Immigration Law

News Excerpts from the June 15, 2013, Bender's Immigration Bulletin

  USCIS Finalizes Policy Memo on EB-5 Adjudications

On May 30, 2013, USCIS issued a final policy memorandum on the adjudication of EB-5 petitions and applications.

The policy memo affirms that adjudicators are to use the "preponderance of the evidence" standard when reviewing submissions under the EB-5 program, not the "clear and convincing" or "beyond a reasonable doubt" standards that apply in some civil and in criminal cases. The memo makes clear that even when some doubt exists as to the merits of the submission, the burden of proof is satisfied so long as the evidence submitted leads to the conclusion that the claim is "more likely than not" or "probably" true.

 The memo also states that the "capital" to be invested is not limited to cash or other tangible assets, but also includes an immigrant investor's promise to pay-so long as the investor is liable for the debt and the promissory note is secured by the his or her own assets. However, immigrant investors must show by a preponderance of the evidence that the capital in question was obtained through lawful rather than unlawful means.

 The memo further states that to qualify as an "investment" under the EB-5 program, the capital must be put at risk. If the investor is guaranteed a return on the investment, the capital is not deemed "at risk." Thus, if an investor is owed some portion of capital after becoming a conditional lawful permanent resident, the amount of capital in question is not at risk.

The memo also states that immigrant investors are permitted to diversify their entire EB-5 investments across a range of projects so long as the minimum investment amount is placed in a single commercial enterprise. For investors not associated with a regional center, the memo says that capital may be invested in a portfolio of wholly owned business as long as it is deployed through one commercial enterprise through which all jobs are created.

The full text of the policy memorandum is reprinted at Appendix A.

US-VISIT Is Now the Office of Biometric Identity Management

In March 2013, DHS created the Office of Biometric Identity Management to replace the United States Visitor and Immigration Status Indicator Technology office.

The OBIM will provide biometric identification services to federal, state, and local governments. The OBIM is housed within the DHS National Protection and Programs Directorate, which also oversees the Federal Protective Service, Office of Cybersecurity and Communications, and Office of Infrastructure Protection.

New Phase in Exchanging Border-Crosser Data with Canada

Under the Beyond the Border action plan, by June 30, Canada and the United States will begin extending the exchange of biographic data of third-country nationals and permanent residents of either country to all automated common land-border ports of entry. See a report on Phase I of the exchange (September 2012- January 2013), which involved only four places. The report is at

Bender's Immigration Bulletin

[This is an excerpt from the June 15, 2013, issue of Bender's Immigration Bulletin.]

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