AAO I-526 appeal denied Dec 08, 2010 merely a landlord
u.s. Department of Homeland Securityidentifying data deleted to U.S. Citizenship and Immigration Services Office of Administrative Appeals MS 2090prevent clearly unwarr~nted Washington, DC 20529-2090invasion of personal pnvac) u.s. Citizenship and Immigration PUBLlCCOPY Services http://www.uscis.gov/err/B7%20-%20Form%20I-526%20and%20I-829/ Decisions_Issued_in_2010/Dec082010_01B7203.pdf CLICK FOR CLEAN COPY OF AAOs POSTED DECISION DEC 0 8 2013 FILE: Office: CALIFORNIA SERVICE CENTER Date: IN RE: 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 in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion. The fee for a Form 1-290B is currently $585, but will increase to $630 on November 23, 2010. Any appeal or motion filed on or after November 23, 2010 must be filed with the $630 fee. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen. Thank you, Perry Rhe Chief, Administrative Appeals Office www.uscis.gov
Page 2DISCUSSION: The Director, California Service Center, denied the preference visa petition, which isnow before the Administrative Appeals Office on appeal. The appeal will be dismissed.The petitioner seeks classification as an alien entrepreneur pursuant to section 203(b)(5) of theImmigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(5). The director determined that thepetitioner had failed to demonstrate a qualifYing investment of lawfully obtained funds or that he hadcreated or would create the necessary employment for qualifYing employees.On appeal, counsel submits a brief and evidence of a reorganization after the date of filing. For thereasons discussed below, while we withdraw some of the directors concerns, other concerns remainvalid.The 21 sl Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273,116 Stat. 1758 (2002), which amends portions of the statutory framework of the EB-5 AlienEntrepreneur program, was signed into law on November 2, 2002. Section 11 036(a)(l )(B) of thislaw eliminates the requirement that the alien personally establish the new commercial enterprise.Section II 036( c) provides that the amendment shall apply to aliens having a pending petition. Asthe petition was filed after November 2, 2002, the petitioner need not demonstrate that he personallyestablished a new commercial enterprise. The issue of whether the petitioner purchased apreexisting business is still relevant, however, as a petitioner must still demonstrate the full amountof the investment was made available for the creation of 10 new jobs.Section 203(b)(5)(A) of the Act, as amended, provides classification to qualified immigrants seeking toenter the United States for the purpose of engaging in a new commercial enterprise: (i) in which such alien has invested (after the date of the enactment of the Immigration Act of 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and (ii) which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrants spouse, sons, or daughters).The record indicates that the petition is based on an investment in a business, _ not located ina targeted employment area for which the required amount of invested has been adjusteddownward. Thus, the required amount of capital in this case is $1,000,000 ?At the outset, we note that the petitioners wife, previously filed a Form 1-526petition claim~ualifying investment in a partially ownedsubsidiary o~ Inc. as of the date of filing. relied on much of sameW"UH!; that the petitioner relies on in the petition before us. In addition, s sister, previously filed a Form 1-526 petition relying on the same investment in• • • • • • • The director initially approved both Forms 1-526. Subsequently, the director
Page 3 revoked the approval of that decision to the AAO, which dismissed the appeal. status to that of a conditional lawful permanent resident, and filed the necessary Form 1-829 petition to remove the conditions on her residence. U.S. Citizenship and Immigration Services (USC IS) has denied that petition. On appeal, counsel asserts that because USCIS revoked the approval of Form 1-526 and denied 1-829, that those funds can now be considered part of the petitioners investment. Nothing in the statute or regulation precludes the petitioner from demonstrating a qualifying investment of joint marital funds. Assuming the petitioner establishes that the marital relationship exists and that the assets are joint property, the petitioner may rely on the investment of those joint assets. Matter of Ho, 22 I&N . 1998). Thus, we will consider any documented investment exclusively by his wife who would be eligible to adjust status as a derivative of the petitioners adj were this ~ approvable. The same rationale, does not apply to the previous investment by sister __ The record does not establish that his wife invested funds from a joint account with the~er. Nor has the petitioner provided any law that would create a presumption that his wifes __ wifes assets are also the joint assets of the petitioner. It does not follow from • • • • iiiiil ineligibility to remove the conditions on her residence that the personal funds wife previously she invested should now be credited to the petitioner. Rather, it is the petitioners burden to demonstrate that he has made a qualifying investment of the required amount through the investment of his personal or joint marital funds. INVESTMENT OF eAPIT AL The regulation at 8 C.F.R. § 204.6(e) states, in pertinent part, that: Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. * * * Invest means to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien entrepreneur and the new commercial enterprise does not constitute a contribution of capital for the purposes of this part. The regulation at 8 C.F.R. § 204.6G) states, in pertinent part, that: (2) To show that the petitioner has invested or is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of
Page 4 generating a return on the capital placed at risk. Evidence of mere intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital. Such evidence may include, but need not be limited to: (i) Bank statement(s) showing amount(s) deposited III United States business account( s) for the enterprise; (ii) Evidence of assets which have been purchased for use in the United States enterprise, including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets, their purchase costs, date of purchase, and purchasing entity; (iii) Evidence of property transferred from abroad for use in the United States enterprise, including United States Customs Service commercial entry documents, bills of lading and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market value of such property; (iv) Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock (voting or nonvoting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holders request; or (v) Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by assets of the petitioner, other than those of the new commercial enterprise, and for which the petitioner is personally and primarily liable.On the Form 1·526, the petitioner claimed to have investect"~n May 13, 1999, the total ofhis investment. The petitioner further indicated that the full investment was represented by stockpurchases.The record contains tax returns, stock certificates and stock ledgers reflecting that, as of the date offiling, DAD!, Inc. owned 100 percent of Grp. Twenty·Nine, Inc. 60 of According to Isupported by sales and rental documents in operatesone restaurant (Fresco I) on premises rented from Twenty·Nineoperates two restaurants (Fresco II and III) on premises rerltedIn his initial brief, prior counsel broke down the petitioners investment as follows:
Page 5 Investment in Fresco I (1999) Investment in Fresco I (real estate) (1999) Investment in Fresco II (2005-2006) Investment in Fresco II and Fresco III (2007)Prior counsel further asserted that even excluding the real estate investment, the petitioner had than the requisite amount.~oner submitted a letter from Merrill Lynch indicating that the petitioners father, _~et up a trust f u n d , _ . , in 1990. The petitioner submitted trust documents namingthe petitioner as a 12.5 percent beneficiary.The petitioner submitted settlement documents for Tiberius Antro Restaurants ofDominics Cucina ltaliana for ~d Di Nitto Properties purchase of in 19~urchase of an existing restaurant raises the possibility thatthe jobs at that location may not be "new." Moreover, the petitioner would need to demonstrate thatsomeone either created, restructured, reorganized or expanded the restaurant at that location as ofNovember 29, 1990. 8 C.F.R. § 204.6(e) (definition of "new"); 8 C.F.R. § 204.6(h).The petitioner also submitted escrow receipts and wire transfers for the following payments fromCharon Ltd.: May 13, 1999 (for purchase of property) May 13, 1999 purchase of restaurant) June 9, 1990 (for purchase of property) September 17, 1999 purchase of restaurant)Significantly, the director noted that also claimed these fimds as part of her investmentand counsel has never challenged that assertion. As discussed below, the record confirms that not allof these funds can be credited to thus, be considered the petitioners maritalfunds. At the time of these transfers in 1999, owned only one-third o f _Properties and only 40 percent of Tiberius Antro Restaurants. Other beneficiaries of the _ their mother, _ owned the remainingpercentages of _ Antro Restaurants. Thus, it would appear thatElmerinda Di Nitto can with 33 percent of the funds Charon, Ltd. transferred topurchase the and 40 percent of the funds Charon, Ltd. transferred to purchasethe restaUlrantIn addition, transferred _ on August 3, 1999 and _ onNovember 18, 1999 to Tiberius Antro Restaurants. Subsequently, Charon, Ltd. transferred • • • •and _ to Tiberius Antro Restaurants on December 19, 1999 and December 20, 1999respectively. Once again, . these funds as her personal investment and therecord does not establish that these funds of
Page 6 daughters and wife, all of whom had an interest in at the time and were _____.or beneficiaries of the Charon, Ltd. trust. Thus, we can only credit 40 percent of these amounts to $156,758. 1 On July I, I transferred her ,h"T" March 20, 2006, Rita Ciano _and on June 30, 2006, all of her shares in both companies to DAD!, of which she and the petitioner each own 50 nercerlt None of these transactions allow us to credit or the with investment in e i t h e r _ Properties or ~;;;~;alm;M are wholly owned subsidiaries of the new commercial enterprise,. According to the ledger for Grp. _ shares of that corporation on December 4, 2005 and on June 30, 2006, she transferred those shares to _ The Grp. Twenty-Nine ledger lists no other shareholders at any time. As stated above, Grp. Twenty- Nine is a wholly owned subsidiary o f _ and was so as of the date of filing. Thus, we will credit the petitioner with the full investment into Grp. Twenty-Nine. In December 2005, the petitioner documented the following transfers from her own Merrill Lynch loan account (secured by another personal (non-commercial) Merrill Lynch account~ petitioners account at Union from which the petitioner paid __ _ _ expenses. The amou~or company expenses transferred another _ to the Grp. Twenty-Nine The amounts in this paragraph that can be credited to the petitioner totalThe petitioner also documented the transfer o f _ o Grp. Twenty-Nine on January 6, 2005 andtransfers ofa total o f _ between February 22, 2006 and December 12,2007. When includingthe - mentioned in the previous paragraph, th~tioner and his wifetransferred to-ises to : O n July 7, 2008, _ _ tr~to I bringing the total transferred t~ and its wholly owned subsidiary t o _ Therecord also contains evidence that _ transferred an additional ~o Grp. Twenty-Nine onJuly 10, 2007, but these funds do not trace back to the petitioner or his wife beyond the amountsdiscussed above. The movement of funds between holding company and subsidiary is not~nce of an additional investment by a shareholder. The petitioner transferred another_ _ an~ to Grp. Twenty-Nine on February 5, 2009, April 11,2009 and May I,2009 respectively, all after the date of filing. Even assuming these funds were committed to beinvested as of the date of filing, and the record does not contain any evidence to support such aconclusion, that would bring the petitioners total investment into _ and its wholly ownedsubsidiary to • • • • • I Elmerinda Di Ninos share in Tiberius Antra Restaurants was only 40 percent at the time of this investment.
of_Page 7In light of the above, the petitioner may be credited with an investment Di Nitto IIIIIIII. to escrow and directly) in Tiberius Antro Restaurants and and its wholly owned subsidiary, Grp. Twenty-Nine. These amounts total Not all of these funds, however, were invested into the newcommercial enterprise,_The regulation at 8 C.F.R. § 204.6(e) provides: Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to, a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust, or other entity which may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and its wholly- owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. This definition shall not include a noncommercial activity such as owning and operating a personal residence.(Bold emphasis added.) Thus, we can only consider DADI, the new commercial enterpriseidentified on the form 1-526 petition, and its wholly owned subsidiaries.As discussed _above not wholly ownedsubsidiaries 0 I as ISnow a wholly owned subsidiary A petitioner, however, must establish eligibility at thetime of filing; a petition cannot be approved at a future date after the petitioner becomes eligibleunder a new set of facts. See 8 C.F.R. § I03.2(b)(l2); Matter of Katigbak, 14 I&N Dec. 45, 49(Reg!. Commr. 1971). Therefore, a petitioner may not make material changes to a petition that hasalready been filed in an effort to make an apparently deficient petition conform to USCISrequirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Commr. 1998). That decision furtherprovides, citing Matter of Bardouille. 18 I&N Dec. 114 (BIA 1981), that we cannot "consider factsthat come into being only subsequent to the tiling of a petition." Id. at 176. As such, the whollyowned nature of would have to support a new petition.Moreover, the full amount of the requisite investment must be made available to the business mostclosely responsible for creating the employment upon which the petition is based. Matter oflzummi,22 I&N Dec. at 179. As have purchased an existing restaurant thathas not created any any investment in that restaurant might not be qualifyingabsent a showing that the restaurant was a troubled business as defined at 8 C.F.R. § 204.6(e); seealso 8 C.F.R. § 204.6(j)(4)(ii).Even if we included - - i n v e s t m e n t in that amount plusthe amount investe~ Twenty-Nine the requisite
Page 8In addition to not being a wholly-owned subsidiary 01_, the investment into_Propertiesis problematic for another reason. As stated above, the full amount of the requisite investment mustbe made available to the business most closely responsible for creating the employment upon whichthe petition is based. Matter of Izummi, 22I&N Dec. at 179. The business responsible for restaurant is located on the property purchased by is paying rent on the location, which it would notneed to do if it owned the property. As such, the investment into _Properties cannot beconsidered part of the petitioners qualifying investment into an employment-creating business.Rather, it appears to be a passive real estate investment.Thus, even including investments made after the date of as had been committedprior to that date and includi~investment in it not being a subsidiary of _ the petitioner has only established a qualifying investment of While the petitioner need only be in the process of investing the necessary$1,000,000, the full amount of the investment must be fully committed as of the date of filing.8 C.F.R. § 204.6(j)(2). The record contains no evidence that the petitioner has, as of the date oftiling, committed the remaining through a contract, promissory note or other legalobligation.In light of the above, while we withdraw the directors concerns that the petitioner was relying onfunds previously claimed unsuccessfully by his wife, we uphold the directors ultimatedetennination that the petitioner has not documented a qualifying investment of personal or maritalfunds in the new commercial enterprise as detined at 8 C.F .R. § 204.6( e) responsible for the creationof new jobs, especially as of the date of filing. PETITIONER IS MERELY A LANDLORD RELYING ON TENANTS PREEXISTINGSOURCE OF FUNDS AND/OR NEW EMPLOYEES!The regulation at 8 C.F.R. § 204.6(j) states, in pertinent part, that: (3) To show that the petitioner has invested, or is actively in the process of investing, capital obtained through lawful means, the petition must be accompanied, as applicable, by: (i) Foreign business registration records; (ii) Corporate, partnership (or any other entity in any fonn which has filed in any country or subdivision thereof any return described in this subpart), and personal tax returns including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind tiled within five years, with any taxing jurisdiction in or outside the United States by or on behalf of the petitioner; 2008 Internal Revenue Service (IRS) Form 1120, schedule L, stock and in additional paid-in-capital but includes 33 percent interestpercent interest in
Page 9 (iii) Evidence identifying any other source(s) of capital; or (iv) Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the petitioner from any court in or outside the United States within the past fifteen years. A petItIOner cannot establish the lawful source of funds merely by submitting bank letters or statements documenting the deposit of funds. Matter of Ho, 22 I&N Dec. 206, 210-211 (Commr. 1998); Maller of Izummi, 22 I&N Dec. at 195. Without documentation of the path of the funds, the petitioner cannot meet his burden of establishing that the funds are his own funds. !d. Simply going on record without supporting documentary evidence is not sufficient for the purpose of meeting the burden of proof in these proceedings. Matter of SotJici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Maller of Treasure Crqft of California, 14 I&N Dec. 190 (Reg1. Commr. 1972». These "hypertechnical" requirements serve a valid government interest: confirming that the funds utilized are not of suspect origin. Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1040 (E.D. Calif. 2001) affd 345 F.3d 683 (9th Cir. 2003) (affirming a finding that a petitioner had failed to establish the lawful source of her funds due to her failure to designate the nature of all of her employment or submit five years of tax returns). The petitioners Form 1-526 petition is supported by the Charon Ltd. trust document. The document as a 12.5 percent ultimate beneficiary. The invested funds trace back to the The petitioner also submitted evidence of sale of his bw;im!ss(!s in Venezuela. As noted by the director, however, the petitioner did not submit relevant exchange rates for the Venezuelan curren~ioner submitted exchange rates for the Euro and the Italian Lire for analysis of ~ tax returns, which reflect only a few thousand dollars in income. Rather than provide the exchange rates noted as lacking, counsel asserts that Merrill Lynch would not have permitted the trust if the funds were not from a lawful source. It is the petitioners burden, however, to document the lawful source of the invested funds, including by providing the necessary exchange rates. Section 291 ofthe Act, 8 V.S.c. § 1361. Nevertheless, we have reviewed the exchange rates for the Venezuelan Bolivar on www.oanda.com (accessed October 15,2010 and incorporated into the record of proceedin~goes back to 1995 for the Venezuelan Bolivar. These exchange rates reflect that _ _ sold shares in his ~for approximately _ in 1993 and sold property for approximately_ and _ in 1985. These amounts cannot explain the large amounts of funds in the trust account.
Page 10In light of the above, while the petitioner has established that his wife is the beneficiary of a largetrust, the record is still absent evidence of how the funds for that trust were accumulated. Thus, thepetitioner has not fully established the lawful source of his funds.EMPLOYMENT CREATIONThe regulation at 8 C.F.R. § 204.6(j)(4)(i) states: To show that a new commercial enterprise will create not fewer than ten (10) full- time positions for qualifying employees, the petition must be accompanied by: (A) Documentation consisting of photocopies of relevant tax records, Form 1-9, or other similar documents for ten (10) qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or (8) A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when such employees will be hired.The regulation at 8 C.F.R. § 204.6(e) states, in pertinent part: Employee means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. In the case of the Immigrant Investor Pilot Program, "employee" also means an individual who provides services or labor in a job which has been created indirectly through investment in the new commercial enterprise. This definition shall not include independent contractors. * * * QualifYing employee means a United States citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or an alien remaining in the United States under suspension of deportation. This definition does not include the alien entrepreneur, the alien entrepreneurs spouse, sons, or daughters, or any nonimmigrant alien.Section 203(b)(5)(D) of the Act, as amended, now provides: Full-Time Employment Defined - In this paragraph, the term full-time employment means employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position.
Page 11Finally, the regulation at 8 C.F.R. § 204.6(g)(2) relates to multiple investors and states, in pertinentpart: The total number of full-time positions created for qualifying employees shall be allocated solely to those alien entrepreneurs who have used the establishment of the new commercial enterprise as the basis of a petition on Form 1-526. No allocation need be made among persons not seeking classification under section 203(b)(5) of the Act or among non-natural persons, either foreign or domestic. The Service shall recognize any reasonable agreement made among the alien entrepreneurs in regard to the identitication and allocation of such qualifying positions.Full-time employment means continuous, permanent employment. See Spencer Enterprises, Inc.,229 F. Supp. 2d at 1039 (finding this construction not to be an abuse of discretion).Orp. Twenty Nine, a wholly owned subsidiary of _ employs well over the ten requisiteemployees. The petitioner submitted the Forms 1-9 for these employees. The director concludedthat the petitioner had failed to submit the supporting documents for these forms. The regulation at8 C.F.R. § 204.6G)(4)(i)(A), however, requires only the submission of Forms 1-9. Thus, while it isthe petitioners burden to demonstrate the creation of jobs for qualifying employees, there is norequirement that the petitioner submit the documents reviewed by the employer when completing theForms 1-9. In fact, the Form 1-9 itself only requires an employer to review and record the necessarydocuments.As there is no other investor in .who is currently seeking benefits under section 203(b)(5) ofthe Act, we need not consider any agreements~ortion the qualifYing employees and thepetitioner may be credited with all employment at_nd its wholly owned subsidiaries.In light of the above, we withdraw the directors concerns regarding job creation.While we withdraw the directors concerns regarding the lawful source of the petitioners funds andjob creation, for the reasons discussed above, we uphold the directors concerns regarding aqualifying investment into and its wholly owned subsidiaries. This decision is withoutprejudice to a future petition supported by evidence of a qualifying investment by the petitioner orhis wife into_ and its wholly owned subsidiaries as of the date of filing of the new petition.The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,8 U.S.C. § 1361. The petitioner has not met that burden.ORDER: The appeal is dismissed.