RC-526-ARCFI-remand (AAO JUL232013 01-B7203)

(b)(6)

U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090

U.S. Citizenship and Immigration Services

DATE: JUl 2 3 2013 Office: CALIFORNIA SERVICE CENTER FILE:

INRE: Petitioner:

PETITION: Immigrant Petition by Alien Entrepreneur Pursuant to Section 203(b )(5) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(5)

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.

Thank you,

~~_zc_ Ron Rosenberg tf\-Acting Chief, Administrative Appeals Office

www.uscis.gov

(b)(6)

NON-PRECEDENT DECISION Page 2

DISCUSSION: The Director, California Service Center, denied the employment-based immigrant visa petition and dismissed a subsequently filed motion to reconsider. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the director's decision and remand the petition to the California Service Center for further consideration and action pursuant to a new policy memorandum.

The petitioner seeks classification as an alien entrepreneur pursuant to section 203(b )(5) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(5). The petitioner's claimed investment is through a U.S. Citizenship and Immigration Services (USCIS) designated regional center, Atlantic Regional Center for Foreign Investment, pursuant to section 610 of the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. No. 102-395, 106 Stat. 1828 (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); section 11037 of Pub. L. No. 107-273, 116 Stat. 1758 (2002); section 4 of Pub. L. No. 108-156, 117 Stat. 1944 (2003); and section 1 of Pub. L. No. 112-176, 126 Stat. 1325 (2012). USCIS designated Atlantic Regional Center for Foreign Investment (ARCFI) as a regional center on July 28, 2010.1 The petitioner's investment is through an affiliated limited partnership, located in a targeted employment area for which the required amount of capital invested has been adjusted downward to $500,000.

The director determined that the petitioner failed to establish that his investment in the new commercial enterprise would create at least 10 full-time positions for qualifying employees. Specifically, the director found that at the initial filing of Form I-526, Immigrant Petition by Alien Entrepreneur, ARCFI had not been approved for certain industry categories, and that the petitioner may not amend ARCFI' s designation through the filing of her Form I-526. As such, the director concluded that the creation of indirect jobs in the new industry categories could not be applied to the petitioner's job creation requirement, and that there would not be sufficient positions for all of the proposed immigrant investors in the new commercial enterprise.

On May 30, 2013, USCIS issued a policy memorandum, EB-5 Adjudication Policy (PM-602-0083), regarding the adjudicating of employment-based applications and petitions. Pages 22-23 of the policy memorandum state:

Because businesses strategies constantly evolve, with new opportunities identified and existing plans improved, the instructions to Form I-924 [Application for Regional Center Under the Immigrant Investor Pilot Program] provide that a regional center may amend a previously-approved designation. The Form I-924 provides a list of acceptable amendments, to include changes to organizational structure or administration, capital investment projects (including changes in the economic analysis and underlying business plan used to estimate job creation for previously-approved investment opportunities), and an affiliated commercial enterprise's organizational structure, capital investment instruments or offering memoranda.

1 USCIS approved ARCFI's request to amend its regional center designation on February 8, 2013.

(b)(6)

Page 3 NON-PRECEDENT DECISION

Such formal amendments to the regional center designation, however, are not required when a regional center changes its industries of focus, its geographical boundaries, its business plans, or its economical methodologies. A regional center may elect to pursue an amendment if its seeks certainty in advance that such changes will be permissible to USCIS before they are adjudicated at the I-526 stage, but the regional center is not required to do so. Of course, all regional centers "must provide updated information to demonstrate the center is continuing to promote economic growth, improved regional productivity, job creation, or increased domestic capital investment in the approved geographical area ... an annual basis," 8 C.F.R. § 204.6(m)(6), through the filing of their annual Form I-924A [Supplement to Form I-924].

In light of the newly-issued policy memorandum, this matter will be remanded. As the regional center is no longer required to formally amend its designation to change its industries of focus, the AAO withdraws the basis of the director's decision regarding the indirect job creation. The director must issue a new decision based on the guidance in the policy memorandum. As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.

ORDER: The matter is remanded to the director, California Service Center, for the issuance of a new decision in accordance with the guidance set forth in the policy memorandum. If the new decision is adverse to the petitioner, it shall be certified to the AAO for review.