KSAs and the math wiz RC dismissal

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Last But Not Least Discussion On Recent AAO Regional Center Dismissals

By Joseph P. Whalen (September 14, 2012) In this third and final installment, I will offer some observations on the AAO non-precedent Regional Center Appeal Dismissal of November 10, 2010. This case offers an opportunity to first discuss economic analysis, misinterpretation of data, and extremely poor math skills by a non-economist who seems to have no sense. As an added bonus we can see some prohibited concepts and language in a Limited Partnership Agreement. Let’s get started, we’re in for a bumpy ride. I’ve said it before and I’ll say again, it scares me to see such clueless people trying to get into EB-5. There is actually someone out there that believed that it is humanly possible for one person to work 167 hours per week. Do the math! 24 hours per day x 7 days per week 168 hours per week - 167 hours per week 1 hour per week of rest (time off) = 60 minutes ÷7 days = 8.571... That means this worker is allowed approximately 8 ½ minutes of rest per day! I am not kidding, someone really put forth the notion that one person could work 167 hours per week and then based all their staffing requirements and job projections for a hypothetical motel on that bizarre premise! “Garbage in, garbage out” was never this easy to illustrate before this decision hit the USCIS website!

“As an example, the analysis examines a proposed 65 room motel project. The size of the projected hotel is 43,968 square feet. Using the same DOE table referenced above, the analysis states:

[T]he mean square feet per worker for lodging is 2,074. This means that the 43,968 square foot motel would support 21.2 direct employees each of whom work an average of 167 hours per week. Rather than one employee working an average of 167 hours per week, it is more realistic to have 4.8 (= 167/35) employees each of whom works 35 hours per week. Thus, the total number of direct employees that would be needed for the motel are 101.8 (= 21.2 x 4.8).”

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The non-economist who came up with these numbers pulled them off a table found on the internet. Remembering that this decision is dated November 10, 2010, and generously assuming that it was prepared over one year prior that would mean that the “data” used as “input” was “found” in early 2009. The kicker is that the table that the misinterpreted numbers were pulled from is dated as of 2003. So, it was over five (perhaps closer to six) years out of date in 2009. Having now seen the level of “quality” that USCIS was deluged with, maybe the EB-5 Stakeholder Community should cut them some slack. Does anyone want to defend this attempt to obtain Regional Center Designation? Is anyone willing to publicly take ownership of the Proposal upon which this particular AAO Decision is based? I didn’t think so! Wait, it gets better, or worse, depending on if you are getting a laugh out of this or not. This math wizard and frightful philosopher misconstrued several different pieces of “data” that were pulled from the table (s)he found on the internet. AAO tried to explain what the table really indicated. Here is merely one small excerpt from AAO on this topic.

The title of the table references hours of operation and the table itself references mean hours per week. Thus, the mean hours per week must refer to the hours of operation rather than the mean number of hours per employee. Given that there are only 168 hours in a week, it cannot be concluded that the table demonstrates that the mean hours per week per employee is 167. Nothing on the table suggests that the square footage per worker represents square footage per worker during a given shift only rather than as a function of total employment.

And now for something completely different, a man with three buttocks! {I am a Monty Python fan and any others out there will hopefully, “Get it”.}

Seriously, let’s now turn to the added bonus of the “terms that raise concern” in the Limited Partnership Agreement. What could possibly be wrong with that?

Beyond the decision of the director, the proposed limited partnership agreement has terms that raise concerns. First, the capital contributions section, 3(b), provides that limited partners may contribute "services." The regulation at 8 C.F.R. § 204.6(e) defines capital as "cash, equipment, inventory, other tangible property, cash equivalents" and certain indebtedness. The regulation at 8 C.F.R. § 204.6(j)(2) does not allow qualifying investor pursuant to section 203(b )(5) of the Act to establish an investment through the contribution of services.

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In addition, the full amount of the requisite investment must be made available to the business most closely responsible for creating the employment upon which the petition is based. Matter of Izummi,22 I&N Dec. 169, 179 (Comm'r. 1998). Section 3(c) of the limited partnership agreement allows any amounts "not required for purposes of its business, including reasonable reserves for contingencies" to be distributed. Section 5(b) provides for the distribution of funds unrelated to profits, which are discussed in section 5(c). These sections, which provide for distributions of funds above and beyond profits, raise concerns that the investors may not be placing the full investment amount at risk.

For those who are still not clear on the basics, I will spell out a couple of key points. The Regional Center exists ONLY within the Pilot Program. The Pilot Program permits Regional Centers to exist for the purpose of

concentrating pooled investments in larger projects. Those pooled investments are meant to include a mix of domestic or other

non-EB-5 funds (even institutional investors) funds, as well as EB-5 alien investors’ funds.

IF, and that is only IF, any “reserves” or “cash on hand” were needed, they should come out of the non-EB-5 investors’ share BECAUSE the non-EB-5 investors are NOT under a legal obligation to make a truly “at risk” investment of a statutorily prescribed minimum amount in exchange for an Immigrant Visa.

ALL jobs created by the WHOLE Project are freely available for allocation to the EB-5 investors alone BECAUSE the non-EB-5 investors don’t need them for purposes of lifting conditions from status; and probably couldn’t care less about them even if they tried.

That’s my two-cents, for now. e-mail me at: [email protected]

identifying data deleted to prevent clearly unwarranted invasion of per~onal privacy

'PUBLIC COpy

FILE:

INRE: Applicant:

U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Office of Administrative Appeals MS 2090 Washington, DC 20529-2090

u.s. Citizenship and Immigration Services

D~V 1 0 2010

PETITION: Proposal for Designation as a Regional Center Pursuant to Section 61 O( c) of the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. No. 103-121, 106 Stat. 1874 (1992).

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office.

If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion. The fee for a Form I-290B is currently $585, but will increase to $630 on November 23, 2010. Any appeal or motion filed on or after November 23, 2010 must be filed with the $630 fee. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen.

Thank you,

~~ ~PerryRhew

Chief, Administrative Appeals Office

www.llscis.gov

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DISCUSSION: The Director, California Service Center, denied the proposal for designation as a regional center. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

The applicant seeks designation as a regional center pursuant to section 61 O( c) of the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. No. 102-395, 106 Stat. 1874 (1992), as amended by section 116 of Pub. L. No. 105-119, 111 Stat. 2440 (1997); section 402 of Pub. L. No. 106-396, 114 Stat. 1637 (2000) and section 11037 of Pub. L. No. 107-273, 116 Stat. 1758 (2002).

The director determined that the applicant had not sufficiently explained the regional center's projected positive impact on the regional or national economy in general. In addition, the director concluded that the applicant had not sufficiently explained what type of jobs would be created or provided the job creation multipliers used for all industries identified. Finally, the director questioned the conclusion that the 21.2 direct jobs would be for jobs requiring 167 hours per week, which could then be multiplied by four shifts.

On appeal, the applicant provides a new economic analysis. For the reasons discussed below, the applicant has not overcome all of the director's concerns. In addition, a review of the proposed limited partnership agreement reveals terms that are problematic.

An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), af!'d, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).

I. Relevant Statute and Regulations

Section 203(b)(5)(A) of the Act, as amended, provides classification to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise:

(i) in which such alien has invested (after the date ofthe enactment ofthe Immigration Act of 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and

(ii) which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters).

Section 610 of the Departments of Commerce, Justice and State, the JUdiciary, and Related Agencies Appropriations Act of 1993 as amended by section 116 of Pub. Law 105-119 (1998), section 402 of Pub. Law 106-396 (2000) and section 11037 of Pub. Law 107-273 (2002), provides:

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(a) Of the visas otherwise available under section 203(b)(S) of the Immigration and Nationality Act (8 U.S.C. 11S3(b)(S)), the Secretary of State, together with the Attorney General, shall set aside visas for a pilot program to implement the provisions of such section. Such pilot program shall involve a regional center in the United States, designated by the Attorney General on the basis of a general proposal, for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. 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. 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 aliens, 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.

* * *

(c) In determining compliance with section 203(b)(S)(A)(iii) of the Immigration and Nationality Act, and notwithstanding the requirements of 8 CFR 204.6, the Attorney General shall permit aliens admitted under the pilot program described in this section to establish reasonable methodologies for determining the number of jobs created by the pilot program, including such jobs which are estimated to have been created indirectly through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

The regulation at 8 C.F.R. § 204.6(m) provides, in pertinent part:

(1) Scope. The Immigrant Investor Pilot Program is established solely pursuant to the provisions of section 610 of the Departments of Commerce, Justice, and State, the JUdiciary, and Related Agencies Appropriation Act, and subject to all conditions and restrictions stipulated in that section. Except as provided herein, aliens seeking to obtain immigration benefits under this paragraph continue to be subject to all conditions and restrictions set forth in section 203(b)(S) of the Act and this section.

The regulation at 8 C.F.R. § 204.6(m)(3) provides:

Requirements for regional centers. Each regional center wishing to participate in the Immigrant Investor Pilot Program shall submit a proposal to the Assistant Commissioner for Adjudications, which:

(i) Clearly describes how the regional center focuses on a geographical region of the United States, and how it will promote economic growth through increased

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export sales, improved regional productivity, job creation, and increased domestic capital investment;

(ii) Provides in verifiable detail how jobs will be created indirectly through increased exports;

(iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center;

(iv) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and

(v) Is 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, and/or multiplier tables.

II. Analysis

Initially, the applicant submitted a business plan indicating that the applicant intended to provide capital investment for government capital projects such as a heritage center and the construction of new campus buildings for Arizona State University. The business plan also indicates that the applicant was in discussions with to identify other investment projects. The business plan refers to an online Building Characteristics Table prepared by the U.S. Department of Energy (DOE) and available at

(accessed on October 27, 2010 and incorporated into the record of proceedings). The applicant's business plan references the number of "35 Hour per Week Employees per 1,000 Square Feet" for the following activities: education, health care, office, public order and safety and service. The numbers under this column are not on the DOE table referenced. Rather, the plan indicates that the number of 35 hour per week workers was calculated by dividing the mean hours of operation per week by 35 and multiplying by the number of workers per 1,000 square feet.

The operating agreement for the applicant indicates that the members organized the limited liability company to develop and sell real estate as well as to "transact any and all lawful business for which limited liability companies may be organized."

The director issued a request for additional evidence that included the following language:

Submit an Economic Analysis and model that shows and describes job creation for each industrial cluster. Clearly identify the industry cluster. Further, for each

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industrial cluster described in the economic analysis, list the actual job creating activities. The analysis must clearly show the inputs to the model, and the calculations used to determine the jobs that will be created. Also, show how the investors' money will be sued to create jobs.

To support the economic analysis, submit either a hypothetical investment plan for each industry project type to show how an investment project will be capitalized and operated in a manner that will create 10 direct and indirect jobs or an actual investment plan for a specific proposed project. For multiple industries a combination of hypothetical and actual plans may be submitted. The plan must clearly identify how the investor funds will flow to the job creating entity and how the jobs will be created.

In response, the applicant submitted an economic analysis prepared by TW+A Research. The analysis reiterates that the applicant "will focus on capital projects for Arizona governmental entities." The analysis adds, however, that the applicant has "identified 14 different commercial businesses," with a particular focus on franchises because of the support provided by franchisors. The commercial areas are subsequently listed as retail, health care, accommodations and restaurants and automotive services. The analysis indicates that the investments will be made through the infusion of capital for public projects and the purchase and management of new commercial businesses. The analysis states that with respect to government projects, the applicant will provide the capital and lease the facilities back to the government and that "each business will be run by either [the applicant] or a professional management firm."

As an example, the analysis examines a proposed 65 room motel project. The size of the projected hotel is 43,968 square feet. Using the same DOE table referenced above, the analysis states:

[T]he mean square feet per worker for lodging is 2,074. This means that the 43,968 square foot motel would support 21.2 direct employees each of whom work an average of 167 hours per week. Rather than one employee working an average of 167 hours per week, it is more realistic to have 4.8 (= 167/35) employees each of whom works 35 hours per week. Thus, the total number of direct employees that would be needed for the motel are 101.8 (= 21.2 x 4.8).

As stated above, we have accessed this chart and incorporated it into the record of proceeding. It includes the following regarding lodging:

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Table B1. Summary Table: Total and Means of Floorspace, Number of Workers, and Hours of Operation for Non-Mall Buildings, 2003

Total Total Mean Floorspace Workers Square Mean

Number of (million inA" Feet per Square Buildings square Buildings Building Feet per Mean

(thousand) feet) (thousand) (thousand) Worker Hours per Week

All Buildings* ................................ 4,645 64,783 72,807 13.9 890 61

Lodging .......................................... 142 5,096 2,457 35.8 2,074 167

The title of the table references hours of operation and the table itself references mean hours per week. Thus, the mean hours per week must refer to the hours of operation rather than the mean number of hours per employee. Given that there are only 168 hours in a week, it cannot be concluded that the table demonstrates that the mean hours per week per employee is 167. Nothing on the table suggests that the square footage per worker represents square footage per worker during a given shift only rather than as a function of total employment.

The director concluded that not adequately explained how it determined that the mean hours per week for a lodging employee is 167. The director also determined that the applicant had not explained the applicant's potential impact on the region. Finally, the director concluded that the applicant had not explained the type of direct jobs that would be created or provided the job creation multipliers based on IMPLAN for each industry identified.

On appeal, the applicant submitted a new assessment from The new assessment lists private industries not previously mentioned including transportatIOn and finance. The new assessment provides additional detail regarding the economic impact of investment in the region. The new assessment includes Table 9, which lists the employment impacts of representative sub­industries. Table 9 lists the NAICS code, IMP LAN code, direct impact number, indirect impact number, induced impact number and total impact number. The total impact number for hotels is 6.8. Table 9 does not explain from where the direct, indirect and induced numbers derive. The applicant did not submit the local IMP LAN multipliers for Arizona. Most significantly, the applicant does not respond to the director's concern about how the previous analysis utilized the mean operating hours as mean employee hours.

The regulation at 8 C.F.R. § 204.6(m)(3)(ii) requires the applicant to provide "verifiable" detail as to how the jobs will be created. Without a sufficient explanation as to why the number of lodging employees can be multiplied based on the unrelated data concerning mean operating hours or the local IMP LAN multipliers, we cannot conclude that the applicant has provided "verifiable" detail.

USCIS is under pressure to accept any projections previously submitted at the regional center stage when adjudicating the Form 1-526 petitions filed by individual alien investors provided that there has

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been no material change and absent fraud. 1 USCIS will not abdicate its authority to verify that the regional center proposals are reasonable.

Addressing these concerns at the regional center stage should increase the likelihood that, absent a material change, the aliens who invest in the project will not only be able to obtain conditional permanent resident status but also demonstrate compliance with the requirements to remove conditions on their status through the success of their investment in the regional center. While we recognize that the applicant cannot guarantee the proposed regional center's success, it is not in the interest of USCIS or the aliens who invest in a regional center or consistent with Congressional intent to improve regional productivity to approve a regional center whose proposal is not demonstrated to be based on a reasonable economic analysis.

Beyond the decision of the director, the proposed limited partnership agreement has terms that raise concerns. First, the capital contributions section, 3(b), provides that limited partners may contribute "services." The regulation at 8 C.F.R. § 204.6(e) defines capital as "cash, equipment, inventory, other tangible property, cash equivalents" and certain indebtedness. The regulation at 8 C.F.R. § 204.6(j)(2) does not allow qualifying investor pursuant to section 203(b )(5) of the Act to establish an investment through the contribution of services.

In addition, the full amount of the requisite investment must be made available to the business most closely responsible for creating the employment upon which the petition is based. Matter of /zummi, 22 I&N Dec. 169, 179 (Comm'r. 1998). Section 3(c) of the limited partnership agreement allows any amounts "not required for purposes of its business, including reasonable reserves for contingencies" to be distributed. Section 5(b) provides for the distribution of funds unrelated to profits, which are discussed in section 5( c). These sections, which provide for distributions of funds above and beyond profits, raise concerns that the investors may not be placing the full investment amount at risk.

For the above stated reasons, considered both in sum and as separate grounds for denial, the petition may not be approved.

ORDER: The appeal is dismissed.

I See the March 28, 2009 Employment Creation Immigrant Visa (EB-5) Program Recommendations prepared by the useIS Office of the into the record of proceeding.

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KSAs for Regional Centers By Joseph P. Whalen (October 6, 2012)

I have recently begun to emphasize some of the finer nuances and more subtle aspects of Regional Center Applications. This latest point has to do with the qualifications of the people and the organizations seeking Regional Center Designation. I urge all I-924 Applicants to take stock in what they have to offer their EB-5 investors and at the same time figure out how to prove to USCIS that they know what they are really getting themselves into by seeking Regional Center Designation. Once you have determined what you have to offer the overall EB-5 Regional Center Program then, by all means, lay it on the table as part of the application package. While USCIS has not come forward and said this in a straightforward manner, these have been underlying considerations all along. Read between the lines in the AAO Regional Center Decisions starting with the first Dismissal of an Appeal in 2008 through the most recent Affirmance of a Termination in July 2012. Ask yourself which “Knowledge, Skills, and Abilities” (KSAs) were insufficient or totally absent among those denied Regional Center Applicants in order to produce such proposals that: lacked focus; were vague; were unsupported by reason; contained gross errors in judgment, logic, and/or ordinary common sense; were loaded with very bizarre assumptions; were based on incorrect statistical data; demonstrated grand failures to check simple facts; were unrealistic; were loaded with discrepancies; lacked credibility; and the list of faults could go on and on for several pages. Now ask yourself what you have to offer that is better. Regional Centers and their EB-5 investors need additional clarifications on the broad concept of “Knowledge, Skills, and Abilities” (KSAs). Any Regional Center Applicant has to make a sufficient showing that demonstrates the required KSAs for the scope of operation requested in the RC proposal in order to pass their “audition” through surviving the rigorous vetting involved in this particular adjudication process. On the flipside, USCIS will have been satisfied that the Applicant has the required KSAs and wherewithal to get the job done. In the course of my intensive study and research into EB-5 laws and history, I found that the closest comparable adjudication to the USCIS Form I-924 performed by the agency is the adjudication of Form I-905. The nature of that adjudication is a helpful guide for certain, general, but very practical concepts. I found it very informative, helpful, and enlightening to compare the Independent Credentialing Organizations For Immigrant Healthcare Workers to EB-5 Regional

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Centers For Immigrant Investors and/or Entrepreneurs. Each entity is seeking authorization, designation, or in the best expression of purpose, “licensure” from USCIS to market specific products and services to aliens in order to facilitate and enable them in their individual quests1 (petitions and applications) for visas.

The I-905, Application for Authorization to Issue Certification for Health Care Workers, has been described by AAO as “seeking licensure to certify”.... “medical positions” and/or “medical professionals”. AAO has made it clear that the applicant for that license needs to “demonstrate that its evaluators are competent to certify the educational credentials of those medical professionals seeking such certifications”. They have gone on to state that “the Form I-905 requests that the applicant "Explain [its] expertise, knowledge, and experience in the health care occupations for which [it seeks] authorization."” Note that this evaluation is context specific. See hyperlink infra. I feel that the I-924, Application For Regional Center Under the Immigrant Investor Pilot Program could be improved by looking to the form I-905 and the AAO Administrative decision posted as Nov092006_01M4212.pdf in which it found that the applicant for approval as an “Independent Credentialing Organization” provided insufficient information as to its knowledge, skills, and abilities (KSAs) required for the tasks involved in the licensure sought. AAO summed up that “[t]he applicant did not otherwise explain its expertise, knowledge, and experience pertinent to health care occupations.” I have suggested to USCIS changing the I-924 instructions as follows. Under the heading: “What is the Purpose of this Form?” item #1 should be expanded upon by adding more precise language as to the required KSAs. As an example, I offered the following as a place to start:

“... A critical component of this request entails demonstrating that the applicant entity possesses the necessary knowledge, skills, and abilities (KSAs) to successfully operate the Regional Center in conformance with its legally mandated purposes. As per 8 CFR § 204.6(m)(6) “...a regional center must provide USCIS with updated information to demonstrate the regional center is continuing to promote economic growth, improved regional productivity, job creation, or increased domestic capital investment in the approved geographic area.” Therefore, the entity must present evidence that it understands its role and has the required expertise to perform

1 This is not a typo. I meant quest and not request. A basic definition of quest is: A long and/or arduous search and/or journey. That describes the EB-5 visa pathway very well!

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its underlying functions. The preceding is in addition to the specific KSAs needed for the facilitation of the specifically desired “kinds of commercial enterprises that will receive capital from aliens” as represented by the chosen NACIS codes, in which it seeks licensure to assist EB-5 investors establish and/or invest.”

USCIS needs to closely examine the role of the Regional Centers and produce practical expectations of the services it needs to provide. Once that is sorted out, USCIS must discern basic KSAs for the Regional Centers to demonstrate and have some baseline suggestions and parameters spelled out. I would caution against being too rigid. By way of an example to avoid, do not copy the “evidence possibilities” embodied in the extraordinary ability or exceptional ability immigrant visa categories. Those were based on narrowly defined statutory definitions. The requirements for Regional Centers are much more loosely defined in the statute and any adjustments to the regulations need to maintain the open-ended qualifications currently depicted.

That said, very broad possibilities for desired KSAs, loosely defined are the way to go with this. Numerous non-committal and wishy-washy possibilities are best. I say this because of the huge number of possibilities available under the NAICS codes. The 2012 NAICS Codes structure encompasses well over two-thousand industry categories. There are too many potential means to satisfy the KSAs for the Regional Center applicants for USCIS to be overly specific. I would stick with making the applicant define its own parameters and showing by comparison to the standards accepted in that industry (or those industries) what is needed for the task(s) at hand. I would not make it as rigid as the Permanent Labor Cert process but that could serve as a basic frame of reference. I’d tell them to “Define your needs and then show us that you have what it takes.”

Perhaps OOH or something similar can help them figure it out. Resumes, educational credentials, job descriptions, one’s curriculum vitae, lists of publications: books, blogs, or articles and things along those various lines should suffice as evidence for individuals. Established entities might have more and different items to offer such as: annual reports, balance sheets, the ubiquitous tax returns and associated IRS “schedules” and/or SEC filings—EDGAR printouts might be available. Many possibilities exist in over two-thousand industry categories as defined in NAICS.

Let’s take a closer look at what the Department of Labor (DOL) asks about in the labor certification form itself and some of the associated information used to complete it.

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USCIS regulations for the I-140 still ask for Form ETA 750, Application for Alien Employment Certification, but after March 28, 2005, the correct form to apply for labor certification is the Form ETA 9089. See 20 C.F.R. § 656.17 (a)(l). Regardless of form numbers or versions, it is the information elicited that I wish to explore and borrow from for Regional Centers. Starting with H. 3 through H.15, we see the need to identify the job and then we see the information that DOL finds pertinent.

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The needed KSAs are determined by various sources. The DOL has devoted a great deal of effort into surveys and study about what is required of many occupations. The Bureau of Labor Statistics (BLS) produces the Occupational Outlook Handbook (OOH). In addition, the DOL Employment and Training Administration (ETA) also has another resource. The Occupational Information Network (O*NET) is a database of occupational requirements and worker attributes. The O*NET system, using a common language and terminology to describe occupational requirements, supersedes the seventy-year-old Dictionary of Occupational Titles with current information that can be accessed online.

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USCIS uses the information that the U.S. EMPLOYER specifies on the ETA 9089, in order to classify the position offered within the appropriate statutory classification as defined in the INA. In the I-140, Immigrant Petition for Alien Worker, it is the alien beneficiary who must demonstrate the KSAs needed to satisfy the position as classified. EB-5 is a very different employment-based classification. Rather than coming to work in the U.S. for a U.S. employer, the EB-5 alien is coming to be an employer or if affiliated with a Regional Center, to facilitate employment creation for U.S. workers through a pooled investment. Those applicants who seek Regional Center Designation then become the individuals who need to demonstrate the required KSAs to run the Regional Center; manage investments; and select appropriate business ventures that are suitable EB-5 compliant investment vehicles. While certain elements among the Regional Center-mandated2 KSAs will be quite similar if not exactly the same across all Regional Centers, other aspects will depend on the scope of the Regional Center as requested in the I-924. For instance, common requirements will be those needed to track the data required for annual reporting to USCIS on the I-924A; due diligence of funds; compliance with other government agencies relating to investments and international monetary transactions: SEC regulations, banking regulations, OFAC regulations such as the SDN List; and anything else that is pertinent to the specific transactions and the “kinds of commercial enterprises that will receive capital from aliens”. I will not address the common KSAs, I feel that USCIS must do that but first USCIS has to clearly define the reporting requirements and revise the I-924A. I will not get into too many specifics about the highly variable KSAs that could be required of the myriad of “kinds of commercial enterprises that will receive capital from aliens” because as previously stated, the NAICS Codes represent far too many possibilities. I will only offer limited examples. Taking for example, a mixed-use project that includes a restaurant, retail space, and a suite of physicians’ offices; what might be helpful KSAs to have among the Regional Center staff and/or consultants that are brought on board as needed? OOH has “occupation groups” defined for many different “kinds of commercial enterprises”. There is a “healthcare” group and I suppose that many folks involved in the plethora of occupations have probably worked in physicians’ offices at some point. So having folks with experiences in such settings might help your Business Plan writer on mundane details about what really goes on in such a work setting. The same should be true for restaurants and a wide variety of retail stores.

2 These KSAs are mandated by reality and practicality rather than by statute or regulation.