Quality of case preparation and presentation counts for immigrant investors or entrepreneurs
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Quality of Case Preparation and Presentation
Counts for Immigrant Investors or Entrepreneurs
By Joseph P. Whalen (September 24, 2013)
I. Introduction: Following my posting of the AAO 2013 Non
Precedent EB-5 Decision, (most up-to-date version found here), I
was contacted by an individual with some observations and
questions. This article is written in response to that query.
II. Rejection vs. Denial/Dismissal: As a preliminary matter, it
must be clarified that the legal terms “rejection” and “denial” are
a. Rejection means: a filing that is incorrectly submitted as:
i. Untimely Filed: which is simply that, late, beyond the
time afforded by law to file something; or
ii. Improperly Filed: which may mean:
1. Filed by someone Without Standing To File: for
example, this might be an Appeal or Motion filed by
the “beneficiary” of an immigrant petition filed by
someone else, i.e., NOT a self-petitioner; it must be
pointed out that the I-526 is a self-petition which
has appeal rights and the I-829 is a self petition
with NO appeal rights but is RENEWABLE before
an Immigration Judge in Removal Proceedings, the
I-924 is an Application filed by an applicant and
does have appeal rights; or
2. Filed by an Attorney or a BIA Accredited
Representative: who is:
a. Barred, Expelled, or Suspended from the
practice of immigration law or “representing
clients” before DHS and/or EOIR;
b. Fails to file a new Form G-28 in proceedings
before AAO; or
c. Is not properly e-registered, IF the case is filed
with an IJ or before the BIA.
3. Filed at an Incorrect Location; or
4. Filed Without the Filing Fee, or with an Incorrect
Filing Fee; or
5. Filed Without Proper Signature(s).
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b. Denials are usually Decisions based on the Merits of the case as
gleaned from the evidence filed in support of an application or
c. Dismissals are the failures to attain reversal of an Initial Denial,
Appeal Dismissal, or prior Motion Dismissal but may be either
merit based or based on technicalities, which may include:
i. Summary Dismissal for failure to identify any errors of
fact or law in the underlying decision, state any type of
argument, or submit any pertinent evidence; or
ii. Relate to any of the reasons for rejection noted above.
III. Cases before AAO might entail:
a. An Appeal: if an appeal is allowed; in general, it must be
submitted to the USCIS office that rendered the initial decision
within 30 days (or 33 days if the decision was served by mail);
[or to appeal a revocation, the appeal must be submitted within
15 days (or 18 days is served by mail)]; or
b. A regular Motion to Reopen: which must state the new facts to
be provided in the reopened proceeding and be supported by
affidavits or other documentary evidence.
c. A Motion to Reopen an application or petition denied due to
abandonment: must be filed with evidence that the
decision was in error because:
i. The requested evidence was not material to the issue of
ii. The required initial evidence was submitted with the
application or petition, or the request for initial evidence
or additional information or appearance was complied
with during the allotted period; or
iii. The request for additional information or appearance was
sent to an address other than that on the application,
petition, or notice of representation, or that the applicant
or petitioner advised the Service, in writing, of a change of
address or change of representation subsequent to filing
and before the Service's request was sent, and the request
did not go to the new address. [These are the bases noted
on USCIS Form M-188 as drawn from USCIS controlling
d. A Motion to Reconsider: which must state the reasons for
reconsideration and be supported by appropriate and
valid legal arguments and/or citation to any pertinent
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precedent decisions, statutes, or regulations to establish that
the decision was based on an incorrect application of law or
USCIS policy. A motion to reconsider a decision on an
application or petition must, when filed, also establish that the
decision was incorrect based on the evidence of record at the
time of the initial decision;
e. A Combined Motion: which entails arguments and new facts,
must meet requirements for BOTH types of Motions.
IV. Case Preparation: As an initial matter at this stage, the
petitioner or their Cousel must isolate the actual facts that must be
proven for the particular benefit being sought in that application
or petition. As this article was inspired by comments pertaining to
AAO Decisions concerning USCIS Form I-526, Immigrant Petition
by Alien Entrepreneur, it will be used as the primary example.
Begin at the beginning and identify the pertinent form and
thoroughly read the:
a. Form Instructions;
b. Implementing Regulations; and
c. Controlling Statute; then
d. Determine the Facts to be Proven; then
e. Determine what evidence:
i. MUST be submitted, and that wich
ii. MAY be submitted in order to support a particular
V. Case Presentation: This function involves the attempt to make a
practical application of the requirements researched and the
information gathered during case prepartion. This is the
petitioners chance to to influence the adjudicator’s thought process
when (s)he is attempting to addresss mixed questions of fact and
law and thereby render a sound judgement.
a. The preponderance of the evidence standard of proof is in
essence an adjudicator’s exercise of their judgement and we
need to assist him or her in rendering the desired sound
judgement in the petitioner’s favor.
b. Case Preparation as a hands-on experience involves the proper:
iii. assembly, and
v. of evidence.
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After having read through various AAO Decisions and the painstaking
dissection and discussion of the evidence offered in various unsuccessful I-
526 visa petitions, The curious reader mentioned above sent an e-mnail to
me. That e-mail contained, in pertinent part, the following observations
Have you considered writing an article about how bad lawyering leads to
In the list of AAO decisions you posted several involved I-526 rejections.
After reading the AAO decisions it appears that all of the I-526 petitions
were massively defective and could never have met the I-526 burdens.
Why are there unsigned tax returned submitted as evidence ?
Why do petitioners submit post submission dated material that should be
pre-pretition dated ?
Why can't petitioners and their lawyers submit real, Ho compliant business
Why do lawyers think that making representations to the USCIS on paper
is a an appropriate substitute for the proper documentation ?
Why is actual ownership of the NCE so muddled and not properly
Why are employment records submitted where I-9 , W-2 , 940 , and
payroll data do not tell the same story ?
That commentor (the holder of a J.D., himself) wondered if my writing an
article on this topic would be akin to “biting the hand that feeds me”. To
that I emphatically say “NO”. I feel that I have been able to present a
carefully crafted article that points out common procedures that should be
followed in case preparation and presentation. I further offer my services to
those in need of training, tutoring, or mentoring on such procedural
matters not taught in law school. I have reasonable rates. Call or e-mail!
That’s my two-cents, for now.
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