien, accompanying spouse, and children,
effective as of the second anniversary of the alien's lawful admission
for permanent residence if the alien is not in removal proceedings. Id.
at sections 11031(c)(1)(F)(i) and 11031(b)(2)(C); see also proposed 8
CFR 216.7(a)(4)(i) and (iii). If the alien is in removal proceedings,
DHS will move to recalendar the removal proceedings for appropriate
action. Id.
If no such reversal takes place, the Secretary of Homeland Security
(or the Attorney General if the alien is in deportation or removal
proceedings) must continue the conditional basis of the alien's
permanent resident status and that of the alien's spouse and children
for a two-year period, but only if the adverse determination is based
upon the capital investment or job creation requirements and does not
involve a finding of material misrepresentation. Public Law 107-273 at
sections 11031(c)(1)(F)(ii) and 11031(b)(2)(C). When an adverse
determination is based upon the existence of a material
misrepresentation, and the alien's rebuttal does not lead to reversal
of that determination, the alien's conditional resident status and that
of the alien's spouse and children must be terminated, subject to
review of the adverse determination in deportation or removal
proceedings. Id. at sections 11031(c)(1)(F)(iii) and 11031(d); see also
proposed 8 CFR 216.7(a)(4)(vi)(A).
For any adverse determination, and prior to a subsequent decision
regarding the alien's status, the alien may seek administrative review
of the determination by the BIA. If the BIA denies the petition, the
alien may seek judicial review. During any period of administrative or
judicial review, the alien's conditional residence, along with the
conditional residence of the alien's accompanying spouse and children,
would continue. Public Law 107-273 at section 11031(c)(1)(F)(iv). The
law provides that the procedures for judicial review are the same as
the procedures for the judicial review of a final order of removal. See
INA section 242(a)(1), 8 U.S.C. 1252(a)(1).
In this rule, USCIS is proposing several steps leading up to its
initial determination. USCIS would first make a determination on the
initial Form I-829 pursuant to section 11031(c)(1) of Public Law 107-
273 based on the evidence previously submitted with Form I-829. USCIS
would not request additional evidence or an interview. See proposed 8
CFR 216.7(a)(4). While much time has passed since the passage of Public
Law 107-273 in November of 2002, USCIS will be able to process these
cases more efficiently if it first makes determinations on the evidence
in the record rather than implementing a time-consuming request for
evidence process before making a decision. Because Public Law 107-273
requires a rebuttal process in case of an adverse determination, USCIS
believes that this rebuttal process is the most efficient and
appropriate means to allow for the updating of information in the
record.
If USCIS makes a favorable determination such that the conditions
on permanent resident status should be removed, USCIS would provide
written notice to the alien and, unless the alien is in removal or
deportation proceedings, remove conditions. Proposed 8 CFR
216.7(a)(4)(i). If USCIS makes an adverse determination, the alien will
be afforded an opportunity for the alien to update the evidence in the
record. Following is a discussion of USCIS's specific proposals in this
rulemaking.
1. Favorable Initial Determinations
Eligible aliens may receive removal of the conditions on their
permanent resident status if the Secretary of Homeland Security
determines that there was no material misrepresentation on the Form I-
829 and that the job creation and capital investment requirements have
been met. Public Law 107-273 at section 11031(c)(1)(E). For eligible
aliens who are in deportation or removal proceedings or who are
overseas, additional steps may apply to effect the removal of
conditions.
a. Aliens in Deportation or Removal Proceedings
For aliens in deportation or removal proceedings, the decision to
remove conditions must take place in those proceedings. Public Law 107-
273 at section 11031(b)(2)(C). Therefore, after the Secretary of
Homeland Security makes a favorable determination on an eligible
alien's Form I-829, jurisdiction shifts back to the immigration judge
for a decision on whether the alien's conditions may be removed. To
shift jurisdiction back to the immigration judge, this rule provides
that DHS must file a motion to re-calendar proceedings with the
immigration judge. Proposed 8 CFR 216.7(a)(4)(i). The motion to re-
calendar serves to reopen the proceedings, which previously were
administratively closed. The immigration judge will issue an order
terminating proceedings or vacating the order of deportation or removal
and remove the conditions from an eligible alien's permanent resident
status where the alien is not inadmissible or deportable on other
grounds. Public Law 107-273 at section 11031(b)(2)(C). If the
immigration judge determines that removal of conditions is not
warranted, such as when the alien is found to be inadmissible, then
deportation or removal proceedings will continue.
b. Overseas Aliens Who Were Not Paroled
Public Law 107-273 is silent with respect to the procedures for
removing the conditions on the permanent status of overseas aliens who
were not paroled into the United States for the special determination
process. DHS is not aware of any potential eligible aliens currently
residing abroad and has not, therefore, included any procedures for
parole in this rulemaking. Should such a case arise, USCIS will notify
the overseas alien of the favorable determination and removal of
conditions and direct such alien to the appropriate U.S. consular
office for the procedures by which he or she can secure documentation
for admission to the United States. Note that if an alien with
conditional resident status has been absent from the United States for
180 days or more or departed from the United States while in removal
proceedings, he or she will be subject to inspection and, therefore, a
determination of admissibility. INA section 101(a)(13)(C), 8 U.S.C.
1101(a)(13)(C).
2. Adverse Initial Determinations
a. Opportunity To Provide Rebuttal Evidence
USCIS is proposing in this rule a 12-week period within which an
alien may submit evidence to disprove the adverse determination(s).
Proposed 8 CFR 216.7(a)(4)(ii). In rebuttal, aliens would be able to
submit evidence of investments in and job creation resulting from
enterprises other than the commercial enterprise named in the initial
Form I-829 and qualifying Form I-526. Id. USCIS would require such
aliens to request consideration of investments in and job creation
[[Page 59933]]
resulting from additional commercial enterprises by filing a new
Supplement to the Petition to Remove Conditions. Id.
Public Law 107-273 represents a significant departure from the
strict rules normally applicable to the removal of conditions from an
alien entrepreneur's permanent resident status. This legislation
applies to a very limited group of individuals whose Form I-829
petitions were either pending at the time of the enactment of Public
Law 107-273 or were reopened pursuant to the terms of that law. It was
intended to redefine the standards applicable to this limited group and
provide these eligible aliens who had failed to comply with these
strict requirements of the existing EB-5 statutes and regulations an
opportunity to cure the deficiencies of their initial petitions.
Section 11031(c)(1)(A) does not preclude the consideration of capital
investment in or job creation from commercial enterprises not
identified in the initial Form I-829. Accordingly, consistent with the
unique provisions and ameliorative purpose of Public Law 107-273, DHS
will consider evidence of additional, qualifying investments and
resulting job creation at the initial determination stage under section
11031(c)(1)(A), an option that ordinarily is not available to EB-5
conditional resident aliens. Additional investments and resulting job
creation must be documented by completing a new supplement to Form I-
829 and providing the evidence described in proposed 8 CFR
216.7(a)(5)(i)(C). See proposed 8 CFR 216.7(a)(4)(ii).
As more fully described below, permitting consideration of evidence
of investment in commercial enterprises that are not listed in the
initial Form I-829 could create instances where an eligible alien has
made capital investments in commercial enterprises that are located
within a targeted employment area (TEA), while also making capital
investments in commercial enterprises not located in a TEA which
require at least $1,000,000 in capital investment. Under these
circumstances, the pro-rating process described at proposed 8 CFR
216.7(a)(5)(iii) will be applied to determine the total amount of
capital that must be invested in such instances.
The 12-week period for submitting rebuttal evidence, including the
Supplement for investments in additional commercial enterprises (if
applicable), would run from the date of an adverse determination
notice. Id. The proposed timeframe would provide a substantial amount
of time in which eligible aliens may submit rebuttal evidence. It also
is consistent with the timeframe for submitting additional evidence
currently prescribed in 8 CFR 103.2(b)(8)(iv) and that is generally
applicable to petitions and applications for immigration benefits.
Whether or not the alien submits rebuttal evidence during the 12-
week period, USCIS would render a decision on whether to reverse its
adverse determination(s). Proposed 8 CFR 216.7(a)(4)(ii). DHS is
proposing this requirement given the age of the petitions and evidence
that USCIS will be reviewing and because treatment of the alien's
conditional resident status (if USCIS determines that it will not
reverse the adverse determination(s)) depends on the basis of the
adverse determination. If the adverse determination is based on
material misrepresentation, Public Law 107-273 requires termination of
conditional resident status. Public Law 107-273 at section
11031(c)(1)(F)(iii). If the adverse determination(s) is based on
failure to meet the job creation or capital investment requirements,
Public Law 107-273 requires continuation of conditional resident
status. Public Law 107-273 at section 11031(c)(1)(F)(ii). Given these
considerations, DHS prefers to proceed with its initial determination
cautiously.
Public Law 107-273 requires that if all adverse determination(s)
are reversed based on the rebuttal, then the alien must receive notice
of this reversal. Public Law 107-273 at section 11031(c)(1)(F)(i). This
rule proposes that USCIS must send written notice of its decision
whether USCIS reverses the adverse determination or does not reverse
the adverse determinations. Proposed 8 CFR 216.7(a)(4)(iii). The date
of the notice would determine the period for administrative or judicial
appeal of USCIS' adverse determinations, and when the continuation of
conditional residence begins for purposes of a second determination.
If USCIS determines that reversal of adverse determinations is
appropriate, then the procedures proposed for favorable determinations
at proposed 8 CFR 216.7(a)(4)(i) would apply. If USCIS determines that
reversal of adverse determination is not appropriate, then the
procedures that apply would depend on whether the alien is or is not in
deportation or removal proceedings. Id. If the alien is in deportation
or removal proceedings, the decision on the alien's conditional
resident status must be made by the immigration judge in proceedings.
Proposed 8 CFR 216.7(a)(4)(iv). Therefore, DHS would need to file a
motion to re-calendar proceedings. Id. If the alien is not in
deportation or removal proceedings, USCIS would extend the conditional
residence of an eligible alien (and that of the alien's spouse and/or
children if their status was obtained under section 216A of the Act)
for a two-year period upon an adverse determination that is not based
on a material misrepresentation. Proposed 8 CFR 216.7(a)(4)(v)(B).
Regardless of whether the alien is in proceedings or not, DHS is
proposing to require that the notice affirming the adverse
determinations must contain the reasons for the decision, as well as
USCIS's determination (if applicable) regarding the number of
qualifying jobs created, amount of capital investment made, and the
date described in section 11031(c)(1)(D) of Public Law 107-273 that
USCIS applied to each determination. Proposed 8 CFR 216.7(a)(4)(iii).
In the case of multiple investors, jobs would be allocated among the
investors. Id.
b. Appellate Review of Adverse Determinations
As required by section 11031(c)(1)(F)(iv) of Public Law 107-273, an
alien may seek administrative review with the BIA of an adverse
determination, and during the period in which the adverse
determinations are pending with the BIA or circuit court, this rule
provides that the conditional basis of the alien's permanent resident
status and that of any accompanying spouse and/or children be continued
automatically. See proposed 8 CFR 216.7(a)(4)(vi). This rule implements
the authority of both DHS and the Department of Justice (DOJ) to
continue status most efficiently by granting continued status
automatically. To receive evidence of the continuation of status,
however, aliens would need to appear at a USCIS office as they do now
in keeping with current USCIS policies applicable to conditional
residents. See Chapter 25.2(c) of the Adjudicator's Field Manual.\3\
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\3\ The USCIS Adjudicator's Field Manual is available at http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm.
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c. Continuation of Conditional Residence
Section 11031(c)(1)(F)(ii) of Public Law 107-273 provides for the
continuation of conditional resident status for an additional two-year
period after an adverse determination based on failure of the alien to
meet the job
[[Page 59934]]
creation and capital investment requirements if rebuttal evidence does
not result in reversal of the adverse determination. Reversal may also
occur following review by the BIA or the federal courts. See Public Law
107-243 section 11031(c)(1)(F)(iv).
Consistent with removal of conditions following favorable
determinations, this rule proposes that either USCIS or an immigration
judge (if the alien is in deportation or removal proceedings) may
continue conditional residence for a new two-year period. See proposed
8 CFR 216.7(a)(4)(v). For aliens who are not in deportation or removal
proceedings, this rule proposes that USCIS would continue conditional
resident status and send notice of the continuation of status. See
proposed 8 CFR 216.7(a)(4)(v)(B). For aliens in deportation or removal
proceedings, proceedings would have been administratively closed
pursuant to proposed 8 CFR 216.7(a)(3) in order for USCIS to have
jurisdiction to render its determinations. Therefore, to shift
jurisdiction from USCIS back to the immigration judge for a decision on
whether continuation of conditional residence is appropriate, the rule
proposes that DHS (USCIS or ICE) file a motion to re-calendar
proceedings with the immigration judge. Proposed 8 CFR 216.7(a)(4)(iv).
The starting date for the new two-year period of conditional
residence will vary, depending upon several factors. This rule proposes
that if the alien is not in deportation or removal proceedings, the
date of USCIS's decision following receipt of rebuttal evidence, or, if
no evidence is submitted, the date of the close of the rebuttal period,
would trigger the new two-year period. Proposed 8 CFR
216.7(a)(4)(v)(C). However, if the alien seeks review of the adverse
USCIS determinations by the BIA or the federal courts, DHS does not
believe the two-year period should begin until after there is a final
decision by the highest appellate body. Therefore, this rule proposes
that the two-year period should begin after the alien has exhausted the
avenues for appellate review by the BIA or the federal courts. See
proposed 8 CFR 216.7(a)(4)(v)(C).
d. Termination of Status
Section 11031(c)(1)(F)(iii) of Public Law 107-273 provides for the
termination of conditional resident status upon an adverse
determination based on material misrepresentation if rebuttal evidence
does not result in reversal of the adverse determination. After
termination of status, the underlying adverse determination is subject
to review in removal proceedings. Public Law 107-273 at section
11031(d). Since, in addition to the rebuttal review process following
an adverse determination, section 11031(c)(1)(F)(iv) of Public Law 107-
273 also provides for a review process by the BIA and the federal
courts, this proposed rule provides that termination of conditional
resident status is appropriate after completion of both the rebuttal
process and any BIA or judicial review, if such review is sought. See
proposed 8 CFR 216.7(a)(4)(v)(A).
This proposed rule maintains the same distinction made in section
11031(b)(2)(C) of Public Law 107-273 regarding the division of
authority to terminate conditional resident status for aliens who are
in deportation or removal proceedings and those who are not. Only the
Attorney General has authority to terminate status for aliens who are
in deportation or removal proceedings. For aliens who are not in such
proceedings, this rule is consistent with the procedures for
terminating status under the normal process described in 8 CFR
216.6(d)(2). This rule proposes that if the alien is not in deportation
or removal proceedings and receives an adverse determination based upon
material misrepresentation, status will be terminated automatically,
effective on the date of the notice of decision following the rebuttal
period. See proposed 8 CFR 216.7(a)(4)(v)(A). If the adverse
determination is appealed to the BIA or federal courts pursuant to
proposed 8 CFR 216.7(a)(4)(vi), then termination is effective the date
of the highest appellate body's decision. Id. The effective dates
provided in this rule ensure that termination of status does not occur
before a final decision on the adverse determination is made.
Following automatic termination, DHS (USCIS or ICE) will issue a
Notice to Appear (NTA) to commence removal proceedings. An alien can
seek review of the adverse determinations in those proceedings. Since
status has been terminated, the rule requires the alien and the
accompanying spouse and/or children to surrender their evidence of
conditional resident status (Form I-551, Permanent Resident Card,
formerly known as an Alien Registration Receipt Card) to DHS. While
there is no appeal following automatic termination of status, aliens
whose status has been terminated may seek review of the adverse USCIS
determination in removal proceedings. Id.; see also Public Law 107-273
at section 11031(d).
For aliens who are already in deportation or removal proceedings,
termination of status under section 11031(c)(1)(F)(iii) of Public Law
107-273 is not automatic since section 11031(b)(2)(C) of Public Law
107-273 requires such decisions to be made in proceedings. So that
jurisdiction over such aliens rests with the immigration judge
following the USCIS adverse determination process, this rule provides
that DHS file a motion to re-calendar proceedings. Id.
B. Second Stage Determinations
For eligible aliens whose conditional residence was continued for a
new two-year period due to an adverse determination relating to the job
creation or capital investment requirements, section 11031(c)(2) of
Public Law 107-273 provides a process for removing those conditions. To
remove conditions, the eligible immigrant investor must file a petition
within the 90-day period before the second anniversary of the
continuation of conditional resident status. Public Law 107-273 at
section 11031(c)(2)(B) and (C). If a petition is filed after the 90-day
period, the law provides that, with good cause and extenuating
circumstances, this late filing may be excused by the Secretary of
Homeland Security. Id. at section 11031(c)(2)(C)(ii). Where a petition
is timely filed, Public Law 107-273 requires the following
determinations to be made by the Secretary of Homeland Security:
Whether the petition contains any material
misrepresentation in the facts and information alleged in the petition
with respect to the commercial enterprises included in the petition.
If the initial determination was adverse with respect to
the job creation requirement, whether all the enterprises considered
together, including the number of jobs found to have been created at
the initial determination stage, created 10 or more full-time jobs for
qualifying individuals, and whether those jobs exist on the date of the
determination. See Public Law 107-273 at section 11031(c)(2)(E)(ii).
If the initial determination was adverse with respect to
the capital investment requirement, whether the eligible alien is in
substantial compliance with the capital investment requirement
described in INA section 216A(d)(1)(B), 8 U.S.C. 1186b(d)(1)(B), on the
date that the determination is made. Any capital amount that was
determined to have been invested in the initial determination must be
subtracted from the required capital amount at the time of the second
determination. See Public Law 107-273 at section
11031(c)(2)(E)(iii)(II). In addition, the determinations must include
consideration of any capital investment made by the alien in a
commercial
[[Page 59935]]
enterprise, regardless of whether the enterprise is a limited
partnership, the alien entered the enterprise after its formation, the
investment was made before or after the initial determination was made,
or the commercial enterprise is the same one considered in the initial
determination, so long as such facts and information are included in
the petition. Id. at section 11031(c)(2)(A).
Consistent with the initial determination process, a favorable
determination at the second stage of review results in the removal of
the conditions on permanent resident status for the alien and any
accompanying spouse and child. Id. at section 11031(c)(2)(F). The
removal of conditions is effective on the second anniversary of the
continuation of conditional resident status. Id. at section
11031(c)(2)(F). If the Secretary of Homeland Security renders an
adverse determination, the alien must be so notified and provided an
opportunity to submit rebuttal evidence. Id. at section
11031(c)(2)(G)(i). Reversal of an adverse determination based upon the
rebuttal evidence results in the removal of conditions. Id. If the
adverse determination is not reversed, conditional resident status of
the alien and any accompanying spouse and children is terminated,
subject to review of the determination in removal proceedings. Id. at
section 11031(c)(2)(G)(ii).
This rule proposes to implement section 11031(c)(2) of Public Law
107-273 by:
Establishing procedures for filing the second petition to
remove conditions;
Describing supporting evidence;
Defining the scope of the determination; and
Describing DHS favorable and adverse determinations.
These proposals are discussed below and are proposed in 8 CFR
216.7(a)(5).
1. Filing the Petition to Remove Conditions From Second Period of
Conditional Residence
This rule proposes that the alien's petition to remove conditions
from the second period of conditional residence must be filed on Form
I-829 in accordance with the form instructions and with appropriate fee
as stated in those instructions. Proposed 8 CFR 216.7(a)(5)(i). DHS has
determined that the Form I-829 remains an appropriate form to remove
conditions at the end of the second two-year period because the same
action--removal of conditions--is being requested by the alien. DHS
also is proposing that the alien file a supplement to Form I-829 with
the second Form I-829. The purpose of the supplement to Form I-829
would be to provide a means within the petition for the eligible alien
to state the facts and information described in sections 216A(d)(1)(A)
and (B) of the INA with respect to any commercial enterprise which the
alien wants to have considered, regardless of whether the enterprise is
a limited partnership, the alien entered the enterprise after its
formation, or the enterprise was created before or after the initial
determination was made. This is the same supplement proposed for the
initial determination stage.
2. Failure To File the Petition To Remove Conditions
Failure to timely file the second Form I-829 results in termination
of conditional resident status and the institution of removal
proceedings. See Public Law 107-273 at section 11031(c)(2)(D). However,
a late filing can be deemed timely if the alien establishes good cause
and extenuating circumstances. Id. at section 11031(c)(2)(C)(ii). This
exception is the same exception that is applicable to aliens seeking
removal of conditions under normal procedures. See INA section
216A(d)(2)(B), 8 U.S.C. 1186b(d)(2)(B). To maintain consistency, this
rule parallels the regulations applicable to aliens seeking removal of
conditions under normal procedures. See 8 CFR 216.6(a)(5).
This rule proposes that failure to timely file the Form I-829
results in the automatic termination of conditional resident status.
Proposed 8 CFR 216.7(a)(5)(ii). DHS will provide the alien with notice
of termination and issue and serve an NTA to aliens to institute
removal proceedings or DHS will move to re-calendar administratively
closed deportation or removal proceedings for aliens already in
deportation or removal proceedings. Id. USCIS could accept a late
filing, but only if USCIS is satisfied in its discretion that the alien
has established good cause and extenuating circumstances. Id. If USCIS
accepts a late filing before the immigration judge has jurisdiction
over the case, this rule proposes that USCIS must restore conditional
resident status and adjudicate the petition on the merits. Id. If USCIS
accepts a late filed Form I-829 after the immigration judge has
jurisdiction, this rule proposes that DHS and the alien file a joint
motion to terminate proceedings with the immigration judge and that
conditional resident status will be restored after proceedings are
administratively closed or terminated and the petition is adjudicated
on the merits. Id.
3. Evidence Supporting the Second Form I-829
In order for DHS to be equipped to make determinations on the
second Form I-829, USCIS must examine the evidence supporting the
petition as it does for Forms I-829 filed by aliens under the normal
(non-Pub. L. 107-273) process. This rule proposes to require the alien
to submit any documentation in support of the second Form I-829 that is
necessary for meeting the requirements of section 11031(c)(2) of Public
Law 107-273 and the implementing regulations. The proposed rule also
specifies particular documentary evidence that the alien must submit
with the petition. Proposed 8 CFR 216.7(a)(5)(i)(A)-(D). DHS bases the
proposed list of required evidence on the evidence that EB-5 aliens are
required to submit with their petitions to remove conditions under the
normal (non-Pub. L. 107-273) process. This evidence includes:
Evidence that the alien invested or was actively in the
process of investing the requisite capital, such as an audited
financial statement or other probative evidence; and
Evidence that the alien created, or can be expected to
create within a reasonable time, ten full-time jobs for qualifying
employees.
See 8 CFR 216.6(a)(4).
In the case of a ``troubled business'' as defined in 8 CFR
204.6(j)(4)(ii), the alien entrepreneur would be required to submit
evidence that the commercial enterprise maintained the number of
existing employees at no fewer than the pre-investment level for the
period of conditional permanent residence commencing on the effective
date of the initial determination. Such evidence could include payroll
records, relevant tax documents, and Employment Eligibility
Verification forms (Form I-9 or successor form).
To make determinations on the second Form I-829, USCIS must
consider in particular: The scope of the second determination, as
authorized by Public Laws 107-273; the commercial enterprises and
investments that the alien wants USCIS to consider; qualifying jobs;
and substantial compliance with the capital investment requirement.
a. Limited Scope of the Second Determination
At the second determination stage, Public Law 107-273 requires
consideration of material misrepresentation in the petition and
[[Page 59936]]
limits consideration of the job creation and capital investment
requirements to the requirement or requirements that formed the basis
for the initial adverse determination. Public Law 107-273 at section
11031(c)(2)(E). Public Law 107-273 further requires the Secretary of
Homeland Security to credit the alien for the number of jobs determined
to be created or the amount of capital determined to be invested at the
initial determination stage by subtracting this amount from the number
or amount needed to satisfy the overall EB-5 job creation and capital
investment requirements. Id. at section 11031(c)(2)(E)(ii)(III) and
(iii)(II); proposed 8 CFR 216.7(a)(5)(iv).
With respect to the types of evidence DHS is proposing for the
second determination stage, if the adverse determination at the initial
stage was based on failure to meet the job creation requirement, the
rule proposes to require the alien to submit evidence of the number of
qualifying jobs created since conditional resident status was continued
and the beginning and ending dates of when the jobs existed. Proposed 8
CFR 216.7(a)(5)(i)(A). For example, the alien may include with the
petition payroll records, tax documents, and Forms I-9 to evidence the
additional qualifying jobs that were created.
Note that if the eligible alien has invested in a troubled
business, documentation would be necessary to accompany the Form I-829
demonstrating that the level of employment on the date of the second
determination was maintained at no less than the pre-employment level.
Public Law 107-273 at section 11031(c)(2)(E)(ii)(II) (cross referencing
section 11031(c)(1)(C)). If the eligible alien's qualifying investment
is within an approved regional center, the eligible alien would need to
submit evidence of indirect job creation if the alien is relying on
indirect jobs to demonstrate that he or she has met the job creation
requirement. Id. (cross-referencing section 11031(c)(1)(B)). Because
section 11031(c)(2)(E)(ii)(II) of Public Law 107-273 sufficiently
covers the requirements with respect to investments in troubled
business and within an approved regional center, DHS has determined
that it is not necessary to repeat the requirements in this proposed
rule.
If the adverse determination at the initial stage was based on
failure to meet the capital investment requirement, this rule proposes
to require the alien to provide evidence of his or her capital
investment in one or more commercial enterprises since conditional
resident status was continued. Proposed 8 CFR 216.7(a)(5)(i)(B). Such
evidence could include audited financial statements, federal tax
returns, bank statements, bank wire transfers, or escrow agreements.
b. Additional commercial enterprises and investments.
Regardless of whether the initial adverse determinations were based
on only the job creation or capital investment requirements, Public Law
107-273 requires the Secretary of Homeland Security to consider for the
second determination any capital investments in commercial enterprises
in the United States. Public Law 107-273 at section 11031(c)(2)(A) and
(B). Such investments include those that were made before or after the
initial adverse determination and in commercial enterprises other than
the one considered for the initial determination that were created at
any time before or after the initial adverse determination and
regardless of whether the alien entered the enterprise after its
formation. Id. at section 11031(c)(2)(A) and (B).
To implement section 11031(c)(2)(A) and (B) of Public Law 107-273,
DHS is proposing to require the alien to provide evidence of the
capital investments and corresponding commercial enterprises that he or
she wants USCIS to consider for its second determination. See proposed
8 CFR 216.7(a)(5)(i)(C). Evidence of the capital investment made in the
commercial enterprise and considered at the initial determination would
not be required. Id. DHS has determined that to require aliens to
present such documentation would be duplicative and, therefore,
unnecessary.
The type of evidence of the alien's capital investments that DHS is
proposing to require is based on the type of evidence that was required
to be submitted with the initial Form I-829 pursuant to 8 CFR
216.6(a)(4). The evidence that this proposed rule would require for
each commercial enterprise which the alien desires to have considered
includes:
Audited financial statements, or other probative evidence
of the alien's capital investment for each commercial enterprise to be
considered; and
Evidence of each commercial enterprise's formation and
current ownership structure including, but not limited to: Articles of
incorporation, certificate of merger or consolidation, partnership
agreement, joint venture agreement, business trust agreement, or other
similar organizational document for the commercial enterprise; and a
certificate evidencing authority to do business in a state or
municipality or, if the form of the business does not require such a
certificate, a statement to that effect. See proposed 8 CFR
216.7(a)(5)(i)(C).
c. Treatment of Capital Investments in Different Types of Commercial
Enterprises
There may be instances where an eligible alien has made capital
investments in commercial enterprises that are located within a
targeted employment area (TEA) which require at least $500,000 in
capital investment, while also making capital investments in commercial
enterprises not located in a TEA which require at least $1,000,000 in
capital investment. Section 203(b)(5)(C) of the INA, 8 U.S.C.
1153(b)(5)(C), and 8 CFR 204.6(f) define and describe the amount of
investment capital required in both targeted (TEA) and non-targeted
locations within the United States. These provisions, however,
contemplate the consideration of capital investments in only one
commercial enterprise. Sections 11031(c)(2)(A) & (B) of Public Law 107-
273 do not discuss how capital investments in commercial enterprises
located both within and without a TEA must be evaluated in total at the
time of the second determination to meet the capital investment
requirements. This rule describes at 8 CFR 216.7(a)(5)(iii) the
prorating approach that DHS proposes to use to determine the total
amount of capital that must be invested in such instances. DHS proposes
to utilize a multi-step process as follows to make such determinations:
The creditable amount of an eligible alien's capital
investments in all of the commercial enterprises located within a TEA
would be determined by USCIS. If the eligible alien has complied with
the $500,000 capital investment requirement, then the capital
investment requirement under Public Law 107-273 will be met. If the
eligible alien has not complied with the $500,000 capital investment
requirement, then the amount of the eligible alien's creditable capital
investment in all commercial enterprises located within a TEA would be
divided by 500,000 to determine the prorated percentage of the eligible
alien's capital investment based on capital investments in commercial
enterprises located in a TEA.
The creditable amount of an eligible alien's capital
investments in all of the commercial enterprises that are not located
within a TEA would be determined by USCIS. If the eligible alien has
complied with the $1,000,000 capital investment requirement, then the
capital investment requirement under Public Law 107-273 will be met. If
the eligible alien has not complied
[[Page 59937]]
with the $1,000,000 capital investment requirement, then the amount of
the eligible alien's creditable capital investment in all commercial
enterprises not located in a TEA would be divided by 1,000,000 to
determine the prorated percentage of the eligible alien's capital
investment based on capital investments in commercial enterprises that
are not located in a TEA.
The prorated percentage of the eligible alien's capital
investment in commercial enterprises located in a TEA would be combined
with the prorated percentage of the eligible alien's capital investment
in commercial enterprises that are not located within a TEA to arrive
at the eligible alien's total creditable capital investment. This total
creditable capital investment will be represented as a percentage, and
the percentage must equal or exceed 100% in order for the alien to meet
the statutory capital investment requirement.
As an example, if an eligible alien's creditable capital investment
in a commercial enterprise located within a TEA was $300,000, then the
prorated percentage of the eligible alien's capital investment in the
commercial enterprise would be 60% ($300,000/500,000 x 100 = 60%). In
order for that eligible alien to meet the statutory capital investment
requirements based upon an additional capital investment in a
commercial enterprise that is not located within a TEA, he or she would
have to be credited with an additional capital investment of $400,000
($400,000/1,000,000 x 100 = 40%). In this example, the $300,000 capital
investment and the additional $400,000 capital investment would
constitute 100% of the capital investment requirement by utilizing a
combination of capital investments in commercial enterprises located
both within and without a TEA.
d. Substantial Compliance With the Capital Investment Requirement
If the failure to meet the capital investment requirement was the
basis for the initial adverse determination, eligible aliens must
demonstrate that, on the date of the second determination, they are in
substantial compliance with the capital investment requirement for the
second determination. See Public Law 107-273 at section
11031(c)(2)(E)(iii). This rule proposes to utilize the same definition
of substantial compliance for the initial and second determinations,
discussed in detail later in this SUPPLEMENTARY INFORMATION. See
proposed 8 CFR 216.7(c)(2).
4. Favorable Determinations on the Second Form I-829
Favorable determinations on the second Form I-829 result in the
removal of conditions for the alien and accompanying spouse and
children as of the second anniversary of the continuation of
conditional resident status. Public Law 107-273 at section
11031(c)(2)(F). This rule proposes that upon a favorable determination
by USCIS warranting removal of conditions, USCIS will remove the
conditions on the alien's permanent resident status if the alien is not
in deportation or removal proceedings, and will send the alien written
notice of these decisions. Proposed 8 CFR 216.7(a)(5)(v). Removal of
conditions would be effective on the second anniversary of the
continuation of conditional residence. Id. Because Public Law 107-273
requires status determinations for aliens in deportation or removal
proceedings to take place within those proceedings, this rule would
require USCIS to provide written notice of the favorable determinations
to those aliens in proceedings and to take no action on removing
conditions. Id. DHS also would be required to file a motion to re-
calendar proceedings so that the status determinations can take place
within proceedings. Id. These procedures parallel those applied to
favorable determinations made at the initial determination stage of the
process.
5. Adverse Determinations on the Second Form I-829
An adverse determination on the alien's second Form I-829 leads to
termination of conditional resident status. Public Law 107-273 at
section 11031(c)(2)(G)(ii). However, prior to termination, the alien
may submit evidence to rebut the adverse determinations so that the
adverse determinations are reversed. Id. at section 11031(c)(2)(G)(i).
This rule proposes a process for rebutting adverse determinations made
by USCIS and terminating conditional residence status if no rebuttal is
submitted or the rebuttal evidence does not result in a reversal of the
adverse determinations.
Similar to the process for rebutting initial adverse
determinations, this rule proposes a 12-week period within which the
alien may submit a written rebuttal to USCIS after receiving written
notice from USCIS of the adverse determinations. Proposed 8 CFR
216.7(a)(5)(vi)(A). USCIS would render a decision on the rebuttal
evidence after receiving the rebuttal evidence. If USCIS determines
that the rebuttal evidence is not sufficient to reverse its adverse
determinations, USCIS would terminate the alien's conditional status
and that of his or her accompanying spouse and/or children. If the
alien is not already in deportation or removal proceedings, USCIS would
issue an NTA to commence removal proceedings regardless of the ground
on which the adverse determinations were based. Proposed 8 CFR
216.7(a)(5)(vi)(B)(2). If the alien is in deportation or removal
proceedings, USCIS would notify the alien of the adverse determination
and file a motion to re-calendar with EOIR so that the termination of
the alien's conditional resident status would be made in proceedings.
On the other hand, if USCIS determines that the rebuttal evidence is
sufficient to reverse the adverse determinations, removal of conditions
would result, either by USCIS or the immigration judge (or the BIA) as
appropriate. Proposed 8 CFR 216.7(a)(5)(vi)(A).
If USCIS does not receive rebuttal evidence during the 12-week
period, this rule proposes that the alien's conditional resident status
and that of his or her accompanying spouse and/or children will be
automatically terminated, even if the alien is in deportation or
removal proceedings. Proposed 8 CFR 216.7(a)(5)(vi)(B)(1). This
procedure contrasts with the procedure DHS is proposing for the
rebuttal period following the initial determination. As discussed
previously, if USCIS does not receive rebuttal evidence during the 12-
week period following notice of adverse determinations at the initial
determination stage, no automatic consequences result. See proposed 8
CFR 216.7(a)(4)(ii). DHS is proposing differing procedures following
the rebuttal period for initial determinations and second
determinations because, unlike at the second determination stage,
USCIS's consideration of the alien's petition at the initial
determination is complicated by two additional considerations: (1)
Public Law 107-273 requires differing treatment of an alien's status
depending on the basis for the adverse determination; and (2) USCIS's
determinations at the initial determination stage would be based on
facts and evidence that are dated.
At the initial determination stage, Public Law 107-273 requires
termination of conditional resident status only if the adverse
determination is based on material misrepresentation. Public Law 107-
273 at section 11031(c)(1)(F)(iii). Public Law 107-273 requires
continuation of conditional resident status if the adverse
[[Page 59938]]
determination is based on a failure to meet the job creation or capital
investment requirements. Public Law 107-273 at section
11031(c)(1)(F)(ii). By contrast, at the second determination stage,
Public Law 107-273 provides for termination of conditional resident
status regardless of the basis for the adverse determination. Public
Law 107-273 at section 11031(c)(2)(G)(ii). An additional complication
at the initial determination stage is that the petitions and supporting
documentation reviewed by USCIS for its initial determination date from
the late 1990s and, therefore, may no longer provide USCIS with a
complete picture of the alien's eligibility. DHS has determined that
USCIS should approach these cases cautiously, and provide every
opportunity in the decision-making process for USCIS to revisit the
evidence before it. At the second determination stage, on the other
hand, the petition will be based on contemporary information and
evidence. Therefore, USCIS should be able to proceed with its second
determination as it would a non-Public Law 107-273 EB-5 petition.
The termination of conditional resident status under proposed 8 CFR
216.7(a)(5)(vi)(B)(1) or (2) would not be subject to appeal but would
be reviewable in subsequent removal proceedings. Public Law 107-273 at
section 11031(d); proposed 8 CFR 216.7(a)(5)(vi)(B)(1) or (2). If the
alien's status (and that of his or her spouse and children) is
terminated under proposed 8 CFR 216.7(a)(5)(vi)(B)(1) or (2), the alien
and spouse and children would be required to surrender any Form I-551
previously issued.
C. Common Definitions Applicable to Removal of Condition Determinations
The rule proposes to define several statutory terms, in some cases
for ease of reference and, in other cases, to better explain the
statutory terms. The rule proposes to define the following terms for
ease of reference and it relieves the regulations from cumbersome
descriptions or cross-references to Public Law 107-273 each time the
regulations refer to these terms:
Denied initial Form I-829: an initial Form I-829 that was
denied by an INS director on the merits of the petition.
Initial Form I-829: a Form I-829 that was timely filed
before November 2, 2002 by an eligible alien.
Qualifying Form I-526: a Form I-526 that was approved
after January 1, 1995 and before August 31, 1998.
Second petition to remove conditions: a petition to remove
conditions (Form I-829 or successor form) timely filed by an eligible
alien following an initial adverse determination.
See proposed 8 CFR 216.7(a)(1).
DHS also is proposing to define the following substantive terms
relating to petitions to remove conditions (either under section 11031
or 11032(e) of Pub. L. 107-273):
1. Material Misrepresentation
An adverse determination made on a petition to remove conditions
based on ``material misrepresentation'' leads to termination of
conditional resident status. Public Law 107-273 sections
11031(c)(1)(F)(iii), 11031(c)(2)(G)(2), and 11032(e). DHS is proposing
in this rule to define material misrepresentation to mean a statement
or representation in a petition to remove conditions, as originally
filed or supplemented, or in any accompanying documentation, which, as
a matter of discretion, is determined to be both false and one to which
importance would reasonably be attached for determining whether to
grant the petition, without regard to the petitioner's or any other
person's intent or to whether or not there was detrimental reliance
upon the statement or representation. Proposed 8 CFR 216.7(c)(1); see
Kungys v. United States, 485 U.S. 759, 771-772 (1988) (holding that the
materiality test is whether the concealments or misrepresentations had
a natural tendency to influence the decision of the immigration
agency). Material misrepresentation also includes an omission that has
the effect of making any material representation in the Form I-829 or
accompanying documentation false. For example, if the alien failed to
mention in the initial Form I-829 that he or she received his or her
capital investment back since becoming a conditional resident, then
this omission would constitute a material misrepresentation.
2. Substantial Compliance With the Capital Investment Requirement
Public Law 107-273 requires DHS to consider whether the eligible
alien is in ``substantial compliance'' with the capital investment
requirement. Public Law 107-273 sections 11031(c)(1)(A)(iii),
11031(c)(2)(E)(iii), and 11032(e)(2)(C). By contrast, removing the
conditions from permanent resident status of an alien entrepreneur
typically requires aliens to demonstrate that they invested, or were
actively in the process of investing, the requisite amount of capital.
See INA section 216A(d)(1)(A)(i), 8 U.S.C. 1186b(d)(1)(A)(i). The
requirement to be ``actively in the process of investing'' capital has
no quantitative aspect with respect to the amount of the investment.
Instead, it focuses on the process of investing the required capital,
and could be satisfied by showing that the process of investing the
capital has been commenced and is continuing. Substantial compliance
suggests that the substance of the capital investment has in fact been
made.
Accordingly, this rule defines substantial compliance as meaning
that that the alien has invested nearly all the requisite amount (i.e.,
$1 million or $500,000). 8 CFR 216.7(c)(2). If the remaining amount has
not been invested, the alien must provide evidence that the balance is
legally obligated for final disbursement within a reasonable period of
time after any one of the three dates specified in sections
11031(c)(1)(D) and 11032(e)(3) of Public Law 107-273, as applicable:
(1) The date on which the Form I-829 was filed (not applicable to
petitions to remove conditions considered under section 11031(c)(2) of
Public Law 107-273, relating to the second determination;
(2) Six months after that date (limited to petitions to remove
conditions considered under section 11031(c)(1) of Pub. L. 107-273); or
(3) The date upon which the determinations are made (applicable to
petitions to remove conditions considered under sections 11031(c)(1)
and (2) and 11032).
DHS has determined that assigning a rigid numerical standard to
define ``substantial compliance'' would not fairly take into account
the unique circumstances of each investment. Because several years have
passed since the enactment of Public Law 107-273 and the law's deadline
for completing the initial determinations, DHS believes that requiring
eligible aliens to demonstrate that they have made ``nearly all'' the
required capital investment is reasonable.
This rule proposes to exclude from consideration any funds returned
to the alien or required to be returned to the alien (provided by
legally enforceable documents or contracts relating to the enterprise)
in the form of guaranteed interest payments or as redemption for his or
her capital investment interest, or otherwise diverted. Returned funds
would not have been made available to the commercial enterprise for the
purposes of creating qualifying jobs.
3. Full-time Employment
In making its initial and second determinations on petitions to
remove conditions under section 11031(c) of Public Law 107-273, the
Secretary of
[[Page 59939]]
Homeland Security must consider whether the commercial enterprise
created full-time positions for 10 or more qualifying employees. Public
Law 107-273 at section 11031(c)(1)(A)(ii); see also Public Law 107-273
at section 11031(c)(2)(E)(ii)(III). Section 11031(f) of Public Law 107-
273 defines ``full-time'' as ``a position that requires at least 35
hours of service per week at any time, regardless of who fills the
position.'' This rule adopts the statutory definition for ``full-
time,'' but also further describes what is meant by the term
``position.'' See proposed 8 CFR 216.7(c)(3). This rule provides that a
qualifying ``position'' is one that is required by the commercial
enterprise at all times. DHS believes that such a clarification is
necessary to ensure that the term full-time employment is given
consistent treatment with the interpretation used by DHS in other EB-5
contexts and creates the type of permanent employment contemplated by
the EB-5 program. The proposed definition ensures that only continuous
full-time employment, rather than intermittent, temporary, seasonal, or
transient employment, is considered. Such definition does not, however,
require that the position be filled by a specific employee.
D. Treatment of Spouses and Children Where Eligible Alien Is Deceased
If the eligible alien is deceased, this rule proposes that the
accompanying spouse and/or children will qualify as eligible aliens
provided they meet the requirements of section 11031 of Public Law 107-
273 for the removal of conditions in place of the principal. See
proposed 8 CFR 216.7(a)(6). This provision is similar to current
regulations which permit the spouse and children of a deceased alien
entrepreneur to remain eligible for the removal of the conditions. 8
CFR 216.6(a)(6). The basis for this approach is that the alien
entrepreneur has not become ineligible to remove conditions due to
failure to meet the substantive or procedural requirements, but,
instead, because of an outside event. In order to remain eligible for
the removal of conditions, the spouse and children can ``step into the
shoes'' of the eligible alien and demonstrate eligibility just as the
eligible alien could have done. This rule would clarify that in order
to ``step into the shoes'' of the eligible alien, eligibility can be
demonstrated individually or by the alien, spouse and children
collectively.
V. Adjustment of Status Applications Under Section 11032 of Public Law
107-273
In addition to providing special treatment for certain aliens who
previously attained conditional resident status, Public Law 107-273
also provides for the special treatment of ``eligible aliens'' who have
not yet become conditional residents. Specifically, section 11032(a) of
Public Law 107-273 requires DHS or the Secretary of State to grant
conditional residence status to eligible aliens meeting the following
criteria:
The alien filed a Form I-526 that was approved after
January 1, 1995 and before August 31, 1998;
Pursuant to this approval, the alien timely filed a Form
I-485 or an application for an immigrant visa (DS-230) prior to the
date of enactment of Public Law 107-273, November 2, 2002; and
The alien is not inadmissible or deportable.
See Public Law 107-273 at section 11032(b).
If the qualifying Form I-526 was revoked following approval, the
alien may still be eligible for conditional resident status if the
basis for the revocation was failure to meet the job creation
requirement in INA section 203(b)(5)(A)(ii), 8 U.S.C.
1153(b)(5)(A)(ii). See Public Law 107-273 at section 11032(c)(1). If
the qualifying Form I-485 or application for immigrant visa was denied
or terminated on or before November 2, 2002, the alien may still be
eligible for conditional resident status if the basis for the denial or
termination was the alien's failure to meet the job creation
requirement or the alien's departure from the United States without
permission (``advance parole''). See id. at section 11032(c)(2)(A). If
an eligible alien is no longer in the United States, such alien may be
paroled into the United States if necessary to obtain adjustment of
status to that of a conditional resident. See id. at section
11032(c)(2)(B).
As the authority of DHS only extends to the adjudication of Form I-
485 adjustment applications filed by aliens physically present in the
United States, this rule only discusses the applicability of section
11032(c) of Public Law 107-273 to eligible aliens who filed such
applications. This rule does not extend to applications for immigrant
visas, since such applications are processed by the Department of
State.
In this rule, DHS is proposing procedures eligible aliens must
follow to request USCIS to consider them for conditional residence
under Public Law 107-273. DHS also is proposing to describe how USCIS
will make eligibility determinations, including determinations for
special cases involving overseas aliens. Finally, DHS is proposing the
approval and denial processes.
A. Definitions
Before outlining the required procedures, this rule proposes
several definitions of terms used in the proposed provisions to avoid
repeated cross-references to section 11032(c) of Public Law 107-273 or
lengthy descriptions. At proposed 8 CFR 245.25(a), DHS is proposing
definitions for the following terms: application for adjustment of
status; qualifying Form I-485; qualifying Form I-526; and Form I-485
that is no longer pending. The definitions track the statutory language
in Public Law 107-273. For the term, ``Form I-485 that is no longer
pending,'' DHS is proposing an additional clarification. Under this
rule, the phrase ``no longer pending'' would mean that DHS terminated
for reasons of abandonment or denied the alien's Form I-485 on or
before November 2, 2002, the date of enactment of Public Law 107-273.
DHS will disregard the denial or termination without the need for the
alien to file a motion to reopen or take other procedural steps.
B. Procedures for Requesting Consideration for Conditional Resident
Status
1. Filing a New Application for Adjustment of Status
DHS is proposing in this rule that aliens seeking to qualify for
conditional resident status under section 11032 of Public Law 107-273
must, in accordance with the form instructions, file with USCIS a newly
completed Form I-485 or succeeding form, without fee, and with any
documentary evidence of continued eligibility that is signed and dated
after the date that a final rule is effective and on or before the date
that is 180 days from date of such effective date. Proposed 8 CFR
245.25(b). The alien would be required to subsequently appear when
requested by USCIS to submit certain biometric information (with fee)
and for an interview as part of the determination process if USCIS
determines that an interview is necessary. Proposed 8 CFR
245.25(b)(1)(iii).
DHS is also proposing the submission of additional documentation
with the new Form I-485 in cases where:
The alien's qualifying Form I-485 is no longer pending or
[[Page 59940]]
The alien's qualifying Form I-526 was revoked.
Without this information, USCIS would not be equipped to make a
determination on whether a revoked petition should be disregarded or a
denied or terminated application for adjustment of status should be
reopened.
a. Forms I-485 That Are No Longer Pending
If the alien's Form I-485 was no longer pending as of November 2,
2003, DHS is proposing to require the alien to submit evidence to show
the reasons why the Form I-485 is no longer pending. To qualify for
benefits under section 11032 of Public Law 107-273, the alien must
demonstrate that his or her I-485 is no longer pending due to a
determination by INS that the alien either failed to satisfy the job
creation requirement or departed the United States without advance
parole while the Form I-485 was pending. Proposed 8 CFR 245.25(b)(3).
The primary evidence would be a decision from INS denying or
terminating the Form I-485. However, USCIS would accept secondary
evidence, including a sworn statement from the alien regarding the
basis for the denial, termination, withdrawal, or abandonment.
b. Forms I-526 That Have Been Revoked
Otherwise eligible aliens whose qualifying Forms I-526 were revoked
may still be able to receive the benefits of Public Law 107-273 and
obtain conditional resident status. See Public Law 107-273 at section
11032(c)(1). USCIS may not grant a request for adjustment of status on
Form I-485 based on a revoked Form I-526 because of INA section
245(a)(3), 8 U.S.C. 1255(a)(3), requires that an alien must have an
immigrant visa immediately available in order to adjust status. A
petition that USCIS revokes based on a finding of ineligibility
nullifies the previous USCIS decision to approve the petition. However,
under Public Law 107-273, if INS or USCIS revoked the approval of the
alien's Form I-526 petition based on a determination that the alien
failed to meet the job creation requirement, USCIS must disregard the
revocation for purposes of approving the alien's Form I-485. See Public
Law 107-273 at section 11032(c)(1). If USCIS revoked the Form I-526 due
to other grounds of ineligibility, then USCIS will not disregard the
revocation since Public Law 107-273 only authorizes the one basis for
disregarding revocations. This rule proposes that in cases where
revocation is not authorized, USCIS will deny the Form I-485 if it is
still pending. Proposed 8 CFR 245.25(f). Aliens whose Forms I-526 were
revoked on other grounds of ineligibility would not be able to
establish eligibility for adjustment of status under section 11032 of
Public Law 107-273 to file the new Form I-485.
In order for USCIS to be equipped to make determinations regarding
the revoked petition, USCIS would need information regarding the
revocation. Therefore, if the alien is seeking consideration for
conditional residence under section 11032 of Public Law 107-273
notwithstanding the revocation of his or her qualifying Form I-526, DHS
is proposing to require the alien to submit evidence demonstrating that
USCIS should disregard the revocation. Proposed 8 CFR 245.25(b)(4). The
primary evidence would be a copy of the revocation decision where the
sole stated reason for the decision is failure of the alien to meet the
job creation requirement. However, if the alien lost the decision or no
longer has the decision for some other reason, USCIS would accept
secondary evidence including a sworn statement of the alien regarding
the reasons for the revocation and additional supporting evidence.
Using the information submitted by the alien, USCIS would be able to
confirm the information contained in its own records.
c. Reasons for Requiring Additional Submissions
The procedures and requirements in proposed 8 CFR 245.25(b)(1)
would provide USCIS with up-to-date information regarding the alien so
that USCIS can make a determination on whether such aliens are
currently inadmissible or deportable and, in turn, ineligible for
conditional resident status under section 11032(b)(3) of Public Law
107-273. Therefore, failure to follow these requirements would result
in denial of the alien's qualifying Form I-485 because USCIS would not
be able to determine whether the alien qualifies for conditional
residence under Public Law 107-273. Proposed 8 CFR 245.25(b). The
requirements would also provide USCIS with information regarding which
aliens with qualifying EB-5 petitions are still interested in pursuing
conditional residence through the EB-5 program on the basis of such
petitions.
2. Aliens Not Physically Present in the United States
Under this rule, aliens who are not physically present in the
United States may still qualify for conditional residence under section
11032(c)(2)(B) of Public Law 107-273. Proposed 8 CFR 245.25(b)(2). DHS
is proposing that such aliens follow the procedures in proposed 8 CFR
245.25 and timely file a new Form I-485 and any supporting
documentation in order for USCIS to consider their cases. However, with
respect to the requirement to appear for biometric information capture
and an interview, DHS is proposing that USCIS would notify aliens who
are not physically present in the United States following receipt of
the new Form I-485 to make any required appearances at the DHS office
located outside the United States having jurisdiction over the alien's
foreign residence. Proposed 8 CFR 245.25(b)(2). After considering the
new Form I-485 and information obtained through the biometric capture
and interview at the DHS office overseas, USCIS would be better able to
make a determination as to whether it is necessary to parole the alien
for adjustment of status pursuant to section 11032(c)(2)(B).
3. Spouses and Children
At proposed 8 CFR 245.25(b)(5), DHS is proposing to require spouses
and children accompanying or following to join principal EB-5 aliens
pursuant to section 203(d) of the INA, 8 U.S.C. 1153(d), as permitted
under Public Law 107-273, to each file an application for adjustment of
status. Applications should be filed with the principal EB-5 alien's
application for adjustment of status. However, in case circumstances
change between the time that the principal alien files his or her own
application for adjustment of status and the date USCIS makes a
decision on the principal's application, this rule would permit
applications for accompanying and following to join spouses and
children to be filed up until the date of decision. Applications filed
for accompanying or following to join spouses and children would be
required to include evidence of eligibility and, in particular,
evidence of the qualifying relationship, such as marriage and birth
certificates. For spouses and children who are overseas and seeking to
join the principal EB-5 alien after such alien has received conditional
resident status (i.e., ``following to join'' the principal alien),
USCIS cannot grant the adjustment of status application while they are
overseas. Therefore, following a determination of eligibility, DHS is
proposing to require that these dependents appear at a DHS office
abroad to request parole by filing an Application for Travel Document,
Form I-131 or successor form, in accordance with the instructions to
the form to return to the United States for
[[Page 59941]]
adjustment of status. Proposed 8 CFR 245.25(c)(3).
C. Determinations on Eligibility
DHS is proposing that prior to approving or denying the qualifying
Form I-485 under section 11032 of Public Law 107-273, USCIS would make
determinations on whether the alien qualifies as an eligible alien.
Proposed 8 CFR 245.25(c). DHS is further proposing to create an
intermediate step, described more fully below, to accommodate eligible
aliens and their spouses and children who are overseas and may need to
be paroled into the United States to be granted conditional resident
status.
To determine whether an alien qualifies for conditional resident
status, USCIS would review the qualifying Form I-485, the new Form I-
485, and any information based on the recent collection of biometric
information, interview, any Form I-526 revocation proceedings, and any
previous denial of Form I-485 if no longer pending. At this stage,
USCIS would determine whether all of the requirements in section
11032(a), (b), and (c) are met, such as:
Whether the revocation of the alien's qualifying Form I-
526 was based on failure of the alien to meet the job creation
requirement and, therefore, should be disregarded;
Whether a ground of inadmissibility or deportability
applies to the alien; and
Whether the alien's denied or terminated Form I-485 should
be reopened because the denial was based on failure to meet the job
creation requirement.
An additional consideration would be whether the alien obtained
permanent residence on other grounds. In such a case, there would be no
need for USCIS to apply section 11032 of Public Law 107-273 and grant
conditional residence. Proposed 8 CFR 245.25(c)(1). Another
consideration would be whether the eligible alien departed the United
States while his or her qualifying Form I-485 was pending. An alien
would not qualify for conditional residence under section 11032 of
Public Law 107-273 if he or she departed without advance parole.
Proposed 8 CFR 245.25(c)(2). This consequence applies to adjustment of
status applicants under regular procedures applicable to Forms I-485.
DHS does not believe that a different rule should apply to adjustment
applicants seeking benefits under section 11032 of Public Law 107-273.
Finally, for principal aliens and their spouses and children who
are not physically present in the United States, DHS is proposing that
following a determination of eligibility, USCIS would send such aliens
a notice requiring them, by a specific date, to apply for parole to
return to the United States at a DHS office located in the jurisdiction
of their overseas residence. Proposed 8 CFR 245.25(c)(3). Applicants
can learn which DHS office services their residence by viewing the
USCIS Office and Service Locator at https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=OS. Applicants may be
requested to appear at the overseas DHS office for capture of biometric
information and/or an interview in connection with the parole
application. DHS proposes to make physical presence in the United
States a requirement for adjudication of the I-485 application because
its jurisdiction to grant conditional residence based on adjustment of
status is limited to the United States.
If USCIS determines that an alien who is overseas does not qualify
as an eligible alien or for conditional resident status under section
11032 of Public Law 107-273, USCIS will terminate processing of the
alien's Form I-485 and that of any accompanying spouse and children.
Proposed 8 CFR 245.25(c) and (e). Likewise, if USCIS determines that an
alien who is overseas does qualify as an eligible alien for conditional
residence under section 11032 of Public Law 107-273, but that a spouse
or child does not qualify for conditional resident status, USCIS will
terminate processing of the respective spouse's or child's Form I-485.
Proposed 8 CFR 245.25(c) and (e). There is no administrative appeal of
a decision to terminate processing of any application of an alien who
is overseas. See INA section 245(a), 8 U.S.C. 1255(a). Therefore, under
this proposed rule, if the alien fails to obtain parole into the United
States, USCIS will deny the alien's Form I-485. In such a case, the
alien would not have met the requirements of sections 11032(b)(3) or
(c)(2)(B) of Public Law 107-273.
D. Decisions on Granting Conditional Resident Status
1. Approvals
After USCIS makes a determination of eligibility, USCIS would make
a decision on the Form I-485. Upon approval of the new Form I-485,
USCIS would grant the alien conditional residence under section 216A of
the INA, 8 U.S.C. 1186b, as of the date of the approval. USCIS would
also approve Forms I-485 filed for the principal alien's accompanying
spouse and children, if their Form I-485 is properly filed in
accordance with proposed 8 CFR 245.25(b)(5) and the spouse or child is
eligible to receive a visa under section 203(d) of the INA, 8 U.S.C.
1153(d). Proposed 8 CFR 245.25(d). USCIS will send written notice of
the approval to the eligible alien(s). Note that prior to approval,
USCIS must ensure that a visa number is available for each eligible
alien from the Department of State under sections 201(d) and 203(b)(5)
of the INA. 8 U.S.C. 1151(d) and 1153(b)(5).
2. Denials
Under this proposed rule, USCIS would be required to deny
qualifying applications for adjustment of status to conditional
residence if it determines that the eligible alien did not meet the
requirements in section 11032 of Public Law 107-273 and the regulatory
requirements in proposed 8 CFR 245.25. Proposed 8 CFR 245.25(e). In
particular, USCIS would deny conditional residence:
When USCIS cannot disregard the revocation of the eligible
alien's qualifying Form I-526;
When USCIS cannot reopen the eligible alien's Form I-485
that is no longer pending;
If USCIS determines that the eligible alien is
inadmissible or deportable on any ground; or
If the eligible alien is no longer physically present in
the United States and is not timely paroled into the United States if
DHS requires such parole.
USCIS would provide the alien with written notice of the denial. It
would also initiate removal proceedings if the alien is physically
present in the United States. At that time, an immigration judge would
have jurisdiction to review USCIS's decision. Proposed 8 CFR 245.25(e).
VI. Determinations on Petitions To Remove Conditions Under Section
11032 of Public Law 107-273
Section 216A of the INA, 8 U.S.C. 1186b, governs the entire removal
of condition process for EB-5 aliens who do not fall within the scope
of Public Law 107-273. Section 11032(e) of Public Law 107-273 modifies
part of the regular process for removing conditions after USCIS grants
conditional residence pursuant to Public Law 102-273.
Just as under the regular process, an alien granted conditional
resident status under section 11032(a) of Public Law 107-273 must file
a petition to remove conditions within 90 days prior to the second
anniversary of becoming a conditional resident. Public Law 107-273 at
section 11032(e)(1). The petition must demonstrate that:
[[Page 59942]]
The alien invested or is actively in the process of
investing the requisite capital of $1 million or $500,000,
He or she has sustained the investment during the period
of residence in the United States, and
He or she is otherwise conforming to the requirements of
the EB-5 visa classification. See id.; INA sections 203(b)(5),
216A(d)(1); 8 U.S.C. 1153(b)(5), 1186b(d)(1).
Unlike the regular process, however, section 11032(e) of Public Law
107-273 provides that the petition can be based on any commercial
enterprise in the United States in which the alien has made a capital
investment at any time. Public Law 107-273 at section 11032(e)(1). In
making a determination on the petition to remove conditions, section
11032(e) of Public Law 107-273 requires that three determinations be
made. These are similar to the determinations required for eligible
aliens seeking removal of conditions under section 11031 of Public Law
107-273:
1. A determination must be made as to whether the petition contains
any material misrepresentation in the facts and information alleged in
the petition with respect to the commercial enterprises included in the
petition. Public Law 107-273 at section 11032(e)(2)(A).
2. A determination must be made as to whether all commercial
enterprises included in the petition together created full-time jobs
for 10 or more qualifying individuals and that those jobs exist or
existed on either of the following dates: The date on which the
investor's initial application for adjustment of status or immigrant
visa was filed, or the date on which the determination on the Form I-
829 is made. Id. at sections 11032(e)(2)(B) and (e)(3). If the
investment was made within an approved regional center under the EB-5
Pilot Program, then the indirect jobs that were created can be used to
meet this requirement. Id. at section 11032(e)(2)(B). If the immigrant
investor has made an investment in a troubled business, the number of
employees of the business cannot be any less than the pre-investment
level. Id.
3. A determination must be made as to whether, considering the
alien's investments in enterprises on either or both of the dates
described above, the alien is or was in substantial compliance with the
capital investment requirement. Id. at section 11032(e)(2)(C).
Because the requirements in section 11032(e) of Public Law 107-273
are based on the requirements applicable to the regular process for
removing conditions in section 216A(c) and (d) of the INA, 8 U.S.C.
1186b(c) and (d), DHS is proposing that the regulations governing the
regular removal of condition process at 8 CFR 216.6 also apply to
section 11032(e) cases, except where specifically covered by the
provisions proposed by this rule. See proposed 8 CFR 216.7(b)(1).
Referring to the current regulations at 8 CFR 216.6(a)(1), DHS is
proposing that Form I-829 must be filed to remove conditions for aliens
granted conditional residence under section 11032(a) of Public Law 107-
273. Proposed 8 CFR 216.7(b)(1). This rule also describes the
documentary evidence that eligible aliens would be required to include
with the Form I-829. Proposed 8 CFR 216.7(b)(2). This list is different
from the list applicable to aliens who fall outside the scope of Public
Law 107-273, since section 11032(e) of Public Law 107-273 requires that
a different inquiry be made on the petitions to remove conditions of
eligible aliens. In particular, this rule requires evidence to be
presented regarding:
The dates on which jobs created by the commercial
enterprise existed;
All commercial enterprises in which the eligible alien
invested and upon which a determination will be made; and
Whether the alien is or was in substantial compliance with
the capital investment requirement described in section 216A(d)(1)(B)
of the INA, 8 U.S.C. 1186b(d)(1)(B).
If the petition to remove conditions is based upon commercial
enterprises located both within and outside of a TEA, the investment
amount must comply with proposed 216.7(a)(5)(iii).
The rule does not propose special provisions governing the
processes for requiring appearances by the alien, issuing a decision on
the petition, granting or terminating status, and providing avenues for
review of adverse decisions since the current regulations adequately
cover these areas. See 8 CFR 216.6.
VII. Treatment of Children
The special benefits of Public Law 107-273 extend to the spouses
and children of eligible aliens. In addition, section 11031(e) of
Public Law 107-273 provides that an alien who obtained conditional
resident status before November 2, 2002 by virtue of being a child of
an eligible alien will be considered to be a child for purposes of this
section notwithstanding any subsequent change in age or marital status.
Likewise, under section 11032(f) of Public Law 107-273, an alien who
was a child on the date that Form I-485 or application for an immigrant
visa (DS-230) was filed will be considered to be a child for purposes
of this section notwithstanding any subsequent change in age or marital
status.
DHS has determined that regulations implementing sections 11031(e)
and 11032(f) of Public Law 107-273 are not necessary because the
statutory provisions are sufficiently detailed. However, DHS invites
comments from the public regarding whether there are issues that should
be addressed in the regulations.
VIII. Regulatory Requirements
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) mandates that an agency
conduct an RFA analysis when an agency is ``required by 5 U.S.C. 553 *
* *, or any other law, to publish general notice of proposed rulemaking
for any proposed rule, or publishes a notice of proposed rulemaking for
interpretative rule involving the internal revenue laws of the United
States. * * *'' DHS has reviewed this regulation in accordance with the
Regulatory Flexibility Act, 5 U.S.C. 605(b), and, by approving it,
certifies that this rule will not have a significant economic impact on
a substantial number of small entities. The factual basis for this
determination is that this rule applies to individuals who file
petitions and applications under the EB-5 program. The impact is on
these persons in their capacity as individuals, so that they are not,
for purposes of the RFA, within the definition of small entities
established by 5 U.S.C. 601(6).
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, this rule is not subject
to the Unfunded Mandates Reform Act of 1995.
C. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based
[[Page 59943]]
companies to compete with foreign-based companies in domestic and
export markets.
D. Executive Order 12866
This proposed rule is not a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review.
Accordingly, this rule has not been submitted to the Office of
Management and Budget for review. DHS has considered the benefits and
costs associated with the changes proposed in this rule and has
determined that the benefits justify the costs.
The majority of changes being proposed describe how USCIS would
apply adjudication practices to the alien investor population covered
by Public Law 107-273. The alien investor population covered by Public
Law 107-273 filed petitions with USCIS during the period January 1,
1995 thru August 31, 1998. There are two distinct groups of aliens to
which this rule applies: Those who have already obtained permanent
resident status on a conditional basis are covered by section 11031 of
Public Law 107-273, and those who have never obtained permanent
resident status are covered by section 11032 of Public Law 107-273.
Pursuant to section 11031, DHS is proposing to reconsider alien
investor petitions for removal of conditions filed during the
applicable timeframe that meet the statutory eligibility requirements
specified in section 11031 Public Law 107-273. Generally, DHS would
apply adjudication standards that are similar to current practices in
alien investor adjudication, while offering a few flexibilities. DHS
estimates that 581 principal alien investors would be covered under
this provision. Under the proposed rule, these covered alien investors
would have further opportunity to satisfy their investment criteria in
order to qualify for the removal of conditions on their lawful
permanent residence. Most significantly, these principal alien
investors would have the ability to count investment activities beyond
the scope of their original investment. These enhanced flexibilities
would represent significant qualitative benefits to the alien investor
and their qualifying family members.
Principal alien investors seeking to benefit under section 11031 of
Public Law 107-273 would be permitted to complete a Supplement to Form
I-829 Petition by Entrepreneurs to Remove Conditions. Currently, there
is no fee for the Supplement; thus the compliance cost to alien
investors is directly attributable to the opportunity cost of
completing the Supplement. According to the form instructions, the
Supplement takes approximately 22 minutes to complete. Given the
importance of the proposed accommodations, DHS assumes that investors
will choose to have the form completed by an attorney. The Bureau of
Labor Statistics 2009 Occupational Employment Statistics, reports the
average hourly wage of an attorney at $62.03.\4\ To account for the
additional cost of non-wage benefits such as health insurance, vacation
time, etc., we use a factor of 1.43 to burden the wage, resulting in a
fully burdened average hourly wage rate for attorneys of $88.70.\5\
Using the fully burdened wage rate for attorneys and the form
completion time, DHS calculates the opportunity cost of completing the
Supplement at $32.82.\6\ If all 581 principal alien investors to which
the proposed rule applies were to file a Supplement, the total cost
imposed by this rule would be $19,068.\7\
---------------------------------------------------------------------------
\4\ See http://www.bls.gov/oes/2009/may/oes231011.htm.
\5\ The calculation to burden the wage rate: $62.03 x 1.43 =
$88.70. U.S. Department of Labor, Bureau of Labor Statistics,
Economic News Release, Table 1. Employer costs per hour worked for
employee compensation and costs as a percent of total compensation:
Civilian workers, by major occupational and industry group, March
2009, viewed online at: http://www.bls.gov/news.release/ecec.t01.htm.
\6\ 22 minutes/60 minutes = 0.37 hours. 0.37 hours x $88.70 =
$32.82.
\7\ 581 investors x $32.82 = $19,068.
---------------------------------------------------------------------------
DHS believes that most cases would be resolved during this initial
determination stage. Though unlikely, the highest cost scenario would
be if all 581 alien investor cases were not able to be resolved at the
initial stage. In this case, the statute provides that these alien
investors would be granted a two-year extension or reprieve after which
they have the option of petitioning for reconsideration. At the
completion of the two-year extension, the investors would have the
option of filing a new Petition by Entrepreneur to Remove Conditions,
Form I-829, with associated biometrics collection. Additionally, these
investors would be permitted to file the optional Supplement, if
appropriate, for consideration of investment activities outside the
scope of the original petition. DHS assumes that investors that would
take advantage of this benefit of the two-year time extension would
most likely file the Supplement along with Form I-829.\8\ The time
burden to complete both Form I-829 and the Supplement combined is 1
hour, 27 minutes. Assuming investors would have an attorney complete
both forms, DHS calculates the opportunity cost of completing Form I-
829 and the Supplement to be $128.62.\9\
---------------------------------------------------------------------------
\8\ According to the form instructions, Form I-829 takes
approximately 1 hour and 5 minutes to complete.
\9\ 1.45 hours x $88.70 = $128.62.
---------------------------------------------------------------------------
Additionally, investors that choose to take advantage of this
benefit by filing Form I-829 would be required to travel to the nearest
USCIS Application Support Center (ASC) for the collection of
biometrics. While travel times and distances will vary, DHS estimates
the average round-trip to an ASC will be 20 miles, and that the average
time for that trip will be an hour. It will take an average of one hour
for an applicant to wait for service, and to have his or her biometrics
collected, for a total of compliance time of 2 hours. According to the
Bureau of Labor Statistics, the 2009 average hourly wage for all
occupations was $20.90, which results in $29.89 per hour in burdened
wages.\10\ Using a fully burdened wage rate of $29.89 per hour, USCIS
calculates the opportunity cost of complying with the biometric
collection to be $59.78. The opportunity costs associated with
providing biometrics and completing Forms I-829 and the Supplement for
all 581 investors under the second determination stage would total
$109,460.\11\ Investors seeking to benefit under the two-year extension
provision would not have their fees waived for Form I-829. The current
fees for Form I-829 and biometrics collection are $3,750 and $85,
respectively. Thus, if all alien investors were to avail themselves of
the benefits associated with the two-year extension, this rule would
impose over $2.2 million in fees.\12\
---------------------------------------------------------------------------
\10\ See United States Department of Labor, Bureau of Labor
Statistics, Occupational Employment Statistics, May 2009 National
Occupational Employment and Wage Estimates. Viewed online at: http://www.bls.gov/news.release/pdf/ocwage.pdf.
\11\ The opportunity cost for the second determination is
calculated as follows: $128.62 for forms + $59.78 for biometrics =
$188.40 total opportunity cost per alien investor. $188.40 x 581 =
$109,460 in total maximum opportunity cost for second determination.
\12\ $3,835 total fees x 581 = $2,228,135.
---------------------------------------------------------------------------
Under the highest-cost scenario, where all 581 investors covered
under section 11031 would have to undergo both the initial and
secondary determination to have their conditions on permanent residence
removed, the total opportunity cost imposed by this rule is $128,528.
Additionally, the rule would impose over $2.2 million in fees, under
the highest-cost scenario.
Section 11032 of Public Law 107-273 also provides benefits for
certain individuals and their qualifying family members who applied for
admission or adjustment of status on an EB-5 visa prior to the
enactment of the legislation.
[[Page 59944]]
Principal alien investors and qualifying family members seeking to
benefit under section 11032 would be required to complete a new
Application to Register Permanent Residence or Adjust Status, Form I-
485, even though many of these aliens will have previously completed a
Form I-485. Additionally, these covered principal aliens and family
members would be required to submit biometric information.\13\ DHS
estimates 109 aliens would be covered under this provision; 31
principal aliens and approximately 78 dependent family members.\14\
---------------------------------------------------------------------------
\13\ Note: Biometric collection is only required for family
members who are 14 years of age or older.
\14\ DHS assumes average dependents of 2.5 per principal alien
based on historical employment-based immigrant petitions.
Calculation: 31 principal aliens x 2.5 = 77.50.
---------------------------------------------------------------------------
Under these circumstances, the fee for Form I-485 would be waived;
thus the compliance cost to alien investors and family members is
directly attributable to the opportunity cost of completing Form I-485.
According to the form instructions, Form I-485 takes approximately 6
hours and 15 minutes to complete. In addition, applicants will also be
required to travel to the nearest ASC for the collection of biometrics.
Therefore, the total time for each applicant to comply with Form I-485
filing and biometric collection requirements is 8 hours and 15 minutes.
Using a fully burdened wage rate of $29.89 per hour, USCIS calculates
the opportunity cost to be $246.59.\15\ If all 109 aliens estimated to
be covered under section 11032 were to comply with these provisions,
the total opportunity cost imposed by completing Form I-485 and
submitting biometrics would be $26,878.\16\ In keeping with current
alien investor petition processes, two years after obtaining LPR status
DHS would require the principal alien investors to file Form I-829,
which would not be considered a cost of this rule. However, under the
provisions of the statute, these investors have the option of
submitting the Supplement if the principal alien investors wish to
request that USCIS count investment activities beyond the scope of
their original investment. DHS does consider the costs associated with
filing the Supplement to be a cost of this rule. Again, assuming that
an attorney would complete this form, if all 31 principal alien
investors were to file the Supplement this rule would impose an
additional opportunity cost of $1,017.\17\ Therefore, the total
opportunity cost imposed by this rule under section 11032 in completing
Forms I-485 and the Supplement and submitting biometrics would be
$27,895. In addition, all covered aliens would be required to submit
biometric fees. The current fee for biometric collection is $85; thus
the total fee collection would be $9,265.\18\ In summary, the total
costs of the proposed rule are represented by the opportunity cost and
fees paid by aliens covered under both section 11031 and 11032,
$156,423 and $2,237,400, respectively.
---------------------------------------------------------------------------
\15\ The calculation to burden the wage rate: $20.90 x 1.43 =
$29.887 per hour. The calculation of opportunity cost: $29.89 x 8.25
= $246.59.
\16\ $246.59 x 109 covered aliens = $26,878.31.
\17\ $32.82 x 31 investors = $1,017.
\18\ $85 x 109 covered aliens = $9,265.
---------------------------------------------------------------------------
In light of the significant qualitative benefits associated with
the proposed rule, DHS has determined the benefits justify the
compliance costs of the rule. We request public comment on any costs of
the rule that we may not have considered.
E. Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, DHS has determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
The information collection requirements (Form I-526, I-829, Form I-
485, and Form I-131) contained in this rule have been previously
approved for use by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act. The OMB control numbers for these information
collections are: 1615-0026, 1615-0045, 1615-0023, and 1615-0013,
respectively.
USCIS will be creating a supplement to the Form I-829 to
accommodate special information that eligible aliens under Public Law
107-273 must provide to establish eligibility. The supplement will
require the conditional resident to provide information regarding all
commercial enterprises in the United States in which he or she has
invested, the number of jobs created with respect to each commercial
enterprise, and, where applicable, credits for previous investments
that were made and jobs that were created.
Accordingly, the Form I-829 is being revised to include the new
supplement. This revision is subject to review by the OMB under the
Paperwork Reduction Act of 1995. Written comments are encouraged and
will be accepted until November 28, 2011. When submitting comments on
the information collection, your comments should address one or more of
the following four points.
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of the information on
those who are to respond, including through the use of any and all
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Overview of Information Collection
(1) Type of information collection: Revision of currently approved
information collection.
(2) Title of form/collection: Petition by Entrepreneur to Remove
Conditions.
(3) Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-829
and Supplement, U.S. Citizenship and Immigration Services.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Individuals and households. This form
provides a uniform petition that enables alien entrepreneurs to request
the removal of the conditional basis of their lawful permanent resident
status.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: 1931
respondents for Form I-829 at 1 hour and 5 minutes, and 602 respondents
filing the supplement at 22 minutes per response.
(6) An estimate of the total of public burden (in hours) associated
with the collection: Total reporting burden hours is 2312.
[[Page 59945]]
All comments and suggestions or questions regarding the Form I-829
and supplement should be directed to the Regulatory Products Division,
Office of the Executive Secretariat, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 20 Massachusetts Avenue,
NW., Washington, DC 20529-2020.
List of Subjects
8 CFR Part 216
Administrative practice and procedure, Aliens.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, DHS proposes to amend chapter I of title 8 of the Code
of Federal Regulations as follows:
PART 216--CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS
1. The authority citation for part 216 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b; and 8
CFR part 2.
2. Section 216.7 is added to read as follows:
Sec. 216.7 Removal of conditions pursuant to sections 11031 to 11034
of Public Law 107-273.
(a) Removal of conditional basis of permanent resident status for
certain aliens pursuant to section 11031 of Public Law 107-273.
(1) Definitions. As used in paragraph (a) of this section, the
term:
Denied initial Form I-829 means an initial Petition by Entrepreneur
to Remove Conditions (Form I-829), that the INS or Service director
denied on the merits of the petition.
Initial Form I-829 means a Form I-829 that an eligible alien timely
filed before November 2, 2002.
Qualifying Form I-526 means an Immigrant Petition by Alien
Entrepreneur (Form I-526), that INS approved after January 1, 1995 and
before August 31, 1998.
Second petition to remove conditions means a petition to remove
conditions (Form I-829 or successor form) and any supporting
documentation that an alien must file following an initial adverse
determination.
(2) Eligible Aliens. Eligible aliens are those aliens described in
section 11031(b) of Public Law 107-273 except:
(i) Any otherwise eligible alien who has been placed into
deportation or removal proceedings and who is deportable or removable
on grounds other than the denial of Form I-829;
(ii) An eligible alien who has obtained lawful permanent resident
status (whether subject to conditions or not) on a basis unrelated to
the conditional resident status at issue in the initial Form I-829.
Such alien's dependent spouse and children will also no longer be
deemed eligible aliens;
(iii) An eligible alien who makes or has previously made a written
request to withdraw his or her initial Form I-829 will no longer be
deemed an eligible alien upon the written notice by USCIS acknowledging
the withdrawal request. Such alien's dependent spouse and children will
also no longer be deemed eligible aliens. The conditional resident
status of such alien(s) will terminate as of the date of the notice; or
(iv) Any alien who has abandoned his or her conditional residence
by filing the Abandonment by Alien of Status as Lawful Permanent
Resident form (Form I-407 or successor form) or an attestation in
writing asserting the alien's abandonment of his or her status,
regardless of whether he or she withdrew the petition to remove
conditions on lawful permanent resident status or obtained lawful
permanent resident status by any other means.
(3) Treatment of pending deportation or removal proceedings. DHS
has agreed to the administrative closure of any pending deportation or
removal proceedings, including proceedings reopened pursuant to section
11031(b)(2) of Public Law 107-273, in order to make the determinations
required under this paragraph. DHS will file a motion to re-calendar
the proceedings with the Executive Office for Immigration Review after
USCIS has issued an initial determination on the eligible alien's
denied initial Form I-829 and, if applicable, after USCIS has issued a
second determination on the eligible alien's second petition to remove
conditions.
(4) Initial determination. USCIS will make determinations on the
initial Form I-829 pursuant to section 11031(c)(1) of Public Law 107-
273 based on the evidence previously submitted with Form I-829 and
without requesting additional evidence or an interview.
(i) Favorable determination. Upon a favorable determination on the
initial Form I-829, USCIS will remove the conditional basis of his or
her status (and that of the alien's spouse and/or children if their
status was obtained under section 216A of the Act) effective on the
second anniversary of the alien's admission for permanent residence, if
the alien is not in deportation or removal proceedings. If the alien is
in deportation or removal proceedings, regardless of whether he or she
is physically present in the United States, DHS must file a motion to
recalendar proceedings with the immigration judge. A favorable
determination is one in which USCIS has determined that the alien has
met the job creation and capital investment requirements, and the
initial Form I-829 did not contain material misrepresentations.
(ii) Notice and opportunity for rebuttal of adverse determinations.
If USCIS makes an adverse determination on the initial Form I-829,
USCIS will provide the alien with written notice of the determination
pursuant to section 11031(c)(1)(F) of Public Law 107-273. The notice
will provide the alien with 12 weeks from the date of the notice to
submit evidence in writing to rebut any adverse determination. If the
adverse determination is based upon failure to satisfy the capital
investment or the job creation requirements, the notice of adverse
determination must include a statement notifying the alien of the
opportunity to submit information relating to capital investment and/or
job creation in commercial enterprises not identified in the initial
Form I-829. To request consideration of job creation and capital
investments based on additional commercial enterprises, the alien must
file a supplement to the petition to remove conditions with the alien's
written rebuttal. The alien must also submit supporting evidence with
the supplement, as described in 8 CFR 216.7(a)(5)(i)(C). If an eligible
alien seeks to submit evidence of a commercial enterprise not
identified in the initial Form I-829, the amount of the required
investment shall be calculated as provided in proposed 8 CFR
216.7(a)(5)(iii). During the 12 week rebuttal period, the alien (and
the alien's spouse and/or children) remains a conditional resident.
USCIS will determine whether to reverse the adverse determination at
the conclusion of the 12 week rebuttal period whether or not a rebuttal
response is received.
(iii) Notice following opportunity to rebut. If USCIS reverses the
adverse determinations following the opportunity to rebut, USCIS must
send the alien written notice stating the decision to reverse the
adverse determinations. In addition, the procedures in 8 CFR
216.7(a)(4)(i) applicable to favorable determinations apply. If USCIS
does not reverse the adverse determinations, the procedures in 8 CFR
216.7(a)(4)(iv) and (v) apply. In the case of multiple investors, jobs
will be allocated among the investors in accordance with 8 CFR
204.6(g).
(iv) Notice following rebuttal period affirming adverse
determinations for
[[Page 59946]]
aliens with pending deportation or removal proceedings. Following the
alien's opportunity to submit rebuttal evidence, if USCIS does not
reverse the adverse determinations with respect to an alien who is in
deportation or removal proceedings, USCIS will send written notice to
such alien with this decision, the reasons therefor, and the
determinations regarding the number of qualifying jobs created and
amount of capital investment made as provided by paragraph (a)(4)(v)(D)
of this section and the date described in section 11031(c)(1)(D) of
Public Law 107-273 that USCIS applied to each determination (if
applicable). Subject to paragraph (a)(4)(vi) of this section, DHS will
move to recalendar deportation or removal proceedings.
(v) Notice following rebuttal period affirming adverse
determinations and termination or continuation of status for eligible
aliens not in removal proceedings. Following the alien's opportunity to
submit rebuttal evidence, if USCIS does not reverse the adverse
determinations with respect to an alien who is not in removal
proceedings, USCIS will send written notice to such alien with this
decision, the reasons therefor, and a statement of USCIS's
determination regarding the number of qualifying jobs created and
capital investment made, as provided by paragraph (a)(4)(v)(D) of this
section, and the date described in section 11031(c)(1)(D) of Public Law
107-273 that USCIS applied to each determination (if applicable).
(A) Termination if adverse determination based on material
misrepresentation. Subject to paragraph (a)(4)(vi) of this section, if
the adverse determination is based, in whole or in part, on material
misrepresentation as defined in 8 CFR 216.7(c)(1), the alien's lawful
permanent resident status and that of his or her spouse and/or any
children (if such status was obtained on a conditional basis under
section 216A of the Act) will be terminated effective on the date of
the notice required by 8 CFR 216.7(a)(4)(ii). If the alien appeals the
adverse determination to the BIA or federal courts pursuant to 8 CFR
216.7(a)(4)(vi), then termination is effective on the date of the
highest appellate body's decision. DHS will notify the alien to
surrender his or her Form I-551. The alien may seek review of the
decision to terminate in deportation or removal proceedings.
(B) Adverse determination based on failure to establish capital
investment and/or job creation. Subject to paragraph (a)(4)(vi) of this
section, USCIS will extend the conditional residence of an eligible
alien (and that of the alien's spouse and/or children if their status
was obtained under section 216A of the Act) for a two-year period upon
an adverse determination that is not based on a material
misrepresentation. The notice provided under 8 CFR 216.7(a)(4)(v) will
include notification of the extension of conditional residence.
(C) Start date for continuation of conditional residence. The
extension of an alien's permanent resident status on a conditional
basis and that of the alien's spouse and any children (if such status
was obtained under section 216A of the Act) will begin on the date of
the decision following the opportunity for rebuttal or the last day of
the rebuttal period if the alien does not submit rebuttal evidence. If
the alien seeks administrative or judicial review of the adverse
determination pursuant to 8 CFR 216.6(a)(vi), the two-year extension
will commence on the date of the highest appellate body's decision. If
the alien is in deportation or removal proceedings, then the date of
the immigration judge's decision to continue conditional residence will
mark the starting point for the new two-year period. Such decision
cannot be made before the alien exhausts all avenues of administrative
or judicial review.
(D) Determination and crediting of qualifying jobs created and
capital investment made. The number of qualifying jobs created and
capital investment made as determined by USCIS in the initial
determination will be credited for purposes of the second determination
under 8 CFR 216.7(a)(5).
(vi) Administrative and judicial review. An alien may seek
administrative review with the BIA of an adverse determination. While
the appeal to the BIA and judicial review of such appeal, if any, is
pending, the alien's conditional permanent resident status and that of
his or her spouse and/or children (if such status was obtained under
section 216A of the Act) will continue.
(5) Second determination. (i) Filing petition to remove conditions.
To remove the conditional basis of the permanent resident status of an
eligible alien whose conditional resident status was continued for a
new two-year period, the alien must meet the requirements for removal
of conditions in section 11031(c)(2) of Public Law 107-273 and in this
section. The alien must file a second petition to remove conditions,
with the supplement to request consideration of additional commercial
enterprises (if applicable), and in accordance with the form
instructions, within the 90-day period before the second anniversary of
the continuation of the conditional basis. The second petition to
remove conditions must be accompanied by the required fee and any
supporting documentary evidence necessary to establish that the alien
meets the requirements in section 11031(c)(2) of Public Law 107-273 for
removal of conditions and in this section, including, but not limited
to the following:
(A) If an adverse determination was based on failure to meet the
job creation requirement of section 11031(c)(1)(A)(ii) of Public Law
107-273, evidence of the number of qualifying jobs created since
conditional resident status was continued and the beginning and ending
dates of the jobs. Evidence may include, but is not limited to, payroll
records, tax documents, and Employment Eligibility Verification (Forms
I-9 or any successor forms).
(B) If the adverse determination was based on failure to meet the
capital investment requirement of section 11031(c)(1)(A)(iii) of Public
Law 107-273, evidence of the alien's capital investment in one or more
commercial enterprises since conditional resident status was continued
establishing that the alien is in substantial compliance with the
capital investment requirement described in section 216A(d)(1)(B) of
the Act as of the date of USCIS' second determination. Such evidence
may include, but is not limited to, audited financial statements,
federal tax returns, bank statements, bank wire transfers, or escrow
agreements, or other probative evidence.
(C) Regardless of the bases for the adverse determination, evidence
of any commercial enterprise that the alien wants USCIS to consider
(except any evidence previously submitted in connection with the
initial Form I-829 or initial determination), including, but not
limited to, its formation and current ownership and such other evidence
as:
(1) Audited financial statements, or other probative evidence of
the alien's capital investment in the commercial enterprises to be
considered;
(2) Articles of incorporation, certificate of merger or
consolidation, partnership agreement, joint venture agreement, business
trust agreement, or other similar organizational document for the
commercial enterprise; and
(3) Certificate evidencing authority to do business in a state or
municipality or, if the form of the business does not require such a
certificate, a statement to that effect.
(D) In the case of a ``troubled business'' as defined in 8 CFR
204.6(j)(4)(ii), evidence that the
[[Page 59947]]
commercial enterprise maintained the number of existing employees at no
fewer than the pre-investment level for the period following admission
as a conditional permanent resident. Such evidence may include payroll
records, relevant tax documents, and Employment Eligibility
Verification forms (Form I-9 or any successor form).
(ii) Termination of permanent resident status for failure to file
petition.
(A) Failure to properly file the second petition to remove
conditions within the 90-day period before the second anniversary of
the continuation of the conditional basis will result in the automatic
termination of the alien's permanent resident status and the initiation
of removal proceedings unless such late filing is excused under
paragraph (a)(5)(ii)(B) of this section. No appeal will lie from this
decision. USCIS will send a written notice of termination and, as
appropriate, issue an NTA or file a motion to re-calendar proceedings
with the immigration judge pursuant to 8 CFR 216.7(a)(4)(iv). The alien
may request a review of the determination in proceedings.
(B) The second petition to remove conditions may be considered, at
USCIS's discretion, to be filed prior to the second anniversary of the
continuation of the alien's conditional resident status and accepted as
a late petition if USCIS determines that failure to timely file was for
good cause and due to extenuating circumstances. If the late petition
is filed prior to jurisdiction vesting with the immigration judge
(whether by issuance of an NTA or motion to re-calendar) in removal
proceedings and USCIS excuses the late filing, USCIS will restore the
alien's conditional permanent resident status and adjudicate the
petition on the merits pursuant to this paragraph. If the second
petition to remove conditions is not filed until after jurisdiction
vests with the immigration judge and USCIS excuses the late filing, DHS
and the alien may file a joint motion with the immigration judge to
administratively close or terminate proceedings as appropriate. USCIS
will then restore the alien's conditional permanent resident status and
adjudicate the petition on the merits pursuant to this paragraph.
(iii) Consideration of capital investments that are both in and out
of targeted employment areas when making determinations on the
petition. If an eligible alien requests consideration of capital
investments in commercial enterprises that are both located within a
targeted employment area, and not located in a targeted employment area
as defined by 8 CFR 204.6(f), USCIS will calculate the prorated
percentage of the alien's capital investment in commercial enterprises
located in a targeted employment area and the prorated percentage of
the eligible alien's capital investment based on capital investments in
commercial enterprises that are not located in a targeted employment
area. USCIS will combine the prorated percentages when making a
determination as to whether the alien substantially complies with the
capital investment requirement.
(iv) Crediting of jobs previously created and prior capital
investments. USCIS must credit the number of jobs created and prior
capital investments made as determined at the initial determination.
(v) Favorable determination and removal of conditions. Where the
alien is not subject to deportation or removal proceedings, USCIS will
remove the conditional basis of an eligible alien's status and that of
his or her spouse and/or children (if such status was obtained under
section 216A of the Act) effective on the second anniversary of the
continuation of conditional residence and notify such alien(s) in
writing upon a favorable determination on the petition to remove
conditions. Where the alien is subject to deportation or removal
proceedings, USCIS will notify the alien in writing of the favorable
determination and DHS will file a motion to re-calendar proceedings.
(vi) Adverse determinations.
(A) Notice and opportunity for rebuttal of adverse determination.
If USCIS makes an adverse determination on the petition to remove
conditions, USCIS will provide the alien with written notice of the
determination and allow 12 weeks from the date of the notice for the
alien to submit evidence in writing to rebut. If the alien submits
evidence sufficient to rebut the adverse determination, USCIS will
notify the alien in writing and the case will be treated as a favorable
determination as provided in paragraph (a)(5)(v) of this section.
(B) Termination if adverse determination.
(1) Failure to submit rebuttal evidence. If the alien does not
submit rebuttal evidence within the 12-week period, the alien's
conditional resident status, and that of his spouse and children (if
such status was obtained on conditional basis under section 216A of the
Act) will be automatically terminated after the expiration of the 12-
week period. USCIS will provide written notice to the alien(s) of the
automatic termination and require the alien(s) to surrender any Form(s)
I-551 to USCIS. DHS will, as appropriate, issue a Notice to Appear, or
file a motion to re-calendar proceedings with EOIR. There is no appeal
of the decision to terminate conditional resident status, but the alien
may request a review of the adverse determination in deportation or
removal proceedings.
(2) Insufficient rebuttal evidence. If the alien timely submits
rebuttal evidence, but USCIS determines that the evidence is not
sufficient to rebut the adverse determination, USCIS will terminate the
conditional resident status of the alien and that of his or her spouse
and/or children (if such status was obtained on a conditional basis
under section 216A of the Act) if the alien is not in deportation or
removal proceedings. If the alien is in deportation or removal
proceedings, USCIS will provide written notice to the alien(s) of the
decision, and the reason(s) therefore. The alien and the alien's spouse
and children (as appropriate) will be required to surrender any Forms
I-551 to USCIS. DHS will, as appropriate, issue an NTA or file a motion
to re-calendar proceedings with the immigration judge. There is no
appeal of this decision, but the alien may request a review of the
adverse determination in deportation or removal proceedings.
(6) Death of eligible alien and effect on spouse and children. If
the principal eligible alien dies during his or her period of
conditional residence, the spouse and/or children of such alien will be
eligible for removal of conditions if it can be demonstrated that the
conditions for removal of conditions have been met, regardless of
whether the alien, spouse, or children individually or collectively met
such conditions.
(b) Removal of conditions for aliens granted adjustment of status
pursuant to 8 CFR 245.25 or admitted as a conditional resident based
upon an immigrant visa granted pursuant to section 11032 of Public Law
107-273.
(1) Applicability of 8 CFR 216.6. Unless otherwise provided in
paragraphs (b)(2) and (b)(3) of this section, 8 CFR 216.6(a) through
(d) apply to aliens whose conditional resident status was obtained on
the basis of an adjustment of status application approved pursuant to 8
CFR 245.25 or an immigrant visa approved on the basis of section 11032
of Public Law 107-273.
(2) Petition. An alien who was granted the status of an alien
lawfully admitted for permanent residence on a conditional basis
pursuant to section 11032 of Public Law 107-273, must file a petition
to remove conditions (Form I-829 or any successor form) in accordance
with 8 CFR 216.6(a) and the
[[Page 59948]]
form instructions and, if appropriate, the supplement to the form and
its instructions. In lieu of 8 CFR 216.6(a)(4), such an alien must
include the following documentary evidence with the petition to remove
conditions and supplement:
(i) Evidence that all eligible enterprises, considered together, in
which the alien invested created full-time jobs for not fewer than 10
qualifying employees, and that such jobs exist or existed on either of
the dates described in section 11032(e)(3) of Public Law 107-273. Such
evidence may include payroll records, relevant tax documents, and
Employment Eligibility Verification forms (Forms I-9 or any successor
forms);
(ii) In the case of a ``troubled business'' as defined in 8 CFR
204.6(e), evidence that the number of existing employees is at no fewer
than the pre-investment level for the conditional resident period. Such
evidence may include payroll records, relevant tax documents, and
Employment Eligibility Verification forms (Forms I-9 or any successor
forms);
(iii) In the case of an investment within an approved regional
center, evidence that the alien's investment created full-time jobs,
either directly or indirectly, for not fewer than 10 qualifying
employees. Such evidence may include payroll records, relevant tax
documents, and Employment Eligibility Verification forms (Forms I-9 or
any successor forms);
(iv) Evidence of the dates on which the jobs existed;
(v) Considering the alien's investment in all enterprises on either
of the dates cited in section 11032(e)(3) of Public Law 107-273 or on
both such dates, evidence that the alien is or was in substantial
compliance with the requirement to invest or is actively in the process
of investing the requisite capital. If the petition to remove
conditions is based upon commercial enterprises located both within and
outside of a TEA, the investment amount must comply with proposed 8 CFR
216.7(a)(5)(iii). Such evidence may include, but is not limited to,
audited financial statements, federal tax returns, bank statements,
bank wire transfers, escrow agreements, or other material evidence;
(vi) Evidence of any commercial enterprise in the United States in
which the eligible alien made a capital investment and the formation
and current ownership structure of such commercial enterprise
including, but not limited to:
(A) Articles of incorporation, certificate of merger or
consolidation, partnership agreement, joint venture agreement, business
trust agreement, or other similar organizational document for the
commercial enterprise; and
(B) Certificate evidencing authority to do business in a state or
municipality or, if the form of the business does not require such a
certificate, a statement to that effect.
(C) Determination on petition. USCIS will make a determination on
the petition to remove conditions in accordance with section
11032(e)(2) of Public Law 107-273, in lieu of section 216A(c)(3) of the
Act and 8 CFR 216.6(c)(1).
(c) Definitions. (1) Material misrepresentation. Under this
section, a material misrepresentation includes a statement or
representation in an eligible alien's petition to remove conditions, as
originally filed or supplemented, or any accompanying documentation
which is determined, as a matter of discretion, to be both false and a
statement or representation to which importance would reasonably be
attached for determining whether to grant the petition, without regard
to the petitioner's or any other person's intent or to whether or not
there was detrimental reliance upon the statement or representation.
Material misrepresentation also includes any omission of fact that has
the effect of making any material representation in the petition to
remove conditions or accompanying documentation false.
(2) Substantial compliance with the capital investment. For
purposes of paragraphs (a) and (b) of this section, substantial
compliance with the capital investment requirement means that the alien
has invested nearly all of the requisite amount, with evidence that any
balance is legally obligated for final disbursement within a reasonable
period of time of the date on which the initial petition to remove
conditions (Form I-829 or successor form) was filed (not applicable to
petitions to remove conditions under paragraph (a)(6) of this section);
6 months after that date in the case of petitions to remove conditions
under paragraph (a)(5) of this section only; or the date upon which the
determinations are made. Funds that cannot be counted toward compliance
with the capital investment requirement include funds returned to the
alien in the form of guaranteed interest payments or as redemption for
his or her interest, or otherwise diverted, as these funds would not
have been made available to the commercial enterprise for the purposes
of creating qualifying jobs.
(3) Full-time. The term ``full-time'' means a position that
requires at least 35 hours of service per week at any time, regardless
of who fills the position. Such a position must be required by the
commercial enterprise at all times and filled by one or more qualifying
employees as defined by 8 CFR 204.6(e).
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
3. The authority citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L.
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat.
2681; Title VII of Pub. L. 110-229; 8 CFR part 2.
4. Section 245.25 is added to read as follows:
Sec. 245.25 Adjustment of status of certain alien entrepreneurs under
section 11032 of Public Law 107-273.
(a) Definitions. As used in this section, the term:
Application for adjustment of status means a Form I-485,
Application to Register Permanent Residence or Adjust Status (or
successor form) and any supporting documentation.
Eligible alien in this section means an eligible alien as described
in section 11032 of Public Law 107-273.
Form I-485 that is no longer pending means that the qualifying Form
I-485 was subsequently terminated for abandonment or denied by the
Immigration and Naturalization Service on or before November 2, 2002.
Qualifying Form I-485 means a Form I-485 filed before November 2,
2002.
Qualifying Form I-526 means a Form I-526, Immigrant Petition by
Alien Entrepreneur, that INS approved after January 1, 1995 and before
August 31, 1998.
(b) Procedures for eligible aliens and their spouses and children.
(1) Requesting consideration for eligibility determinations. An
eligible alien must request USCIS to consider his or her qualifying
Form I-485 for approval under section 11032 of Public Law 107-273 and
must demonstrate that he or she meets the requirements in section 11032
of Public Law 107-273 and this section. Failure to follow the
procedures in paragraph (b) of this section or to demonstrate
eligibility will result in denial of the qualifying Form I-485 in
accordance with paragraph (e) of this section. An eligible alien must:
(i) In accordance with the form instructions, file (without fee) a
newly completed application for adjustment of status (Form I-485 or
succeeding form) with supporting documentation signed and dated after
the effective date when
[[Page 59949]]
this rule is published as a final rule and on or before 180 days from
the effective date when this rule is published as a final rule;
(ii) Include payment of a biometrics fee with each application for
adjustment of status; and
(iii) Appear as requested by USCIS for the capture of biometric
information and, if USCIS determines it to be necessary, an interview.
(2) Overseas aliens. Aliens who are not physically present in the
United States may submit an application for adjustment of status from
outside the United States to facilitate a determination whether they
are eligible aliens. Such aliens, upon request, must appear for the
submission of certain biometric information at the DHS office located
outside the United States having jurisdiction over the alien's foreign
residence.
(3) Forms I-485 that are no longer pending. An alien whose Form I-
485 is no longer pending must include with his or her submission in
paragraph (b) of this section written evidence demonstrating that the
reason an Application to Register Permanent Resident or Adjust Status
(Form I-485) is no longer pending is either because he or she failed to
satisfy the job creation requirement in section 203(b)(5)(A)(ii) of the
Act or departed the United States without advance parole. A copy of a
decision denying a Application to Register Permanent Resident or Adjust
Status (Form I-485) on either of these bases satisfies this
requirement. Acceptable secondary evidence includes, but is not limited
to an alien's sworn statement together with: travel records; payroll
records; alien's request for withdrawal of the Application to Register
Permanent Resident or Adjust Status (Form I-485).
(4) Revoked qualifying Immigrant Petitions by Alien Entrepreneur.
An alien whose qualifying Immigrant Petition by Alien Entrepreneur
(Form I-526) was revoked must include with his or her submission, as
described in paragraph (b) of this section, evidence demonstrating that
the reason for the revocation was that such alien failed to satisfy the
job creation requirement in section 203(b)(5)(A)(ii) of the Act. A copy
of a decision revoking an Immigrant Petition by Alien Entrepreneur
satisfies this requirement. Acceptable secondary evidence includes, but
is not limited to the alien's sworn statement accompanied by additional
documentation, such as a letter to INS responding to a notice of intent
to revoke and documents filed by the alien related to an appeal of the
revocation of the Immigrant Petition by Alien Entrepreneur.
(5) Spouse and children. Applications for adjustment of status by
an alien's accompanying spouse and children must be filed with the
alien's application for adjustment of status. If the spouse and
children are following to join the alien, then their applications for
adjustment of status must be filed no later than USCIS's determination
of the alien's eligibility. The applications must contain supporting
documentation of eligibility, including but not limited to evidence of
the current relationship between the alien and spouse and children such
as a marriage certificate and birth certificates.
(c) USCIS determinations. Following receipt of the required
documentation and information in paragraph (b) of this section, USCIS
will make a determination on whether an alien is an eligible alien, and
whether the alien and any spouse and children, as applicable, qualify
for adjustment of status to that of a conditional resident in
accordance with section 11032 of Public Law 107-273 and this section.
If USCIS determines that the alien does not qualify for conditional
residence, it will deny Form I-485 for aliens in the United States and
terminate processing of the request for benefits under this section for
aliens who are residing outside the United States in accordance with
paragraph (e) of this section.
(1) Permanent residence on other grounds. USCIS will make a
determination that an alien does not qualify for conditional residence
under section 11032 of Public Law 107-273 if he or she obtained
permanent resident status on other grounds.
(2) Departing the United States while qualifying Applications to
Register Permanent Resident or Adjust Status are pending. If an
eligible alien with a pending, qualifying Application to Register
Permanent Resident or Adjust Status (Form I-485 or any successor form)
departed the United States after November 2, 2002 without advanced
parole, USCIS will make a determination that the alien does not qualify
for conditional resident status under section 11032 of Public Law 107-
273 and will deny the Application to Register Permanent Resident or
Adjust Status.
(3) Eligible aliens and accompanying spouse and children who are
not physically present in the United States. Following receipt of a new
Application to Register Permanent Resident or Adjust Status (Form I-485
or any successor form) (including medical examination in accordance
with 8 CFR 245.5 and the instructions to the Application to Register
Permanent Resident or Adjust Status) and biometric fee in accordance
with paragraph (b) of this section, USCIS will send written notice to
the eligible alien requiring an appearance by the alien and any
accompanying or following to join spouse and children for biometric
capture and an interview at the USCIS office located outside the United
States having jurisdiction over the alien's foreign residence. If USCIS
determines that the alien qualifies as an eligible alien and for
conditional resident status under section 11032 of Public Law 107-273,
USCIS will send the eligible alien written notice of USCIS'
determination and require the alien and accompanying or following to
join spouse and children to return to the United States by obtaining
parole, described in 8 CFR 212.5, and, if granted parole, arrive in the
United States by the date stated in the parole document. To request
parole, the alien must file, by mail and with fee, a signed and
completed application for parole on an Application for Travel Document,
Form I-131 or successor form, in accordance with the form instructions.
The alien and accompanying or following to join spouse and children may
be requested to appear at such office for biometric capture or an
interview in connection with the parole request. If the eligible alien,
or his or her spouse and children, is not granted parole by USCIS or is
not paroled upon his or her arrival to the United States, USCIS will
deny his or her Application to Register Permanent Resident or Adjust
Status in accordance with paragraph (e) of this section.
(d) Approval. Upon a determination by USCIS that the alien
qualifies for conditional resident status under section 11032 of Public
Law 107-273, USCIS will approve the eligible alien's qualifying
Application to Register Permanent Resident or Adjust Status (Form I-485
or any successor form) and that of his or her spouse and children
physically present in the United States, provided that USCIS has not
revoked the alien's approved Immigrant Petition by Alien Entrepreneur
(Form I-526 or any successor form), and all qualifying Applications to
Register Permanent Resident or Adjust Status are pending or have been
reopened. USCIS may not approve such Applications to Register Permanent
Resident or Adjust Status until the Department of State allocates an
immigrant visa number. Upon approval of the qualifying Application to
Register Permanent Resident or Adjust Status, USCIS will grant the
alien and his or her spouse and children, the status of an alien
lawfully
[[Page 59950]]
admitted for permanent residence on a conditional basis under section
216A of the Act as of the date of such approval. USCIS will send
written notice of the decision to the eligible alien.
(e) Denials and terminations. (1) If USCIS determines that the
eligible alien does not qualify for conditional resident status under
section 11032 of Public Law 107-273, USCIS will deny the eligible
alien's qualifying Application to Register Permanent Resident or Adjust
Status (Form I-485 or any successor form) and any Applications to
Register Permanent Resident or Adjust Status of his or her spouse and
children considered under this section. USCIS will send the eligible
alien written notice of the denial and reasons for the denial. A denial
of the qualifying Application to Register Permanent Resident or Adjust
Status is not subject to appeal, but can be reviewed by an immigration
judge in removal proceedings.
(2) If USCIS determines that an alien who is not physically present
in the United States is not an eligible alien, USCIS will terminate
processing of the request for benefits pursuant to this section. If
USCIS determines that an alien who is overseas does qualify as an
eligible alien, but that the spouse or child of the eligible alien does
not qualify for benefits pursuant to this section, USCIS will terminate
processing of the request for benefits. There is no administrative
appeal of this decision.
(f) Petitions revoked on a basis other than failure to meet job
creation requirement. If USCIS revoked the Immigrant Petition by Alien
Entrepreneur (Form I-526 or any successor form) due to grounds of
ineligibility other than failure to meet the job creation requirement,
USCIS will not disregard the revocation under Public Law 107-273 and
will deny the application for adjustment of status if it is pending.
Janet Napolitano,
Secretary.
[FR Doc. 2011-24619 Filed 9-26-11; 8:45 am]
BILLING CODE 9111-97-P