BY: CORY A. RICHARDS
On June 12, 2013, the Administrative Appeals Office (“AAO”) overturned an USCIS denial of Chicagoland Foreign Investment Group Regional Center (“CFIG”) amendment for expansion of both CFIG’s geographic area and industry designation. The AAO’s decision comes as a surprise to many in the EB-5 community, as it is rare to see the AAO overturn an USCIS denial.
Below is a brief history of CFIG’s amendment filings with USCIS:
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April 2009: (Amendment #1) |
USCIS approves an amendment to change the industry clusters from abbreviated form to the full RIMS II names; |
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October 2009: (Amendment #2) |
USCIS approves an amendment to expand CFIG’s geographic area and add industry clusters; |
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April 2010: (Amendment #3) |
USCIS approves an amendment to expand GFIG’s geographic area; |
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November 2010: (Amendment #4) |
CFIG requests to expand both its geographic area and industry clusters (this amendment request included a “hypothetical” project, rather than an actual project; |
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July 2011: (Amendment #4) |
USCIS requests additional evidence; CFIG responds; |
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June 2012: (Amendment #4) |
USCIS denies amendment and certifies the matter to the AAO. |
The focus of both the AAO decision and this article is the denial of Amendment #4. According to USCIS, CFIG failed to: (1) clearly describe how they will promote economic growth; (2) provide sufficient details regarding how jobs will be created; (3) provide valid description regarding the impact to the economy using valid financial forecasting tools; and (4) provide detailed statement regarding the funds used for the expansion of the regional center. However, the AAO disagreed with the decision of USCIS and withdrew the USCIS denial.
The theme surrounding the AAO’s five-page decision was…you guessed it…the recent May 30th EB-5 Policy Memorandum (“PM”). Particularly, the AAO highlights two key points in its decision. First, according to the relaxed standard in the PM, a regional center is not required to request a formal amendment when the regional center changes their industry of focus, geographic boundaries, business plans, or economic methodologies.
Second, if a regional center proposal is based on a “hypothetical” project, then both general proposals and 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.
In CFIG’s case, they included a general proposal based on Census Bureau data, and general predictions vis-à-vis both types of commercial enterprises that will receive capital and the number of jobs that will be created based on RIMS II data. As a result, the AAO withdrew USCIS’ concerns and approved CFIG’s Amendment #4.
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