[HOT] An Open Letter To CSC EB-5 Examiners


To: CSC EB-5 Examiners:

Dear Madams/Sirs,

Because there is currently no medium to discuss the EB-5 policy or adjudication practices of EB-5 filings with CSC examiners (or with anyone at USCIS), we are writing this open letter regarding Senator Grassley's letter. See http://www.eb-5center.com/node/742 regarding Senator Grassley's letter and Director Mayorkas' response.

We are addressing our letter specifically to CSC EB-5 Examiners, rather than to supervisory USCIS officials who, through various ways, set the policies of EB-5 law, because ultimately CSC EB-5 Examiners perform the actual difficult work of reviewing I-526 and I-829 petitions and decide whether the filings have met the "rule of law" referred to in Senator Grassley's letter.

Please note that we strongly support Senator Grassley's belief that CSC examiners should follow the "rule of law" in reviewing and adjudicating EB-5 cases. We believe what Senator Grassley is saying is that in deciding EB-5 cases, the EB-5 law, enunciated by statutory and regulatory provisions, should be followed, and CSC examiners should not be imposing any additional requirements whether influenced by any other factors such as sympathy for petitioners or desire to approve more cases, etc. In other words, if the CSC EB-5 examiner believes that Petition has met, by preponderance of evidence, the statutory and regulatory requirements of the specific EB-5 petition, then the petition should be approved.

We would like to emphasize that the "preponderance of evidence" standard requires that if the CSC EB-5 Examiner believes that the evidences submitted by the Petitioner shows by more than 50% that either the I-526 or I-829 requirements have been met, then such petition should be approved. The "preponderance of evidence" is the "more likely than not" standard, not the "clearly convincing" or "beyond reasonable standard".

Note that we are not requesting that CSC EB-5 Examiners "try" to find ways to approve I-526 and I-829 petitions: All we are asking is that CSC EB-5 Examiners follow the "rule of law" and determine what are the requirements for I-526 or I-829 petition and apply the "preponderance of evidence" standard in determining whether the statutory and/or regulatory requirements have been met. This requires CSC EB-5 Examiners to review and understand the specific statutory and regulatory languages governing both I-526 and I-829 petitions and to ascertain if the specific requirements enunciated in the applicable statutes and regulations have been met -- and also to not add any other requirements not specified in the statutory and regulatory provisions.

In short, what we are respectfully asking is to first review the actual statutory and regulatory EB-5 provisions to determine what the specific requirements are, and then apply only those specific requirements to the petition at hand, without imposing extra, additional requirements not found anywhere in the statutory or regulatory provisions: Namely, has the Petitioner shown, by preponderance of evidence, that he or she met these specific requirements stated in the statutory and regulatory provisions? That is all we are asking.

We believe that any case law cannot change the specific statutory/regulatory requirements unless the "holdings" of these cases specifically and intentionally "alter" or "interpret" the specific requirements enunciated in the EB-5 statutory or regulatory provisions.

In conclusion, we respectfully request that CSC EB-5 Examiners be dispassionate and just follow the EB-5 statutes and regulations, because petitioners and attorneys look to the specific requirements stated in the EB-5 statutes and regulations and try to meet them. If we cannot depend on these clearly stated provisions, then the "rule of law" will become just empty rhetoric.

In short, we just want the "rule of law" applied by the preponderance of evidence standard in an accurate and prompt manner.

Respectfully,