[Bloggers Note:  This post is authored jointly by Brandon Meyer

Some scandals raise eyebrows; others cause real economic harm.  The one we're about to reveal -- known as "tenant occupancy" -- does both.  It makes the GSA's Las Vegas cavorting pale in comparison. (Immigration lawyer alert:  For those with prurient interests [you know who you are], "tenant occupancy" is not legalese for the recently reported transactions involving the oldest profession as allegedly occurred with the Secret Service at the Hotel Caribe in Cartagena, Columbia.)

Readers of Nation of Immigrators are familiar with the opaque, contradictory, and frequently inane ways in which the Homeland Security Department's immigration-benefits bureau, U.S. Citizenship and Immigration Services (USCIS), has interpreted America's immigration laws. Over many years, USCIS, like the legacy Justice Department agency, the Immigration and Naturalization Service (INS), burnished its well-deserved reputation for flouting the rule of law and frequently changing legal interpretations and procedures, often without prior notice, let alone stakeholder input. As an early blog post, an open letter to the USCIS Ombudsman, noted in May, 2004, the prior “Notice and Comment” procedures set up by the Administrative Procedure Act (“APA”) have typically been honored in the breach and ignored in the observance.

Stakeholders and the public just had to swallow whatever bitter vittles the U.S. immigration bureaucracy served up, even though, when the direction of the dishing is reversed and petitioners seek immigration benefits, the agency has expected immaculate hygiene and punctilious compliance with its recipes, i.e., USCIS's spare, ambiguous and outdated regulations. Under the leadership of Director Alejandro Mayorkas, however, USCIS has shown a commendable spirit of openness and engagement with the public and the stakeholder community.

Still, old habits die hard. The APA requires USCIS to publish proposed regulations after vetting by the Office of Management and Budget (OMB).  Instead, the agency posts proposals on USCIS.gov.  Each mode of public notice allows for stakeholder comment and engagement.  But the tried-and-true APA requires the agency to publish a reasoned analysis of the commentary, whereas the USCIS's web postings only offer revisions of the posted document without detailing the identity of the commenters, the substance of their remarks and reasons why public comments have been incorporated into the revised posting or rejected.

Stakeholders might understand that minor changes could appropriately be offered through web postings seeking public response but that substantive rules involving topics of public significance should instead go through formal APA rulemaking. The public and Congress might also expect that when laws are enacted setting deadlines for the publication of formal regulations, and suspending agency authority to reject immigration petitions until the regulations are finalized, simple web bulletins are wholly inadequate.  

Take for example legislation enacted in 2002 addressing such subjects of wide interest and concern as foreign investment and job creation, topics that remain important in our still frail economy during the months leading up to November's elections.  In particular, we speak of the EB-5 employment-creation investor green card program. Section 11033 of Public Law 107-273, the 21st Century Department of Justice Appropriations Act of 2002, required INS to publish regulations within 120 days of enactment on how a group of long-unresolved investor cases would be decided.

Even cynical observers of immigration bureaucracy might imagine that USCIS would publish final rules by now. As will be seen, the cynics continue to have reasons aplenty to remain jaundiced. In 2011, USCIS finally published proposed regulations interpreting portions of the 2002 law without addressing rules to interpret job-creation calculations. Even the partial proposed rules, however, have not been made final. 

Predictably, the failure of formal rulemaking has produced disastrous results. For several months, many new I-924 Regional Center Designation applications seemed to have disappeared into a black hole. Applicants and their attorneys following up with USCIS were met with either a wall of silence or given the run-around about the reasons for lengthy USCIS inaction on their respective Regional Center applications.

What was going on? USCIS fessed up in a January 2012 EB-5 stakeholders meeting that certain Regional Center designation applications were placed on "hold" at the headquarters level while "issues" remained to be resolved. What precipitated the hold? What were these ominous “issues?” The EB-5 stakeholder community was left to their often vivid imaginations to figure out what was happening.

Another suspenseful month passed before USCIS released a bulletin on February 17, 2012 on “Tenant Occupancy” stating:

The “tenant-occupancy” methodology seeks credit for job creation by independent tenant businesses that lease space in buildings developed with EB-5 funding. USCIS continues to recognize that whether it is economically reasonable to attribute such “tenant-occupancy” jobs to the underlying EB-5 commercial real estate project is a fact-specific question. USCIS is now moving forward with the adjudication of certain pending I-924 Applications For Regional Centers under the Immigrant Investor Pilot Program that are supported by the “tenant-occupancy” economic methodology.

Our newly-hired economists and business analysts will be bringing expertise to these new adjudications, and requests for evidence will be issued to certain applicants and petitioners to address any questions or issues we have about the economic methodologies employed in their specific cases.

For readers unsteeped in immigration patois, the USCIS bulletin foretold an interpretation that new EB-5 jobs are not created when existing employees of a business are merely moved by an employer that changes worksites and reassigns existing workers to newly leased space in a building financed by EB-5 investor funds.  This is presumably the new expertise that USCIS's "newly-hired economists and business analysts" would bring to the analysis of job-counting methodology. 

The 2002 EB-5 legislation, however, already provides the proper analytical framework.  In a Congressional note to Section 11037 (amending 8 U.S.C. § 1153 note): 

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. (Emphasis added.)

Thus, Congress dictated that "general predictions" on "jobs . . . created directly or indirectly as a result of [EB-5] capital investments" should suffice.  So what did USCIS do (besides issuing a puzzling bulletin on job-creation calculations and failing to publish final regulations)?

Lawyers and petitioners who've filed Regional Center applications containing tenant-occupancy calculation methods soon found out.  Their mailboxes were hit with a “blizzard of blue” Requests for Additional Evidence (“RFEs”), symbolic of both the color of RFE cover sheets and the seasonal affective disorders triggered in individuals receiving these cerulean missives this past winter.

Requiring documentary responses almost as thick as Tolstoy’s War and Peace, these RFE’s expressed concern that allowing EB-5 investors to claim job-creation credit for the employees of future building tenants was not based on the ‘reasonable methodologies” required by the regulations (as published before Public Law 107-273 was enacted), and thereby foreclosing the possibility that “verifiable detail” of the subsequent job creation could be provided. In essence, after accepting the tenant-occupancy model for over two decades, USCIS disqualified it without further folderol. 

Although USCIS's RFEs do not “foreclose the possibility that [a Regional Center] might present evidence to demonstrate an economically acceptable nexus between the EB-5 investment and . . . the job creation asserted,” the agency requires evidence showing “excess demand for the specific types of tenants” envisioned in the business plan and economic analysis in order to find the required link between EB-5 investment and job creation.

The agency's RFEs also ask whether prospective tenants (as if the Regional Center operator can predict that far into the future) are “constrained” in their current space or cannot expand their business because of a lack of “specialized business space.” The economic illiteracy of the RFEs is on full display in their requests for evidence of “congestion externalities as demonstrated by a low vacancy-unemployment ratio pursuant to specific space and businesses seeking to expand.” Also, evidence is sought showing “upward wage and rental pressure in specific regional sectors that are likely to be attracted to the proposed project space.”

These categories of evidence presumably advocated by USCIS’s newly hired economists and business analysts show little understanding of basic economic theory and private-sector operations. Excess demand for rental space and upward wage pressures are generally only found in tight job markets, economic booms, or in periods of high inflation. Given that the whole point of the Regional Center program is to encourage job creation in high-unemployment or rural areas, requiring proof of “excess demand” or “upward wage pressures” in these areas as a precondition for construction projects is akin to preventing asthmatics from carrying inhalers until they prove they can function without them.

If fact-based adjudications matter, economists and business analysts should know that the leading reason businesses go through the time, effort, and expense of relocating to a new facility is because employment growth is constrained by current space. Thus, if USCIS’ new tenant-occupancy theories take root, the agency will be responsible for preventing job creation by artificially limiting the number of new construction projects that can be developed using EB-5 capital. (Ironically, by limiting construction projects, USCIS will then be responsible for creating the ‘excess demand’ and ‘upward wage pressures’ that it is now demanding.)

USCIS’ efforts to regulate “excess demand” in the EB-5 program is gross government interference by web fiat. No entrepreneur sets out to develop anything if she believes that there will be insufficient demand for the contemplated project. The tenant-occupancy stratagem is just another example of how USCIS’s constant moving of the goalposts in the EB-5 game does nothing but create unease and uncertainty. Worse yet, the new demands ignore the Obama Administration's own statements acknowledging that counting jobs is not an exact science but instead requires "crude" measures that involve admittedly inexact presumptions.  See, e.g., "Estimates of Job Creation from the American Recovery and Reinvestment Act of 2009," Executive Office of The President Council Of Economic Advisers, May, 2009. 

The opaque and secretive nature of how USCIS came to this decision is anything but a confidence-building measure. How will USCIS handle the indignation that is expected on the tenant-occupancy issue during the May 1, 2012 EB-5 stakeholders meeting? Presumably, the agency will have already reviewed the critical reactions of the American Immigration Lawyers Association (AILA) and the Association to Invest in the USA (IIUSA).

Will USCIS announce its intention to publish a proposed regulation on job-creation calculations (and meantime refrain from denying EB-5 petitions)?  Will the OMB step in to police these USCIS shenanigans? Will the DHS Office of Inspector General investigate USCIS's lawless disregard of its rulemaking duties under Public Law 107-273 (as the GSA's OIG has done of that agency's Vegas escapades)?  Will this USCIS scandal form the plot for The Hangover (Part III)? Apparently, AILA and the IIUSA must hire the GSA's mind reader to find out.

Don't get me wrong, after 30+ years as an immigration lawyer, I remain passionate about immigration and fulfilled in my career, mostly far closer to Emma Lazarus than to Mac. When the day's mail arrives, my heart still goes aflutter as official government envelopes are opened to reveal approval notices  -- proxies for one client's or another's American Dream about to take wing. 

This enjoyable ritual, alas, is increasingly disrupted by jarring correspondence from U.S. Citizenship and Immigration Services (USCIS) -- the dreaded Request for Additional Evidence (RFE). To be sure, a righteous RFE -- and some assuredly are -- is a good thing, offering a second chance to clarify what may have been less than clear in the initial submission. 

A roguish, stupid or intellectually dishonest RFE, however, will cause me to erupt into silent, internal conniptions (I can't actually shout expletives in my law firm because that would likely create a hostile workplace and trigger multiple unpleasantries under state and federal law). Living in California, the land of holistic therapies, I know that anger swallowed often morphs into depression.  To avoid that dreadful fate, I pen this post as a way to release outrage, stay healthy, and light a candle on RFE avoidance and response.

1. Know the law and the non-law. While any immigration lawyer worth her salt understands the legal requirements to establish eligibility for the requested visa benefit, and knows how to muster supporting evidence, the RFE avoidant practitioner must also be familiar with the latest patterns among USCIS adjudicators in asking for legally irrelevant evidence. For example, no matter that the L-1 (intracompany transferee) visa is not one requiring a cash investment in a U.S. entity or a purchase of stock, expect that an adjudicator will request proof of funds transferred from abroad to buy a controlling interest in the petitioning business.  Similarly, although the working owner of a U.S. limited liability company seeking an H-1B (specialty occupation) visa to run the business would almost never appoint a board of directors (since the LLC envisions flexible and speedy management decisions), make sure that your client goes to the expense and burden of appointing a board so that an "employer-employee" relationship of owner to LLC can be proven.  Unfortunately, there is no treatise or hornbook that can help the hapless lawyer find out trends in RFE demands because these documents, though templated, change appearance as readily as chameleons. The only way to discern RFE trends (other than receiving them in bulk) is to network and share notes with other immigration lawyers.
2. Manage client expectations.  RFEs, if unanticipated, often can destroy relationships with existing and new clients.  Good immigration lawyers inform the client of the possibility at the start of each engagement and each matter that USCIS will issue an RFE .  The lawyer's scripted conversation with the client goes like this (with quote in italics): "There is a possibility -- no matter how well we prepare our filing -- that USCIS will ask for more evidence.  You, client, have a business decision to make, and within reason, I will abide by your instructions.  Either, we anticipate every imaginable item of evidence (based on evolving patterns of RFE requests) and adopt a kitchen-sink strategy in submitting our proof, which is the strategy I recommend, or, you can authorize me to request of you and submit to USCIS only the types of evidence reasonably necessary to establish legal eligibility for the immigration benefit you seek.  We may or may not receive an RFE under either strategy.  The government (acting godlike, but without the grace) behaves in mysterious ways.  Your best chance of avoiding an RFE is by presenting as much evidence as possible."  
3. Make it easy for the adjudicator to "Get to Yes." Having gathered all possible evidence, the attorney should provide proofs in a logical and organized way.  The attorney's covering letter (which the officer may or may not read) should be a roadmap to eligibility.  It should refer to an index of clearly-tabbed and logically-organized documents, refer to facts evidenced in the record or attested to by the client, describe in summary form what each item of evidence purports to establish and why each is relevant.  The attorney's letter should also cite the law, regulation, policy memorandum, guidance letter, legislative history, adjudicator's field manual, bar association liaison minutes or other source of legal authority that establishes eligibility under the proven facts.  Here is a simple rule for staying out of legal trouble and RFE hell:  Clients and third parties attest to the facts; lawyers refer to the facts elsewhere established in the submission, describe why each factoid of proof is relevant under law, and demonstrate why "yes" is the legally proper answer.
4. Use word-pictures, graphics, charts and hyperlinks. Boring, sloppy, careless or poorly proofed writing pains and perturbs the reader.  Vivid, logical, grammatically correct, stylish and persuasive writing pleases the reader.  Text alone, however eloquently presented, may fail to make the desired impact.  Eligibility under law is often more readily established if graphical images and links to web-based materials support the messaging of the text-based submission.  The most likely way to enliven interest and avoid an RFE is to awaken an otherwise indifferent adjudicator, and provide compelling overt and subliminal reasons to approve the case.
5. Humanize the case through honest storytelling. Contrary to some immigration lawyers' perceptions, adjudicators are human.  While examiners may be more focused on behaviors that reward them personally such as reporting suspected fraud, way down deep, they may just be moved to identify with the human condition.  If the adjudicator can be encouraged to see your client as a deserving human being, rather than just another file to be acted on before the end of the work day, maybe an RFE will not be sent, but an approval notice instead.  Talk in the submission about the consequences of a "yes" or "no" decision to your client and to the country --whether that client is a company, a person, a family, a university or a religious community.  Even adjudicators prefer to hold up their heads by doing the right and good thing rather than just adding another notch on their life-destroying revolver.
6. Garner a reputation for zealous representation under law.  Pushovers get pushed over. If an adjudicator knows you as a lawyer who will stand up for your client and wield the tools of the law skillfully to achieve a just outcome, there is less of a likelihood that a thoughtless or unjust RFE will come your way.  Don't just give up, if the RFE or a denial is issued.  Press on.

Notwithstanding your scrupulous adherence to the Boy Scout Code (Be Prepared), the postal worker may nonetheless deliver an RFE.  After the inevitable silent cursing is over, the immigration practitioner and clients will pursue a course of action that may exhibit one or more of the following stratagems:

1. Resist the temptation to respond sarcastically. Displays of temper or efforts at ridicule in response to RFEs meet with success as rarely as similar behaviors prevail with TSA officers. 
2. Distinguish boilerplate from customized text. Every RFE contains a mix of both.  Consider the template text carefully (perhaps there's a grain of significance there), but focus on the specially drafted text that will likely reveal how carefully the adjudicator considered the evidence presented in the case.  If the tailored portion of the RFE mischaracterized the factual record or failed to notice key evidence already presented, then plan on diplomatically noting these missteps in the response. 
3. Note whether the RFE contains assertions about legal requirements.  If such claims are unsupported by citation to legal authority and misstate the law, then quote Kazarian v. U.S. Citizenship and Immigration Services, a 9th Circuit case which in essence rebukes USCIS for making stuff up.  If the assertion differs from existing USCIS policy, point out the difference and cite Judulang v. Holder, a unanimous Supreme Court case which declined to follow an immigration agency's position because the agency (in that case, the Board of Immigration Appeals) "has repeatedly vacillated in its method for applying" the law's requirements.
4. Respond fully with fresh evidence.  While re-arguing the significance of evidence originally submitted but treated as insufficient may occasionally succeed, the better approach is to rebut the interim conclusions suggested in the RFE with relevant and responsive evidence.  The evidence may involve proof of company or industry practices, scientific accomplishments or contributions to the economic or other national interests of the United States.  Whatever the issue of concern, take a fresh look at the best way to proffer the rebuttal evidence.  Perhaps it should come from one or more outside experts of unquestioned accomplishment and repute, a forgotten immigration policy memo or guidance letter, the dusty legislative history of a law long ago enacted, the supplemental information in a proposed or final regulation, or a government agency outside the immigration world.  Whatever the source, protect the administrative record with compelling evidence.
5. Enlist government support or generate media scrutiny where appropriate. Sometimes RFEs are so off base that -- in addition to responding fully -- the practitioner may wish to enlist others in government with relevant authority.  Perhaps the USCIS Ombudsman, a Headquarters official or a member of Congress may be interested in learning of and resolving anomalies in service delivery or clearly wayward RFEs. Alternatively, if the client is willing, your resort to media focus (either traditional journalists or others proficient in social media) may be justified.  These unusual approaches may be premature (for an approval notice may yet be forthcoming) or better pursued if a denial is issued. 

Sometimes, the distance between an RFE and an approval notice are as wide as the Grand Canyon.  Thus, immigration stakeholders (in the words of a Washington Post review of the eponymously titled film) should "consider the ever-widening chasms that divide us, [and] the shifting demographic fault lines that have set society quaking like the needle on Richter's scale."  By employing the suggestions in this blog post, however, perhaps the distance will shrink and our clients' American Dreams will yet be fulfilled.