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< Back to current issue of Immigration Daily

It's Hard to Get Someone With Tunnel-Vision to See the Big Picture

by Joseph P. Whalen

Most USCIS adjudicators across-the-board are deeply interested in the minute details within the documentation presented as evidence in support of a petition or application for any benefit under the INA. The adjudicators who work directly with their "customers" (applicants and petitioners) through in-person interaction also hear oral testimony and learn to judge credibility through body language. Those adjudicators who actually interact with customers will thereby have a different perspective than their counterparts who do not share that face-to-face experience.

USCIS Service Center adjudicators are often trained like (and treated like) factory workers on an assembly line. Most are highly specialized in a very limited area concerning one to three particular INA benefit types that they have been specifically and narrowly trained to adjudicate. They even refer to the forms that they specialize in as a "product line". Eventually they may be exposed to additional types of benefit requests or additional "product lines". Historically, their training has usually been nearly 100% drawn from the form-specific implementing regulations. They are obsessed with the regulations, many of which are out of date and have not kept up with statutory amendments or precedents.

Far too often, these overly specialized adjudicators cannot even stay abreast of changes that take place within their own very limited sphere. The intense pressure to meet "production goals" is sometimes too much to bear. Only a select few senior adjudicators are ever "permitted" to engage in independent research and study during working hours. Very few of the others can manage their burgeoning caseloads well enough to work in any research time in the workplace and most simply don't have the time (or inclination) to do it on their own.

Additionally, meaningful discourse on the current state of the law rarely ever takes between Center Adjudicators. Any attempt to do so would usually result in an admonition against engaging in "idle chit-chat or gossip". Some supervisors have actually timed their subordinates on the toilet. Others remain so aloof that they leave their folks virtually completely alone most of the time and merely check their production statistics and time reports remotely. Those are the types that only speak to an adjudicator on their "team" to say something like "Your stats are low, speed things up." Somebody in the Service Center realm created a computer-based system for recording the individual employees' time. That can be and generally is a useful tool. However, the Center employees have to account for their time in minutes! How anal is that?

I have previously written articles directed "to the adjudicators" concerning the need to get to know their customers. It is at least equally important for the customers to get to understand their audience, i.e. the specific types of adjudicators handling their INA benefits cases. I don't really expect the actual aliens seeking visas to try to learn these things. However, their mouthpieces have got to be aware of these practical realities including a multitude of varied and subtly nuanced perspectives and perceptions.

Immigration practitioners who accompany clients to adjustment, naturalization, or marriage fraud interviews etc..., are used to one variety of USCIS adjudicator located at the local filed offices. That is not to say that all adjudicators in a particular setting are the same as each other. They most assuredly are not. The Center adjudicator, however, is in a category quite different from those most frequently encountered because Center adjudicators don't routinely deal with the public or interact with their customers face-to-face. The Service Centers house many more varieties of paper-tigers than the average practitioner will ever get a chance to understand nor ever even encounter.

So, now that you, as the applicant, have an idea of the challenge you face; can you start to understand what you are up against when applying for designation as a Regional Center? An applicant for Regional Center designation has to present a plan with a broad scope and breadth to an adjudicator who has been trained to look at things very narrowly and who has been whipped into an anal frenzy of sorts.

Unfortunately, the preceding issue is not even half the battle. An EB-5 Regional Center Proposal has to strike a balance between general "kinds of commercial enterprises" that will be receiving EB-5 funds, yet there must be a sufficient degree of specificity to satisfy USCIS. One of the few concepts that USCIS has been able to glom on to in this ill-defined adjudication context is the ability to demand "verifiable detail". This single concept is the one that is most comfortable for Center adjudicators. It allows them to be justifiably anal, exacting, and demanding. Three of their favorite states of being. While that at first may seem to be a flippant remark, it is not.

Remember that Center adjudicators are used to living and dying according to their rather narrowly-prescribed parameters that are precisely laid out in their precious implementing regulations. EB-5 Regional Center adjudications do not fit the standard molds. These cases fall far outside the Center adjudicators' comfort zones. The proper approach to the adjudication of a Regional Center Proposal requires the adjudicator to take a "big picture" view coupled with a "flexible approach". The Regional Center application is antithetical to the very core being of the usual Center adjudicator. In other words, it scares the hell out of them.

On the flipside of this equation are all of the would-be Regional Center applicants or sponsors and their cadre of "experts". Who actually applies for Regional Center designation? Who composes the Business Plan, Economic Analysis, and standardized transaction documentation? Very few, if any, actual "entrepreneurs" have ever played any part whatsoever in crafting a Regional Center Proposal. No, instead the applicants are a variety of specialists themselves who are having difficulty venturing outside their own comfort zones. State and local government bureaucrats; immigration lawyers; very limited-scope industrialists; construction companies; bankers; and real estate developers are the usual suspects. They in turn are supported in their efforts by a cadre of "specialists" in: econometrics, SEC regulations, "immigration" law (with the notable void of any prior EB-5 experience in many cases), contract law, OFAC regulations, accounting principles, and a paralegal for drafting documents (most of which will not be EB-5 compliant). Sorely lacking is someone (anyone really) with a suitable mix of: broad vision and scope, sound business sense and judgment, and bright ideas; plus the capability to multitask and coordinate all the other players in this grand production number.

So, it is time to come full circle and attempt to address the issue presented in the title of this essay. On the one hand, it is hard to get the Regional Center applicant to see outside his or her own limited area of expertise in order to build an application package that fulfills the Congressional Intent of EB-5. On the other hand, it is very difficult to get the Center adjudicator to grasp the broad scope that EB-5 Regional Centers are supposed to attempt to pursue within the Pilot Program.


About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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