immigrant investor petition aao decisions in 2014 (so far!)
DESCRIPTION
Current as of posting only.TRANSCRIPT
Contact [email protected] (716)604-4233 or (716) 768-6506 Page 1
I-526 -- Immigrant Investor Petition AAO Decisions in 2014
Compiled by Joseph P. Whalen, as of September 15, 2014
I-526 -- Immigrant Investor Petition AAO Decisions in 2014
LINK Holding, Comments, Excerpts
JAN152014_01B7203.pdf
Whatever You DO, Don’t
Do This!
Appeal Dismissed, Revocation Upheld, INA § 204(c) Sham
Marriage Bar Applies.
“In summary, the record contains substantive and probative evidence that the petitioner's previous marriage was entered into for the purpose of evading U.S. immigration laws, specifically
the prior wife's sworn statement. The record does not contain relevant and probative evidence overcoming the prior wife's
statement. Accordingly, the instant petition is not approvable pursuant to section 204(c) of the Act.”
JAN272014_01B7203.pdf
A Real “Cautionary Tale”
Appeal Dismissed, w/Administrative Finding of Willful
Material Misrepresentation.
Petitioner filed two I-526s and an I-140 w/I-485; all have a different story behind them! All conflict with each other.
FEB042014_01B7203.pdf
Why Oh Why….Bother!?!
Post-Appeal MTR Granted, Prior Dismissal Affirmed,
Petition remains Denied w/Administrative Finding of Willful
Material Misrepresentation left intact.
“DISCUSSION: The Director, California Service Center, approved the preference visa petition. Subsequently, after first
issuing a notice of intent to revoke the approval of the petition (NOIR), the director revoked the approval of the Immigrant
Petition by Alien Entrepreneur (Form I-526). On April 17, 2012, the Administrative Appeals Office (AAO) dismissed the petitioner's appeal, finding that he did not meet the eligibility
requirements necessary to qualify for the preference visa petition, and that he willfully misrepresented a material fact.
The matter is now before the AAO on a motion to reopen. The motion will be granted, the previous decision of the AAO will be affirmed and the petition will be denied with a formal finding
of misrepresentation.”
FEB042014_02B7203.pdf
You are seeing double, but
only because it is a repeat of
a foolish situation!
Post-Appeal MTR Granted, Prior Dismissal Affirmed,
Petition remains Denied w/Administrative Finding of Willful
Material Misrepresentation left intact.
Contact [email protected] (716)604-4233 or (716) 768-6506 Page 2
I-526 -- Immigrant Investor Petition AAO Decisions in 2014
LINK Holding, Comments, Excerpts
“DISCUSSION: The Director, California Service Center,
approved the preference visa petition. Subsequently, after first issuing a notice of intent to revoke the approval of the petition (NOIR), the director revoked the approval of the Immigrant
Petition by Alien Entrepreneur (Form I-526). On April17, 2012, the Administrative Appeals Office (AAO) dismissed the petitioner's appeal, finding that he did not meet the eligibility
requirements necessary to qualify for the preference visa petition, and that he willfully misrepresented a material fact.
The matter is now before the AAO on a motion to reopen. The motion will be granted, the previous decision of the AAO will be affirmed and the petition will be denied with a formal finding
of misrepresentation.”
FEB042014_03B7203.pdf
You’ll notice that this third
stooge got a NOID rather
than having to be revoked.
They all lied about these
“joint ventures” out of the
same rented space which
was a heck of a lot smaller
than they claimed. I’ll call
these three:
“The Case(s) of the Reused
Rented Rat-holes!”
Post-Appeal MTR Granted, Prior Dismissal Affirmed,
Petition remains Denied w/Administrative Finding of Willful
Material Misrepresentation left intact.
“DISCUSSION: The Director, California Service Center, denied the petitioner's Immigrant Petition by Alien Entrepreneur
(Form I-526), after first issuing a notice of intent to deny. Subsequently, on April 17, 2012, the Administrative Appeals
Office (AAO) dismissed the petitioner's appeal, finding that she did not meet the eligibility requirements necessary to qualify for the preference visa petition, and that she willfully
misrepresented a material fact. The matter is now before the AAO on a motion to reopen. The motion will be granted, the
previous decision of the AAO will be affirmed and the petition will be denied with a formal finding of misrepresentation.”
FEB102014_01B7203.pdf
At least there was no
finding of material
misrepresentation or prior
marriage fraud this time!
Will the trend continue?
Appeal Dismissed.
“……. According to the initial business plan, the petitioner's investment was intended to fund a food manufacturing plant to
produce dim sum.
The director determined that the petitioner had not established that her invested capital was obtained through lawful means, and that the petitioner's investment in the new commercial
enterprise would create at least 10 new full- time direct positions to qualifying employees. As an additional issue, the petitioner
did not demonstrate that she invested the claimed $500,000 into the new commercial enterprise.”
Contact [email protected] (716)604-4233 or (716) 768-6506 Page 3
I-526 -- Immigrant Investor Petition AAO Decisions in 2014
LINK Holding, Comments, Excerpts
FEB102014_02B7203.pdf
Is anything due deference
or not? If not, why not?
The initial decision needs to
analyze that situation as an
initial matter and IPO needs
to make that assessment in
the first instance in this
case.
Certified Denial Withdrawn, Case Remanded for Further
Action.
Affiliated with SFIRC, a USCIS Designated Regional Center.
“SUMMARY
Based on the reasons stated above, this matter will be remanded.
The IPO must issue a new decision, containing specific findings. The burden of proof in these proceedings rests solely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has not met that burden.
ORDER: The director's decision is withdrawn; however, the
petition is currently not approvable for the reasons discussed above, and therefore the AAO may not approve the petition at this time. Because the petition is not approvable, the petition is
remanded to the IPO for issuance of a new, detailed decision which, if adverse to the petitioner, is to be certified to the AAO
for review.”
MAR072014_01B7203.pdf
Similarly to the above case,
the underlying analysis fails
to address the earlier
documents that supported
earlier approvals for the
initial Regional Center
Designation and an
Amendment.
Another “do over”, if
adverse, to be certified.
Denial Withdrawn on Appeal, Case Remanded for Further
Action.
Affiliated with an unnamed Regional Center planning to lend funds to a project in order to construct and operate a marina and
associated businesses in Florida.
“The AAO will remand the matter back to the chief to consider
whether a recent memorandum requires deference to the economic analyses in the record and, if not, to provide notice to
the petitioner as to why not such that the petitioner can file a meaningful appeal.”
MAR072014_02B7203.pdf
Once a withdrawal has been
accepted, it cannot be taken
back or rescinded except in
the most egregious cases of
coercion or duress (or utter
incompetence) by an Officer
who incorrectly,
DISCUSSION: The Director, California Service Center, denied
the petitioner's Form I-526, Immigrant Petition by Alien Entrepreneur. Subsequently, the Administrative Appeals Office (AAO) dismissed the petitioner's appeal based on his
withdrawal, but the AAO made a separate finding that the petitioner knowingly submitted documents containing false
statements in an effort to mislead USCIS relating to an element material to their eligibility for a benefit sought under the immigration laws of the United States. The matter is now before
Contact [email protected] (716)604-4233 or (716) 768-6506 Page 4
I-526 -- Immigrant Investor Petition AAO Decisions in 2014
LINK Holding, Comments, Excerpts
inappropriately, and most
likely illegally; persuaded
someone to withdraw an
application or petition based
on a flawed premise and/or
their misunderstanding of
the law, and facts of the
case.
the AAO on a motion to reopen and a motion to reconsider. The
motions will be granted, the previous decision of the AAO dismissing the appeal based upon its withdrawal will be affirmed, and the formal finding of misrepresentation will be
withdrawn.
APR232014_01B7203.pdf
Non-RC group of EB-5
investors making many
mistakes, the worst of which
may have been filing the
appeal. Throwing good
money after bad!
Appeal Dismissed.
In my opinion, this case emphasizes the need for professional
help in EB-5 investments. You’ll have to read this one for yourself.
MAY122014_01B7203.pdf
Direct Investment fails to
demonstrate enough
potential job creation.
Appeal Dismissed: “….The NCE manufactures automotive
parts for enhancing automotive performance. ……The chief
determined that the petitioner had not established that he had invested or was actively in the process of investing the required
amount of capital, that he obtained the investment capital through a lawful source and the investment amount is his
personal capital, and that the NCE has created or will create the requisite 10 jobs. ….the petitioner asserts that the amended Form I-526 and other supporting documentation are internally
consistent and demonstrate that the NCE will create at least 10 jobs.”
MAY272014_01B7203.pdf
Assisted living facilities in
Texas. The developer is
trying to act like a Regional
Center without being one.
Appeal Dismissed: Three “Direct Investors” all of whom are
seeking EB-5 visas did not demonstrate sufficient job creation. There were additional problems concerning the source of funds.
MAY272014_02B7203.pdf
The developer is trying to
act like a Regional Center
without being one.
Appeal Dismissed: “…[Unnamed] LLC is the general partner
in 13 limited partnerships, LP through LP. Each of the 13 limited partnerships, including the NCE, plans to build, develop
and operate an assisted living facility in Texas. …”
Contact [email protected] (716)604-4233 or (716) 768-6506 Page 5
I-526 -- Immigrant Investor Petition AAO Decisions in 2014
LINK Holding, Comments, Excerpts
MAY272014_03B7203.pdf
Petitioner overcame AAO’s
previously stated intent to
make formal finding of
material misrepresentation.
Appeal Dismissed: “…According to the business plan, the NCE "is primarily engaged in wholesaling and exporting sea cucumber[ s] to Asia." The petitioner indicated in part 2 of the
petition that the NCE is located in a targeted employment area. Thus, the required amount of equity investment is $500,000.
In his July 11, 2013 decision, the chief denied the petition because the petitioner did not document the lawful source of the
required amount of capital because he did not provide translations that the translator had certified according to the requirements set forth pursuant to the regulation at 8 C.F.R. §
103.2(b )(3), and the petitioner did not establish that his claimed investment has created or will create at least 10 full-time
positions for qualifying positions. On appeal, the petitioner submits a brief and supporting
documents. ….”
“….In addition, while the AAO also expressed an intent to make a finding of material misrepresentation, the petitioner has overcome the bases of that intention. …”
MAY292014_01B7203.pdf
Unsecured loan proceeds do
not equate to “cash”.
Borrowed money needs to
be secured and perfected
just like a promissory note
in order to count as
personal assets used as
capital for EB-5 investment.
Appeal Dismissed
“….The NCE imports and distributes Filipino products
throughout the United States.
The chief determined that the petitioner's contribution of $350,000 was a contribution of indebtedness, rather than cash,
because it resulted from a personal bank loan. The chief then concluded that the petitioner had not demonstrated that the indebtedness was secured by the petitioner's personal assets as
required under 8 C.F.R. § 204.6(e) (definition of capital).”
MAY292014_02B7203.pdf
What a mess!
Appeal Dismissed This one was all over the place as to what the NCE would really
do, the need for 10 full-time employees, the petitioner’s role in the NCE, and multiple issues relating to the funds.
Contact [email protected] (716)604-4233 or (716) 768-6506 Page 6
I-526 -- Immigrant Investor Petition AAO Decisions in 2014
LINK Holding, Comments, Excerpts
MAY302014_01B7203.pdf
The director denied then
affirmed that denial on
Motion. AAO dismissed the
appeal. This Motion came
approximately 6 months
later and was completely
inadequate.
Motion Dismissed [Both as untimely and meritless.]
“Even if the motion was timely filed, the petitioner's motion does not overcome any of the original grounds in the June 18,
2013 decision. That decision explains that the petitioner did not demonstrate the following:
1. That she placed the required amount of capital at risk
for the purpose of generating a return on capital based on a lack of evidence of any undertaking of actual business activity as of the filing date and a failure to explain
sufficient capital expenses required for the business;
2. That the petitioner did not establish that her claimed investment had created or would create at least 10 full-time positions for qualifying employees based on her
abandonment of that issue on appeal; and
3. That the petitioner did not document her lawful source of the required amount of capital based on
inconsistencies between some of the translations and a lack of evidence tracing the complete path of funds.”
JUN242014_01B7203.pdf
IPO denied and then re-
affirmed on motion. This
RC-526 was denied solely
on issues relating to the
individual investor’s money
and not to the “21-room
expansion of a hotel”
Regional Center project.
Please don’t ask the U.S.
government to help you
cheat on your taxes in your
home country!
Appeal Dismissed
“In his November 12, 2013 decision, the chief reaffirmed the
denial of the petition, finding that the petitioner (1) failed to demonstrate she had made or was in the process of making an investment of personal qualifying capital; and (2) failed to
document the lawful source of the required amount of capital. For the reasons discussed below, the petitioner has not
overcome either of the chief’s grounds for denial. Accordingly, the petitioner's appeal will be dismissed.”
The petitioner allegedly got the money from her ex-husband who allegedly got it from sale of a piece of property. The money
was really something of a gift but was presented as “personal loan” which was unsecured. Later, counsel explains that they did it that way to avoid paying properly due gift taxes in
Taiwan.
“On appeal, the petitioner also asserts, "in practical terms, this
[loan] transaction was intended as a gift and would have been documented as a gift except that a 'gift' would have incurred gift
tax under the laws in Taiwan where the transaction took place, and a 'loan' did not." The petitioner has not supported her statement with any evidence in the record. ….”
Contact [email protected] (716)604-4233 or (716) 768-6506 Page 7
I-526 -- Immigrant Investor Petition AAO Decisions in 2014
LINK Holding, Comments, Excerpts
JUL022014_01B7203.pdf
This E-2 Treaty Trader did
not plan ahead in order to
take the necessary steps to
prepare his E-2 business
into an EB-5 business.
Also, it’s merely a used car
lot! Does American need
another one of those?
Appeal Dismissed
“The chief determined that the petitioner had not established that the claimed total amount of investment was from the petitioner's personal capital. In addition, the chief concluded that
the petitioner did not demonstrate that the funds constituting the capital investment are lawfully obtained funds. Finally, the chief
determined that the petitioner did not establish that he had created or would create the requisite 10 jobs.”
Nothing submitted on appeal served to overcome any of the cited grounds for denial.
JUL292014_01B7203.pdf
A Regional Center affiliated
case previously discussed
as “RC-526 Jell-O Shot
Down #1”
This one and the next had
similar issues. They both
had the same “escrow
agreement” problem as
discussed in the case below.
Appeal Dismissed “…. The July 30, 2012 Business Plan, page 4, states that the
NCE would loan up to $2 million from employment creation immigrants to [REDACTED] to fund the development,
Production, sale, and eventual manufacture of alcoholic gelatin shots.
The director determined that the petitioner did not demonstrate the lawful source of her invested funds, and the petitioner did
not establish that her investment in the new commercial enterprise would create at least 10 full-time positions to qualifying employees.”
JUL292014_02B7203.pdf
A Regional Center affiliated
case previously discussed
as “RC-526 Jell-O Shot
Down #2”
Appeal Dismissed
“….the petitioner has not sufficiently documented the source and path of his funds with probative evidence, the petitioner did not establish that he invested capital obtained through lawful
means pursuant to the regulation at 8 C.F.R. § 204.6(j)(3).”
“….the petitioner has not submitted a comprehensive business plan demonstrating that his investment would create at least 10 positions as required pursuant to the regulation at 8 C.F.R. §
204.6(j)(4).”
“Beyond the chief's decision, the petitioner has not demonstrated that he has maintained his investment in the NCE…”
Contact [email protected] (716)604-4233 or (716) 768-6506 Page 8
I-526 -- Immigrant Investor Petition AAO Decisions in 2014
LINK Holding, Comments, Excerpts
“…The escrow agreement states that "[i]n the event the I-526 is
not approved, then the above funds ($540,000) will be returned to the investor by cashier's check within three days of receipt of the denial notice."…”
More than three days passed between denial and appeal filing.
AUG062014_01B7203.pdf
This scam project started
the rest of the EB-5 world
talking about Due
Diligence. I can proudly
point to my 2011 article
stressing this point!
Appeal Dismissed: “Foundry Hotel” within a fraudulent RC based on investment in the overall “A Chicago Convention
Center (ACCC), LLC” deal. The SEC brought charges. The fraudster was shut down; principle investments were frozen at
the request of the SEC and then returned. Most of the “Administrative Fees” were not recovered and returned.
AUG262014_01B7203.pdf
Another case from the same
group of investors whose
initial project fell through
because it was fake from the
start. The investors were
defrauded but apparently it
wasn’t hard to do, as
seemingly none of the
“victims” performed
sufficient (if any) due
diligence on the project.
Appeal Dismissed: Intercontinental Regional Center Trust of
Chicago (IRCTC) was eventually terminated as a Regional Center on September 3, 2013. This action was due to the SEC
fraud case. The main lesson learned from this case would be what you can glean from the discussion on material change
during the pendency of an I-526.
This is up-to-date as of this posting early on the morning of September 15, 2014.