Volume 6 - Immigrants

Appendices

Step One: Review Evidence Submitted with Extraordinary Ability Petitions
Criterion^[1]	Scope of Review
Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.^[2]	First, USCIS determines if the person was the recipient of prizes or awards. The description of this type of evidence in the regulation indicates that the focus should be on the person's receipt of the awards or prizes, as opposed to his or her employer's receipt of the awards or prizes. Second, USCIS determines whether the person has received lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor. Relevant considerations regarding whether the basis for granting the prizes or awards was excellence in the field include, but are not limited to: The criteria used to grant the awards or prizes; The national or international significance of the awards or prizes in the field; and The number of awardees or prize recipients, as well as any limitations on competitors (an award limited to competitors from a single institution, for example, may have little national or international significance).
Membership in associations in the field for which classification is sought that require outstanding achievement of their members, as judged by recognized national or international experts in their disciplines or fields.^[3]	USCIS determines if the association for which the person claims membership requires that members have outstanding achievements in the field as judged by recognized experts in that field. The petitioner must show that membership in the associations is based on the person being judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought. For example, admission to membership in the National Academy of Sciences as a foreign associate requires candidates to be nominated by an academy member, and membership is ultimately granted based upon recognition of the candidate's distinguished achievements in original research.^[4] Associations may have multiple levels of membership. The level of membership afforded to the person must show that in order to obtain that level of membership, the person was judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought. Relevant factors that may lead to a conclusion that the person's membership in the associations was not based on outstanding achievements in the field include, but are not limited to, instances where the person's membership was based: Solely on a level of education or years of experience in a particular field; On the payment of a fee or by subscribing to an association's publications; or On a requirement, compulsory or otherwise, for employment in certain occupations, such as union membership or guild affiliation for actors.
Published material about the person in professional or major trade publications or other major media relating to the person's work in the field for which classification is sought. Such evidence must include the title, date, and author of the material, and any necessary translation.^[5]	First, USCIS determines whether the published material was related to the person and the person's specific work in the field for which classification is sought. The published material should be about the person, relating to the person’s work in the field, not just about the person’s employer or another organization that the person is associated with. Marketing materials created for the purpose of selling the person's products or promoting the person’s services are not generally considered to be published material about the beneficiary. However, the person and the person’s work need not be the only subject of the material; published material that covers a broader topic but includes a substantial discussion of the person’s work in the field and mentions the person in connection to the work may be considered material “about” the person relating to the person’s work. Evidence may include documentation such as print or online newspaper or magazine articles, popular and academic journal articles, books, textbooks, similar publications, or a transcript of professional or major audio or video coverage of the person and the person’s work. Second, USCIS determines whether the publication qualifies as a professional publication, major trade publication, or major media publication. Evidence of published material in professional or major trade publications or in other major media publications about the person should establish that the circulation (online or in print) or viewership is high compared to other statistics and show who the intended audience is, as well as the title, date, and author of the material.
The person's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought.^[6]	USCIS determines whether the person has acted as the judge of the work of others in the same or an allied field of specialization. The petitioner must show that the person has not only been invited to judge the work of others, but also that the person actually participated in the judging of the work of others in the same or allied field of specialization. For example: Peer reviewing for a scholarly journal, as evidenced by a request from the journal to the person to do the review, accompanied by proof that the review was actually completed. Serving as a member of a Ph.D. dissertation committee that makes the final judgment as to whether a candidate's body of work satisfies the requirements for a doctoral degree, as evidenced by departmental records.
The person's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.^[7]	First, USCIS determines whether the person has made original contributions in the field. Second, USCIS determines whether the person's original contributions are of major significance to the field. Officers must evaluate whether the original work constitutes major, significant contributions to the field. Although funded and published work may be "original," this fact alone is not sufficient to establish that the work is of major significance. For example, peer-reviewed presentations at academic symposia or peer-reviewed articles in scholarly journals that have provoked widespread commentary or received notice from others working in the field, or entries (particularly a goodly number) in a citation index that cite the person's work as authoritative in the field, may be probative of the significance of the person's contributions to the field of endeavor. Officers should take into account the probative analysis that experts in the field may provide in opinion letters regarding the significance of the person's contributions in order to assist in giving an assessment of the person's original contributions of major significance. That said, not all expert letters provide such analysis. Letters that specifically articulate how the person's contributions are of major significance to the field and their impact on subsequent work add value. Letters that lack specifics and simply use hyperbolic language do not add value and are not considered to be probative evidence that may form the basis for meeting this criterion.
The person's authorship of scholarly articles in the field, in professional or major trade publications or other major media.^[8]	First, USCIS determines whether the person has authored scholarly articles in the field. As defined in the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college, university, or research institution. In general, it should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. For other fields, a scholarly article should be written for learned persons in that field. ("Learned" is defined as "having or demonstrating profound knowledge or scholarship").^[9] Learned persons include all persons having profound knowledge of a field. Second, USCIS determines whether the publication qualifies as a professional publication, major trade publication, or major media publication. Evidence of published material in professional or major trade publications or in other major media publications should establish that the circulation (online or in print) is high compared to other circulation statistics and who the intended audience of the publication is.
Display of the person's work in the field at artistic exhibitions or showcases.^[10]	First, USCIS determines whether the work that was displayed is the person's work product. The description of this type of evidence in the regulation provides that the work must be the person's. Second, USCIS determines whether the venues (virtual or otherwise) where the person's work was displayed were artistic exhibitions or showcases. Merriam-Webster's online dictionary defines exhibition as a public showing (as of works of art, objects of manufacture, or athletic skill).^[11]
The person has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.^[12]	First, USCIS determines whether the person has performed in a leading or critical role for an organization, establishment, or a division or department of an organization or establishment. In evaluating such evidence, officers examine whether the role is (or was) leading or critical. For a leading role, officers look at whether the evidence establishes that the person is (or was) a leader within the organization or establishment or a division or department thereof. A title, with appropriate matching duties, can help to establish that a role is (or was), in fact, leading. For a critical role, officers look at whether the evidence establishes that the person has contributed in a way that is of significant importance to the outcome of the organization or establishment's activities or those of a division or department of the organization or establishment. A supporting role may be considered "critical" if the person's performance in the role is (or was) important in that way. It is not the title of the person's role, but rather the person's performance in the role that determines whether the role is (or was) critical. This is one criterion where letters from persons with personal knowledge of the significance of the person's leading or critical role can be particularly helpful to officers in making this determination, so long as the letters contain detailed and probative information that specifically addresses how the person's role for the organization, establishment, division, or department was leading or critical. Evidence of experience must consist of letters from employers.^[13] Second, USCIS determines whether the organization or establishment, or the department or division for which the person holds or held a leading or critical role, has a distinguished reputation. The relative size or longevity of an organization or establishment is not in and of itself a determining factor but is considered together with other information to determine whether a distinguished reputation exists. Merriam-Webster's online dictionary defines distinguished as marked by eminence, distinction, or excellence or befitting an eminent person.^[14]
The person has commanded a high salary, or other significantly high remuneration for services, in relation to others in the field.^[15]	USCIS determines whether the person's salary or remuneration is high relative to the compensation paid to others working in the field. Evidence regarding whether the person's compensation is high relative to that of others working in the field may take many forms. If the petitioner is claiming to meet this criterion, then the burden is on the petitioner to provide appropriate evidence. Examples may include, but are not limited to, geographical or position-appropriate compensation surveys and organizational justifications to pay above the compensation data. Officers may find the following websites helpful in evaluating the evidence provided by the petitioner: The Bureau of Labor Statistics (BLS) Overview of BLS Wage Data by Area and Occupation webpage; The Department of Labor's Career One Stop website; and The Department of Labor's Office of Foreign Labor Certification Online Wage Library. Persons working in different countries should be evaluated based on the wage statistics or comparable evidence in that country, rather than by simply converting the salary to U.S. dollars and then viewing whether that salary would be considered high in the United States.
Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.^[16]	USCIS determines whether the person has enjoyed commercial successes in the performing arts. This criterion focuses on volume of sales and box office receipts as a measure of the person's commercial success in the performing arts. Therefore, the mere fact that a person has recorded and released musical compilations or performed in theatrical, motion picture, or television productions would be insufficient, in and of itself, to meet this criterion. The evidence must show that the volume of sales and box office receipts reflect the person's commercial success relative to others involved in similar pursuits in the performing arts.
Comparable evidence to establish the person's eligibility if the standards do not readily apply to the beneficiary's occupation.^[17]	USCIS determines if the evidence submitted is comparable to the evidence required in 8 CFR 204.5(h)(3). This regulatory provision provides petitioners the opportunity to submit “comparable” evidence to establish the person beneficiary's eligibility, if it is determined that the standards described in the regulations do not readily apply to the person's occupation. When evaluating such comparable evidence, officers must consider whether the regulatory criteria are readily applicable to the person's occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in that regulation. General assertions that any of the ten objective criteria described in the regulations do not readily apply to the person's occupation are not probative and should be discounted. Similarly, claims that USCIS should accept witness letters as comparable evidence are not persuasive. On the other hand, the following are examples of where the comparable evidence provision might apply. A person who is an Olympic coach whose athlete wins an Olympic medal while under the person's principal tutelage would likely constitute evidence comparable to that in 8 CFR 204.5(h)(3)(v). Election to a national all-star or Olympic team might serve as comparable evidence for evidence of memberships in 8 CFR 204.5(h)(3)(ii). There is no comparable evidence for the one-time achievement of a major, international recognized award.

Footnotes

[^ 1] In some cases, evidence relevant to one criterion may be relevant to other criteria set forth in 8 CFR 204.5(h)(3).

[^ 2] See 8 CFR 204.5(h)(3)(i).

[^ 3] See 8 CFR 204.5(h)(3)(ii).

[^ 4] See National Academic of Sciences website.

[^ 5] See 8 CFR 204.5(h)(3)(iii).

[^ 6] See 8 CFR 204.5(h)(3)(iv).

[^ 7] See 8 CFR 204.5(h)(3)(v).

[^ 8] See 8 CFR 204.5(h)(3)(vi).

[^ 9] See Webster's II New College Dictionary (3rd ed. 2005).

[^ 10] See 8 CFR 204.5(h)(3)(vii).

[^ 11] See Merriam-Webster Dictionary’s definition of “exhibition.”

[^ 12] See 8 CFR 204.5(h)(3)(viii).

[^ 13] See 8 CFR 204.5(g)(1).

[^ 14] See Merriam-Webster Dictionary’s definition of “distinguished.”

[^ 15] See 8 CFR 204.5(h)(3)(ix).

[^ 16] See 8 CFR 204.5(h)(3)(x).

[^ 17] See 8 CFR 204.5(h)(4).

Step One: Review Evidence Submitted with Petition for Outstanding Professor or Researcher
Criterion^[1]	Scope of Review
Receipt of major prizes or awards for outstanding achievement in the academic field.^[2]	First, USCIS determines if the beneficiary was the recipient of prizes or awards. The description of this type of evidence in the regulation indicates that the focus must be on the beneficiary's receipt of the major prizes or awards, as opposed to his or her employer's receipt of the prizes or awards. Second, USCIS determines whether the beneficiary has received major prizes or awards for outstanding achievement in the academic field. Relevant considerations regarding whether the basis for granting the major prizes or awards for outstanding achievement in the academic field include, but are not limited to: The criteria used to grant the major prizes or awards; and The number of prize recipients or awardees, as well as any limitations on competitors (a prize or award limited to competitors from a single institution, for example, may not rise to the level of major).
Membership in associations in the academic field that require outstanding achievements of their members.^[3]	First, USCIS determines if the association for which the beneficiary claims membership requires outstanding achievements in the academic field. The petitioner must show that membership in the association(s) is based on the beneficiary's outstanding achievements in the academic field. Associations may have multiple levels of membership. The level of membership afforded to the beneficiary must show that it requires outstanding achievements in the academic field for which classification is sought. Relevant factors that may lead to a conclusion that the beneficiary's membership in the association was not based on outstanding achievements in the academic field include, but are not limited to, instances where the beneficiary's membership was based: Solely on a level of education or years of experience in a particular field; or On the payment of a fee or by subscribing to an association's publications.
Published material in professional publications written by others about the beneficiary's work in the academic field. Such material must include the title, date, and author of the material, and any necessary translation.^[4]	First, USCIS determines whether the published material was about the beneficiary's work. The published material should be about the beneficiary's work in the field, not just about the beneficiary’s employer or another organization that the beneficiary is associated with. Articles that cite the beneficiary's work as one of multiple footnotes or endnotes are not generally "about" the beneficiary's work. However, the beneficiary’s work need not be the only subject of the material; published material that covers a broader topic but includes a substantial discussion of the beneficiary’s work in the field may be considered material “about” the beneficiary’s work. Evidence may include documentation such as print or online articles in professional publications or a transcript of professional audio or video coverage of the beneficiary’s work. Second, USCIS determines whether the publication qualifies as a professional publication. Evidence of published material in professional publications about the beneficiary should establish the circulation (online or in print) or viewership and the intended audience of the publication, as well as the title, date, and author of the material.
The beneficiary's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field.^[5]	USCIS determines whether the beneficiary has participated, either individually or on a panel, as the judge of the work of others in the same or an allied academic field. The petitioner must show that the beneficiary has not only been invited to judge the work of others, but also that the beneficiary actually participated in the judging of the work of others in the same or allied academic field. For example: Peer reviewing for a scholarly journal, as evidenced by a request from the journal to the beneficiary to do the review, accompanied by proof that the review was actually completed. Serving as a member of a Ph.D. dissertation committee that makes the final judgment as to whether a candidate's body of work satisfies the requirements for a doctoral degree, as evidenced by departmental records.
The beneficiary's original scientific or scholarly research contributions to the academic field.^[6]	USCIS determines whether the beneficiary has made original scientific or scholarly research contributions to the academic field. The regulations do not require that the beneficiary's contributions be of "major significance." That said, the description of this type of evidence in the regulation does not simply require original research, but an original scientific or scholarly research contribution. Moreover, the description of this type of evidence in the regulation requires that the contribution must be "to the academic field," rather than an individual laboratory or institution. The regulations include a separate criterion for scholarly articles.^[7] Therefore, contributions are a separate evidentiary requirement from scholarly articles. Possible items that could satisfy this criterion include, but are not limited to: Citation history or patterns for the beneficiary's work, as evidenced by number of citations, as well as an examination of the impact factor for the journals in which the beneficiary publishes. While many scholars publish, not all are cited or publish in journals with significant impact factors. The petitioner may use web tools such as Google Scholar, SciFinder, and the Web of Science to establish the number of citations and the impact factor for journals. Since scholarly work tends to be specialized and expressed in arcane and specialized language, officers should take into account the probative analysis that experts in the field may provide in opinion letters regarding the beneficiary's contributions in order to assist in giving an assessment of his or her original contributions. That said, not all expert letters provide such analysis. Letters that specifically articulate how the beneficiary has contributed to the field and the impact on subsequent work add value. Letters that lack specifics and simply use hyperbolic language do not add value and are not considered to be probative evidence that may form the basis for meeting this criterion.
The beneficiary’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.^[8]	First, USCIS determines whether the beneficiary has authored scholarly articles in the field. As defined in the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college or university. It should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. Second, USCIS determines whether the publication qualifies as a scholarly book or as a scholarly journal with international circulation in the academic field. Evidence of published material in scholarly journals with international circulation should establish that the circulation (online or in print) is, in fact, international, and who the intended audience of the publication is. Scholarly journals are typically written for a specialized audience often using technical jargon. Articles normally include an abstract, a description of methodology, footnotes, endnotes, and bibliography.
Comparable evidence to establish the beneficiary's eligibility if the standards do not readily apply.^[9]	USCIS determines if the evidence submitted is comparable to the evidence required in 8 CFR 204.5(i)(3)(i). A petitioner for an outstanding professor or researcher does not need to establish that a particular standard is not readily applicable to the beneficiary's occupation. Instead, the petitioner may submit alternative, but qualitatively comparable evidence, if it establishes that the standards do not readily apply to that evidence. The existing evidentiary standards serve as a roadmap for determining, among other things, the quantity and types of evidence that should be submitted in order for such evidence to be considered “comparable.”^[10]

Footnotes

[^ 1] In some cases, evidence relevant to one criterion may be relevant to other criteria set forth in 8 CFR 204.5(i)(3).

[^ 2] See 8 CFR 204.5(i)(3)(i)(A).

[^ 3] See 8 CFR 204.5(i)(3)(i)(B).

[^ 4] See 8 CFR 204.5(i)(3)(i)(C).

[^ 5] See 8 CFR 204.5(i)(3)(i)(D).

[^ 6] See 8 CFR 204.5(i)(3)(i)(E).

[^ 7] See 8 CFR 204.5(i)(3)(i)(F).

[^ 8] See 8 CFR 204.5(i)(3)(i)(F).

[^ 9] See 8 CFR 204.5(i)(3)(ii).

[^ 10] See 81 FR 2068, 2075 (PDF) (January 15, 2016).

Relocation of Guidance to Appendix

This chapter was moved to an appendix. On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act of 2022 that includes, among other reforms, repeal of the former Regional Center Program under Sec. 610 of PL 102-395 and authority for a new Regional Center Program with various implementation effective dates for the program. An entity seeking regional center designation, therefore, may not do so under the provisions discussed in this chapter. Moreover, previously designated regional centers are no longer authorized, may no longer seek amendments, and are not required to comply with annual reporting requirements. USCIS is retaining this material in an appendix, however, for future reference. USCIS is adjudicating regional center-based Immigrant Petition by Alien Entrepreneur (Form I-526), filed before March 15, 2022, according to the applicable eligibility requirements at the time such petitions were filed (that is, the eligibility requirements in place before the enactment of the EB-5 Reform and Integrity Act of 2022).

Historical Guidance

ALERT: On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF).

On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF). While USCIS considers this decision, we will apply the EB-5 regulations that were in effect before the rule was finalized on Nov. 21, 2019, including:

No priority date retention based on an approved Form I-526;
The required standard minimum investment amount of $1 million and the minimum investment amount for investment in a Targeted Employment Area (TEA) of $500,000;
Permitting state designations of high unemployment TEAs; and
Prior USCIS procedures for the removal of conditions on permanent residence.

In other words, we are applying the regulations in effect before Nov. 21, 2019 in this chapter.

ALERT: Statutory authorization related to the EB-5 Immigrant Investor Regional Center Program expired at midnight on June 30, 2021.

Statutory authorization related to the EB-5 Immigrant Investor Regional Center Program expired at midnight on June 30, 2021. This lapse in authorization does not affect EB-5 petitions filed by investors who are not seeking a visa under the Regional Center Program. Due to the lapse in authorization related to the Regional Center Program, USCIS will reject the following forms received on or after July 1, 2021:

Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, except when the application type indicates that it is an amendment to the regional center’s name, organizational structure, ownership, or administration; and
Form I-526, Immigrant Petition by Alien Investor, when it indicates that the petitioner’s investment is associated with an approved regional center.

In general, we will not act on any pending petition or application of these form types that is dependent on the lapsed statutory authority until further notice.

The goal of the Regional Center Program is to stimulate economic growth in a specified geographic area. The regional center model can offer an immigrant investor already defined investment opportunities, thereby reducing the immigrant investor’s responsibility to identify acceptable investment vehicles. If the new commercial enterprise is located within the geographic area, and falls within the economic scope of the defined regional center, reasonable methodologies can be used to demonstrate indirect job creation.^[1] A regional center can be associated with one or more new commercial enterprises.

A regional center seeking to participate in the Regional Center Program must submit a proposal using the Application For Regional Center Under the Immigrant Investor Program (Form I-924).

USCIS may designate a regional center based on a general proposal for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. The statute further provides that a regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones.

In addition, the establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from immigrant investors, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have on the area.^[2]

The regulations state that the proposal must:

Clearly describe how the regional center focuses on a geographical region of the United States and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment;
Provide in verifiable detail how jobs will be created directly or indirectly;
Provide a detailed statement regarding the amounts and sources of capital which have been already committed to the regional center;
Provide a description of the promotional efforts taken and planned by the sponsors of the regional center;
Include a detailed prediction^[3] how the regional center will have a positive impact on the regional or national economy based on factors such as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and
Be supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, or multiplier tables.^[4]

The level of verifiable detail required for a Form I-924 to be approved and provided deference may vary depending on the nature of the application filing.^[5]

A. Regional Center Application Proposals

The regional center proposal must include a management and operational plan to administer, oversee, and manage the proposed regional center, including but not limited to how the regional center:

Will be promoted to attract immigrant investors, including a description of the budget for promotional activities;
Will identify, assess, and evaluate proposed immigrant investor projects and enterprises;
Characterizes the structure of the investment capital it will sponsor; for example, whether the investment capital to be sought for job-creating companies will consist solely of immigrant investor capital or a combination of immigrant investor capital and domestic capital, and how the distribution of the investment capital will be structured (for example, loans to developers or venture capital); and
Will oversee all investment activities affiliated with, through, or under the sponsorship of the proposed regional center.

Geographic Area

An officer reviews the proposed geographic boundaries of a new regional center to determine if they are acceptable. USCIS considers geographic boundaries acceptable if the regional center applicant can establish by a preponderance of the evidence that the proposed economic activity will promote economic growth in the proposed area.^[6] The determination is fact-specific, and the law does not require any particular form of evidence, such as a county-by-county analysis.

In addition, a regional center’s geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones.^[7] To demonstrate that the proposed geographic area is limited, the regional center applicant should submit evidence demonstrating the linkages between proposed economic activities within the proposed area based on different variables. Examples of variables to demonstrate linkages between economic activities can include but are not limited to:

Regional connectivity;
The labor pool and supply chain; and
Interdependence between projects.

Moreover, in assessing the likelihood that the proposed economic activity will promote economic growth in the proposed geographic area, an officer reviews the impact of the activity relative to relevant economic conditions. The size of the proposed area should be limited and consistent with the scope and scale of the proposed economic activity, as the regional center applicant is required to focus on a geographical region of the United States.^[8] The regional center applicant must present an economic analysis of its proposed economic activity in the proposed geographic area that is supported by economically or statistically valid forecasting tools.^[9] The Form I-924 instructions provide further information regarding the requirements of the economic analysis.

B. Types of Regional Center Projects

An actual project refers to a specific project proposal that is supported by a Matter of Ho (PDF) compliant business plan.^[10]

A hypothetical project refers to a project proposal that is not supported by a Matter of Ho (PDF) compliant business plan.

The term exemplar refers to a sample Immigrant Petition by Alien Investor (Form I-526), filed with Form I-924 for an actual project. This type of regional center proposal contains copies of the commercial enterprise’s organizational and transactional documents, which USCIS reviews to determine if they are in compliance with established eligibility requirements.

1. Hypothetical Projects

If the Form I-924 projects are hypothetical projects, general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment. A regional center applicant seeking review of a hypothetical project should clarify in the Form I-924 submission that the project is hypothetical. General proposals and predictions may include a description of the project parameters, such as:

Proposed project activities, industries, locations, and timelines;
A general market analysis of the proposed job creating activities and explanation regarding how the proposed project activities are likely to promote economic growth and create jobs; and
A description, along with supporting evidence, of the regional center principals’ relevant experience and expertise.

While hypothetical project submissions are sufficient for regional center designation, previous determinations based on hypothetical projects will not receive deference. Actual projects will receive a de novo officer review during subsequent filings (for example, through the adjudication of an amended Form I-924 application, including the actual project details or the first Form I-526 immigrant investor petition).

Organizational and transactional supporting documents are not required for a hypothetical project. If a regional center applicant desires a compliance review of organizational and transactional documents, the application must include an actual project with a Matter of Ho (PDF) compliant business plan and an exemplar immigrant investor petition.

2. Actual Projects

Applications for regional center designation based on actual projects may require more details than a hypothetical project to demonstrate that the proposal contains verifiable details and is supported by economically or statistically sound forecasting tools. A regional center applicant seeking review of an actual project should clarify in the Form I-924 submission that the project is actual.

Actual projects require a Matter of Ho (PDF) compliant comprehensive business plan that provides verifiable detail on how jobs will be created. Absent fraud, willful misrepresentation, or a legal deficiency,^[11] USCIS defers to prior determinations based on actual projects when evaluating subsequent filings under the project involving the same material facts and issues.

Organizational and transactional documents for the new commercial enterprise are not required. If a regional center applicant desires review of organizational and transactional documents for program compliance, the regional center application must be accompanied by an exemplar Form I-526 immigrant investor petition.

If regional center applicants opt not to file a Form I-924 amendment, the investor should identify his or her Form I-526 immigrant investor petition as an actual project being presented for the first time. Additionally, the immigrant petition should contain an affirmative statement signed by a regional center principal confirming that the regional center is aware of the specific project being presented for the first time as part of the immigrant investor petition.

In cases where the regional center application is filed based on actual projects that do not contain sufficient verifiable detail, USCIS may approve the projects as hypothetical projects if they contain the requisite general proposals and predictions. The projects approved as hypotheticals, however, do not receive deference in subsequent filings.

In cases where some projects are approvable as actual projects, and others are not approvable or only approvable as hypothetical projects, the approval notice should identify which projects have been approved as actual projects and will be accorded deference. The approval notice should also identify projects that have been approved as hypothetical projects but will not be accorded deference.

3. Exemplar Filings

Regional center applications, based on actual projects, including a Form I-526 immigrant investor exemplar petition, require more details than a hypothetical or actual project submitted without an exemplar. A regional center applicant seeking review of an exemplar should state that the project is an actual project with a Form I-526 exemplar.

Exemplar filings require a Matter of Ho (PDF) compliant comprehensive business plan that provides verifiable detail on how jobs will be created, as well as organizational and transactional documents for the new commercial enterprise.

Absent fraud, willful misrepresentation, or a legal deficiency, officer determinations based on exemplar filings are accorded deference in subsequent filings under the project with the same material facts and issues.

While an amended Form I-924 is not required to perfect a hypothetical project once the actual project details are available, some applicants may choose to file an amended Form I-924 application with a Form I-526 exemplar to obtain a favorable determination. These exemplar filings are accorded deference in subsequent related filings, absent material change, fraud, willful misrepresentation, or a legally deficient determination.

C. Regional Center Annual Reporting

Designated regional centers must file a Supplement to Form I-924 (Form I-924A) annually that demonstrates continued eligibility for designation as a regional center in the EB-5 Program.^[12] The regional center must file the form within 90 days of the end of the fiscal year (between October 1 and December 29). The Form I-924A instructions specifically list required information that must be submitted.^[13]

If the regional center fails to file the required annual report, USCIS issues a Notice of Intent to Terminate (NOIT) to the regional center for failing to provide the required information. This may ultimately result in the termination of the regional center’s designation if the regional center fails to respond or does not file a response which adequately demonstrates continued eligibility.

D. Regional Center Amendments

Because businesses’ strategies constantly evolve, with new opportunities identified and existing plans improved, a regional center may amend a previously approved designation. The Form I-924 instructions provide information regarding the submission of regional center amendment requests.^[14]

To improve processing efficiencies and predictability in subsequent filings, many regional centers may seek to amend the Form I-924 approval to reflect changes in economic analysis and job creation estimates. Such amendments, however, are not required in order for individual investors to proceed with filing the immigrant petitions or petitions to remove conditions on residence based on the additional jobs created, or to be created, in additional industries.

Formal amendments to an approved regional center’s designation are not required when a regional center changes its industries of focus, business plans, or economic methodologies; however, a regional center may find it advantageous to seek USCIS approval of such changes before they are adjudicated in individual immigrant investor petitions.

Requests to Change Geographic Area

When a regional center requests to expand its geographic area, the proposed geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones.^[15]

Any requests for geographic area expansion made on or after February 22, 2017 are adjudicated under the current guidance in the Form I-924 instructions which requires that a Form I-924 amendment must be filed, and approved, to expand the regional center’s geographic area. The Form I-924 amendment must be approved before an I-526 petitioner may demonstrate eligibility at the time of filing his or her petition based on an investment in the expanded area.

If the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or Form I-526 petition filed prior to February 22, 2017, and the request is ultimately approved, USCIS will continue to adjudicate additional Form I-526 petitions associated with investments in that area under prior policy guidance issued on May 30, 2013.^[16] That policy did not require a formal amendment to expand a regional center’s geographic area, and permitted concurrent filing of the Form I-526 prior to approval of the geographic area amendment.

E. Termination of a Regional Center Designation

USCIS issues a NOIT if:

USCIS determines that a regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment; or
The regional center fails to submit required information to USCIS.^[17]

The NOIT will provide the grounds for termination and provide at least 30 days from receipt of the NOIT for the regional center to respond to the allegations in the NOIT. The regional center may offer evidence to contest the allegations in the NOIT. If the regional center overcomes the allegations in the NOIT, USCIS issues a Notice of Reaffirmation that affirms the regional center’s designation.

If the regional center fails to overcome the allegations in the NOIT, USCIS terminates the regional center’s participation in the Regional Center Program. In this case, USCIS notifies the regional center of the termination, the reasons for termination, and the right to file a motion, appeal, or both. The regional center may appeal the decision to USCIS’ Administrative Appeals Office within 30 days after service of notice (33 days, if the notice was mailed).^[18]

Footnotes

[^ 1] For a definition of indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs, Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)].

[^ 2] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. 102-395 (PDF, 83.2 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended.

[^ 3] An applicant can submit a general prediction which addresses the prospective impact of the capital investment projects sponsored by the regional center, regionally or nationally. See Form I-924 instructions.

[^ 4] See 8 CFR 204.6(m)(3).

[^ 5] For more information about the types of regional center projects, see Section B, Types of Regional Center Projects [6 USCIS-PM G.3(B)].

[^ 6] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395 (PDF, 83.2 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i) (requiring a clear description of how the regional center focuses on a geographical region of the United States and how it will promote economic growth).

[^ 7] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395 (PDF, 83.2 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended.

[^ 8] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395 (PDF, 83.2 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i).

[^ 9] See 8 CFR 204.6(m)(3).

[^ 10] See Chapter 2, Eligibility Requirements, Section B, Comprehensive Business Plan [6 USCIS-PM G.2(B)].

[^ 11] Legal deficiency includes objective mistakes of law or fact made as part of the USCIS adjudication.

[^ 12] See 8 CFR 204.6(m)(6).

[^ 13] See Form I-924A instructions.

[^ 14] See Form I-924 instructions.

[^ 15] For a discussion of an officer’s review of a regional center’s proposed geographic area, see Section A, Regional Center Application Proposals [6 USCIS-PM G.3(A)].

[^ 16] See EB-5 Adjudication Policy Memo (PDF, 829.48 KB), PM-602-0083, issued May 30, 2013.

[^ 17] See 8 CFR 204.6(m)(6).

[^ 18] See 8 CFR 103.3. See 8 CFR 204.6(m)(6).

There is no specific form that petitioning employers must use to comply with the notice of filing requirements for Schedule A petitions. The following is a sample notice of filing that petitioners may elect to use in the workplace. USCIS developed this sample for stakeholders’ convenience. It is not intended to be relied upon to create or confer any right(s) or benefit(s), substantive or procedural, enforceable at law by any person or other party in benefit applications before USCIS, in removal proceedings, in litigation with the United States, or in any other form or manner.

Officers should accept notices that are modeled after the sample, but should not require use of the exact sample. Petitioning employers may use other notice formats as long as they comply with the DOL regulations.

Notice of the Filing of the Application for Permanent Employment Certification

This notice is being provided as a result of the filing of an Application for Permanent Employment Certification (ETA Form 9089). The employer intends to permanently employ a foreign national in the job opportunity described below.

Any person may provide documentary evidence bearing on the application to the Certifying Officer of the U.S. Department of Labor. The address of the Certifying Officer is:

_____________________________________________________________________

This Notice of Filing will be posted between 30 and 180 days before filing the permanent labor certification application.

INFORMATION ABOUT THE JOB OPPORTUNITY

EMPLOYER’S NAME: _________________________________________________________

POSITION TITLE: ____________________________________________________________

POSITION DUTIES: __________________________________________________________

___________________________________________________________________________

RATE OF PAY: $________ per ____________

ADDRESS(ES) OF EMPLOYMENT: ______________________________________________

____________________________________________________________________________

EMPLOYER STATES:

There is no bargaining representative for the job opportunity with the employer in the location(s) of intended employment.
This notice was clearly visible and unobstructed while posted. It was posted for at least ten (10) consecutive business days in a conspicuous location in the workplace, where the employer’s U.S. workers could readily read the posted notice, including but not limited to locations in the immediate vicinity of the wage and hour notices.
DATE POSTED: __________________________________
DATE REMOVED: ________________________________
LOCATION(S) WHERE THE NOTICE WAS POSTED: ___________________________________________________________________________________________________________________________

[SIGNATURE] DATE

___________________________ ___________________________

[PRINTED NAME AND TITLE]

___________________________

On November 19, 2019, USCIS provided more clarity on several requirements for special immigrant juvenile (SIJ) classification, including the following:

USCIS reaffirmed and clarified that the petitioner must have been a juvenile under the relevant state law definition of “juvenile” (or equivalent term) when the juvenile court order was issued;^[1]
USCIS clarified the definition of a juvenile court for purposes of SIJ classification and provides examples of the types of evidence that may be provided to establish that a court is acting as a qualifying juvenile court;^[2]
USCIS clarified guidance on what constitutes a qualifying “dependency” or “custody” determination from the juvenile court for the purposes of SIJ classification eligibility;^[3]
USCIS clarified guidance on the statutorily-mandated USCIS consent function;^[4]
USCIS clarified guidance on what qualifies as a similar basis to abuse, neglect, or abandonment under state law;^[5] and
USCIS reaffirmed for officers that the agency no longer requires that the juvenile court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification.^[6]

These updates and clarifications of current USCIS policy guidance are based on USCIS interpretation of the applicable terms in DHS regulations and the Immigration and Nationality Act (INA). An agency is not required to use the Administrative Procedure Act’s (APA) notice-and-comment procedures to issue an interpretive rule or one that amends or repeals an existing interpretive rule,^[7] or when modifying rules of agency organization, procedure, or practice.^[8] However, the instruction to not require evidence that a state court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification was a policy change in response to the resource strain of ongoing litigation. As with all other policy guidance USCIS issues, these updates and clarifications to officers do not add to the substantive regulations, create legally binding rights, obligations, or change the substantive standards by which USCIS will evaluate SIJ petitions. Accordingly, USCIS published no Federal Register notices requesting public comment because public notice is not required for these internal policy changes and clarifications.

Unfair Surprise and Reliance Interest

An agency can change its interpretation of a regulation at different times in its history as long as the interpretative changes create no unfair surprise.^[9] In this case, USCIS is not changing its policy regarding SIJ adjudications. USCIS is updating this guidance to clarify what the law and regulations permit or require because of potential confusion. It has never been USCIS official policy to grant SIJ classification based on a state judge’s order that is sought primarily to permit the noncitizen to obtain lawful immigration status.

USCIS has analyzed the potential for and taken into account serious reliance interests that may be engendered by the practices USCIS officers may have followed prior to this clarification. USCIS acknowledges that a person who may have been approved for SIJ classification before this policy alert may no longer be approved by an officer following this clarifying guidance in rendering their decision. An advocate or representative of an SIJ petitioner, not knowing of this policy, may erroneously petition the state court judge who is handling their client’s case to issue an order with findings of fact in support of the petitioner’s eligibility for SIJ that does not provide relief from parental abuse, neglect, abandonment or a similar basis under state law. However, the statutory and regulatory eligibility criteria have never permitted SIJ classification to be approved using such state court orders, nor has it been official USCIS policy. Therefore, an SIJ petitioner cannot be said to have acted in reliance on the continuation of a practice and policy that has not been a USCIS practice and policy and which is contrary to the law. USCIS must limit the approval of SIJ classification to cases who are eligible based on a valid court order as required by the INA regardless of its effects on parties who may rely on erroneous state court orders.

With respect to the policy change to no longer require evidence that a state court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification, USCIS made that change in response to the strain of litigation. USCIS anticipated that the change would not negatively impact petitioners with potential reliance interests, rather it would reduce their evidentiary burden.

Implementation

USCIS implemented this policy update immediately, as it was merely a clarification. However, USCIS still allowed interested parties an opportunity to comment by providing a 10-day comment period, as is generally provided for Policy Manual publications.

Footnotes

[^ 1] See Chapter 2, Eligibility Requirements, Section A, General [6 USCIS-PM J.2(A)] and Section B, Age-out Protections For Filing with USCIS [6 USCIS-PM J.2(B)].

[^ 2] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order [6 USCIS-PM J.2(C)].

[^ 3] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order, Subsection 1, Dependency or Custody [6 USCIS-PM J.2(C)(1)].

[^ 4] See Chapter 2, Eligibility Requirements, Section D, USCIS Consent [6 USCIS-PM J.2(D)].

[^ 5] See Chapter 3, Documentation and Evidence, Section A, Juvenile Court Order(s) and Administrative Documents, Subsection 1, Qualifying Juvenile Court Determinations [6 USCIS-PM J.3(A)(1)].

[^ 6] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order, Subsection 2, Parental Reunification [6 USCIS-PM J.2(C)(2)].

[^ 7] See Perez v. Mortgage Bankers Assoc., 135 S.Ct. 1199 (2015).

[^ 8] James v. Hurson Associates, Inc. v. Glickman, 229 F.3d 277 (D.C. Cir. 2000)

[^ 9] See Long Island Care at Home Ltd. v. Coke, 551 U.S. 158, 171 (2007). See Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012).

Current as of June 24, 2022

Back

Volume 6 - Immigrants

Resources

Appendices

Footnotes

Footnotes

A. Regional Center Application Proposals

B. Types of Regional Center Projects

1. Hypothetical Projects

2. Actual Projects

3. Exemplar Filings

C. Regional Center Annual Reporting

D. Regional Center Amendments

E. Termination of a Regional Center Designation

Footnotes

Footnotes

Updates

Version History