Response to notice of derogatory information
 

Response to notice of derogatory information

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    Response to notice of derogatory information Response to notice of derogatory information Document Transcript

    • Case 8:12-cv-01351-AG-MLG Document 1-5 Filed 08/21/12 Page 24 of 25 Page ID #:151 James Park (CAB: 184695) Hanul Professional Law Corporation 2677 N. Main Street, Suite 1070 Santa Ana, CA 92705 Telephone: (714) 347-0008 Facsimile: (714) 347-0088 Attorney for Petitioner CHUNG, Jaemoon IUNITED STATES DEPARTMENT OF HOMELAND SECURITY UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES ADMINISTRATJVE APPEALS OFFICE WASHINGTON, D.C. In the Matter of: Petition for Immigrant Petition for Alien Entrepreneur Petitioner: CHUNG, Jaemoon Petition: 1-829 Removal of Condition by Alien Entrepreneur File: A58708046 I W AC0824600355 PETITIONERS RESPONSE TO AAOS NOTIFICATION DATED FEB. 17, 2011 ( Exhibit J ) 1
    • Case 8:12-cv-01351-AG-MLG Document 1-5 Filed 08/21/12 Page 25 of 25 Page ID #:152 I. Introduction Petitioner, Mr. CHUNG, Jaemoon ("Petitioner" or "Mr. Chung"), through undersigned counsel, respectfully submits this response to the letter from AAO (attached as Exhibit 2, Notice from AAO dated Feb. 17, 2011). The Petitioner submitted a brief to AAO after receiving Notice of Certification dated December 6, 20 I 0 (see Exhibit 3, Notice of Certification dated December 6, 20 l 0 issued by US CIS). The Petitioner and this office then received the letter from AA 0 (see Exhibit 2) which has provided the Petitioner fifteen (15) days to respond to the issues raised by AAO on the letter. II. Viability of the New Commercial Enterprise The letter by AAO dated February 17, 20llstates, "This office takes note of the complaint you filed on December 18, 2009 against Mr. and Mrs. Winter and Winter Dairy, LP. The complaint alleges tlzat First National Bank foreclosed on Winter Dairy, LPs property. Thus, it does 11ot appear that the new commercial e11terprise is viable." 8 CFR 216.6(c) states: "In adjudicating the petition, the director shall determine whether: (i) A commercial enterprise was established; (ii) The alien invested or was actively in the process of investing the requisite capital; (iii) The alien sustained the actions described in paragraphs (c )(1 )(i) and (c)(l )(ii) of this section throughout the period of the aliens residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment over the two years of conditional residence. (iv) The alien created or can be expected to create within a reasonable period of time ten full-time jobs to qualifying employees." Specifically, 8 CFR 216.6(c )(iii) states, "The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment over the two years of conditional residence." The Petitioner filed his I-526 Petition with USCIS on September 9, 2005. His I-526 Petition was approved on October 27, 2205 and the Petitioner and his family acquired conditional permanent resident status on July 14,2006 (see Exhibit 4, Petitioners and his familys conditional 2
    • Case 8:12-cv-01351-AG-MLG Document 1-6 Filed 08/21/12 Page 1 of 25 Page ID #:153 permanent resident cards issued by USCIS). Therefore, the two years of conditional residence period starts from July 14, 2006 and ends on July 13, 2008. Although Winter Dairy Limited Partnership, the business entity that the Petitioner invested his USD $500,000, was foreclosed by its lender in October 13, 2009, Winter Dairy Limited Partnership was in fact established, and in fact had created the requisite number of direct and indirect jobs and in fact was in operation as "Winter Dairy Limited Partnership" until October of 2009, well beyond July 13, 2008 which was the anniversary of the "two years of conditional residence" period which the regulation requires for the Petitioner to satisfy the "actively in the process of investing the requisite capital." Therefore, in fact, Winter Dairy Limited Partnership, a new commercial enterprise, was viable and operational for the pertinent period oftime and beyond. Additionally, the information and transparent documents related to the jobs of the "Pleasant Dutch Dairy, LP," was solely intended to illustrate the possible extension of interpretation of USCIS policy relating to a "successor-in-interest" for immigration purposes as stated in a Memorandum dated August 6, 2009, (see Exhibit 5 for copy of Memorandum) issued to Field Leadership by USCIS Acting Associate Director for Domestic Operations, Donald Neufeld on the subject "Successor-in-interest Determinations in Adjudication of Form I-140 Petitions; Adjudicators Field Manual (AFM) Update to Chapter 22.2(b)(5)(AD09-37). That policy memorandum/AFM update states under part IV "Field Guidance" that " ... there can be instances where a valid successor relationship exists even though the successor entity has not assumed all of the assets, rights, obligations, and liabilities of the predecessor entity ... " with respect to "successor in interest" for immigration employment based purposes. As EB-5 also is within the general category and context of"Employment Based" relative to an "Employment Creation" EB- 5 immigrant, we merely presented to possibility of extending the current USC IS policy related to successor-in-interest for a petitioning employer for consideration relating to a petitioning immigrant investor in this case, wherein although the "Pleasant Dutch Dairy" may not have acquired all of the assets, rights, obligations, and liabilities of the predecessor entity, Winter Dairy, LP, that this still might be an instance for which a valid successor relationship could possibly be considered to exist. The submitted information and documents relating to the Pleasant Dutch Dairy were simply for illustrative purposes only to point out that a successor dairy to the Winter Dairy, known as the 3
    • Case 8:12-cv-01351-AG-MLG Document 1-6 Filed 08/21/12 Page 2 of 25 Page ID #:154 Pleasant Dutch Dairy, through having acquired all of the Winter Dairys land, buildings, herd of milk cows, equipment, and all its tangible assets essential to continuing in business as an operating and productive dairy farm in its entirety, was continuing in operation and jobs as a different dairy farm operation from having purchased and acquired the means to operate the new Pleasant Dutch Dairy through a foreclosure sale or the Winter Dairy, LP, in which dairy farm operations and employment have been made possible with the new Pleasant Dutch Dairy, which continues to operate to this day, even though the successor Pleasant Dutch Dairys foreclosure purchase of the Winter Dairy did not assume all of the liabilities of the Winter Dairy, LP, in its purchase of the foreclosed Winter Dairys assets in order to operate as the new "Pleasant Dutch Dairy, LLP." No misrepresentation nor fraud was either intended nor submitted, as the Payroll Summary Document reflecting the new "Pleasant Dutch Dairy, LLP" was NOT an alteration of any document, nor a false document, and on which the name "Pleasant Dutch Dairy, LLP" is reflected on the document. Again, provision of information related to the Pleasant Dutch Dairy was only to demonstrate that a new working and operational dairy is continuing on the very same land and facilities, with the herd of dairy cows ftom that of the foreclosed on Winter Dairy, LP. Nowhere in the submission was there any alteration or manipulation nor representation of any documentation which would constitute either fraud nor misrepresentation. III. Fonils W-2 for Mr. and Mrs. Winter The letter by AAO dated February 17, 2011 states, "The Forms W-2 do not appear to he valid. While the Forms W-2 issued to Mr. and Mrs. Winter hear the name of "Winter Dairy, L.P." and EIN 56-2528810, they are visibly different from the 39 Forms W-2 "Winter Dairy" issued in 2007. For example, they contain a different number code under the year, they list the company name as "Winter Dairy L.P. "instead of "WINTER DAIRY" and the employer name and address are single spaced rather than double spaced. Moreover, the petitioner indicated on Box C of the 2007 Form W-3 that it issued only 39 Forms W-2 in the year 2007. The petitioner already provided USCIS with copies of39 Forms W-2/or its claimed employees. The two additional Forms W-2for the Winters are not part of the initial39 Forms W-2. In addition, the wages listed in Box I of the 2007 Form W-3 and on Schedule F of the 4
    • Case 8:12-cv-01351-AG-MLG Document 1-6 Filed 08/21/12 Page 3 of 25 Page ID #:155 petitioners 2007 Form 1065 do not include the wages purportedly paid to Mr. and Mrs. Winter. The IRS instructions to the Form W-3 specific to box "d" indicate that an employer may issue separate Forms W-3 for different "establishment number" in box ~d" that might suggest uwinter Dairy" filed more than one Form W-3 in 2007." The letter continues on to states that "If Winter Dairy, LP paid wages to Mr. and Mrs. Winter as employees rather than partners, those wages, appropriate for inclusion on a Form W-2, should have been included in the total wages listed 011 the Form W-3. As discussed above, the total wages listed on the Form W-3 does not include any wages paid to Mr. and Mrs. Winter. Accordingly, the 2007 Forms W-2 for Ronald and Kimberlie Winter appear to be fraudulent." In order to meet the job creation requirement, Winter Dairy required total of 40 full-time direct- indirect jobs. Using US CIS -approved RIMS II induced job creation multiplier of 2.66 (see Exhibit 6, Copy of the USCIS designation letter designating SDIBI as a Regional Center of the Immigrant Investor Pilot Program and the amendments thereof), the Petitioner was required to create a total offour (4) direct full-time positions (total of 16 full-time 35-hour per week direct jobs for 4 EB-5 investors). The Petitioner provided to USCIS sufficient documents to show that Winter Dairy had created a minimum of sixteen (16) direct full-time jobs and had hired sufficient number of qualifying employees, including Rodney Winter (general manager of Winter Dairy) and Kimberlie Winter (bookkeeper) as salaried employees. AAO in the letter has challenged the Forms W-2 for Rodney and Kimberlie Winter for 2007 which were provided to the Petitioner by Winter Dairys accountant, Kent Boadwine, a very reputable Certified Public Accountant in South Dakota who specializes in agricultural accounting. The AAO is in error in its allegation that the 2007 Forms W-2 for Ronald and Kimberlie Winter appear to be fraudulent. In Exhibit 7, we are submitting the letter prepared by the CPA, Mr. Kent Boadwine, explaining the difference appearance of the Forms W-2 issued by his accounting firm to Mr. and Mrs. Winter and confirming the legitimacy and validity of the Forms W-2 (see Exhibit 7, Letter from Mr. Kent Boadwine, CPA). As Mr. Boadwine, an accounting professional who has expertise in all accounting matters related to the Winter Dairy, LP, states clearly in his letter as follows: 5
    • Case 8:12-cv-01351-AG-MLG Document 1-6 Filed 08/21/12 Page 4 of 25 Page ID #:156 " ... As the CPA for the company, it is clear there is no possible treatment of payments made to Rodney and Kimberlie Winter by Winter Dairy, LP, other than as W-2 employees. The original treatment of their compensation as managers was as a guaranteed payment, which is reflected in the above referenced [AAO letter of February 17, 2011]; however, since payments were made direct from Winter Dairy, LP to the Winters, the proper treatment would have been as W-2 employees. The W-2s were later issued to reflect the proper treatment as employees. The Winters were not partners in the Winter Dairy, LP, only in RKW, LLC, which was the general partner of Winter Dairy LP. The transactions originally referenced were prior to discovery of the improper treatment of the Winters compensation as guaranteed payments. Review of the Winter Dairy Limited Partnership Agreement of the Limited Partnership states the General Partner is RKW, LLC, a South Dakota Limited Liability Company. Article 6.2 of the agreement further states "Compensation to General Partner- In addition to any other allocations of the profits, gains, losses of distributions of cash to be made to the General Partner pursuant hereto, and the reimbursement of expenses, the General Partner shall not be paid any additional compensation or remuneration; however, the individual members of the General Partner shall be compensated as determined by the Partners at the meeting of Partnership for services rendered to the Partnership." This clearly leads to tax treatment of the Winters as individual employees rather than as Guaranteed Payment recipients ... " Mr. Boadwines letter further addresses the AAOs comment related to the mater of"multiple establishment numbers on the W-2s" corrects the AAOs misunderstanding as follows: "The correspondence [February 17, 2011 AAO letter] argues multiple establishment numbers on W-2s. In this instance any number issued regarding establishments is a function of the software not germane to the tax treatment of the W-2. There was only 1 establishment which was the dairy facility in question. The accusation of fraud is extremely serious, especially given the factual background behind the Winters proper employment tax treatment." 6
    • Case 8:12-cv-01351-AG-MLG Document 1-6 Filed 08/21/12 Page 5 of 25 Page ID #:157 The AAOs allegation that the Forms W-2 issued to Rodney Winter and Kimberlie Winter "appear to be fraudulent" is without merit and is in error. IV. Forms 1-9 for Unrelated Entity On the letter dated February 17, 2011, AAO stated, "None of the Forms I-9list the business name in the employer certification. This omission is contrary to the form instructions and related regulations at 8 CFR 274a.2. Nick VandeWeerd signed the Forms 1-9; however, Nick VandeWeerd is not listed on the Winter Dairy organizational chart, Forms W-2, South Dakota quarterly payroll contribution records, or Forms 1-9. You also included payroll records for Pleasant Dutch Dairy, LLP. According to the Annual Report for Pleasant Dutch Dairy, LLP, available at http://apps.sd.gov, the partners of this partnership do not include Mr. or Mrs. Winter, Winter Dairy, LP or RKW Dairy, LLC. Instead, Nick VandeWeerd is listed as one of five partners in Pleasant Dutch Dairy, LLP. Accordingly, you appear to have provided documeitts from an unrelated entity and deliberately misrepresented the Forms I-9 and payroll records from Pleasant Dutch Dairy as evidence of Winter Dairys employment of at least I 6 qualifying employees." All of the information and transparent documents related to the current dairy operation and jobs of the "Pleasant Dutch Dairy, LP," was solely intended for USCIS to consider the possible extension of interpretation of USCIS policv relating to a "successor-in-interest" for immigration purposes as stated in a Memorandum dated August 6, 2009, (see Exhibit 5 for copy of ~v1emorandum) issued to Field Leadersl1ip by USC IS Acting Associate Director for Domestic Operations, Donald Neufeld on the subject "Successor-in-interest Determinations in Adjudication of Form I-140 Petitions; Adjudicators Field Manual (AFM) Update to Chapter 22.2(b)(5)(AD09-37). That policy memorandum/AFM update states under part IV "Field. Guidance" that " ... there can be instances where a valid successor relationship exists even though the successor entity has not assumed all of the assets, rights, obligations, and liabilities of the predecessor entity ... " with respect to "successor in interest" for immigration employment based purposes. As EB-5 also is within the general category and context of "Employment Based" relative to an Employment Creation" EB-5 immigrant, we merely presented to possibility ofextending the current USCIS policy related to successor-in-interest for a petitioning employer for 7
    • Case 8:12-cv-01351-AG-MLG Document 1-6 Filed 08/21/12 Page 6 of 25 Page ID #:158 consideration relating to a petitioning immigrant investor in this case, wherein although the "Pleasant Dutch Dairy" may not have acquired all of the assets, rights, obligations, and liabilities of the predecessor entity, Winter Dairy, LP, that this still might be an instance for which a valid successor relationship could possibly be considered to exist. The submitted infonnation and documents relating to the Pleasant Dutch Dairy were simply for illustrative purposes only to point out that a successor dairy to the Winter Dairy, known as the Pleasant Dutch Dairy, through having acquired all of the Winter Dairys land, buildings, herd of milk cows, equipment, and all its tangible assets essential to continuing in business as an operating and productive dairy farm in its entirety, was continuing in operation and jobs as a different dairy farm operation from having purchased and acquired the means to operate the new Pleasant Dutch Dairy through a foreclosure sale or the Winter Dairy, LP, in which dairy farm operations and employment have been made possible with the new Pleasant Dutch Dairy, which continues to operate to this day, even though the successor Pleasant Dutch Dairys foreclosure purchase of the Winter Dairy did not assume all ofthe liabilities ofthe Winter Dairy, LP, in its purchase ofthe foreclosed Winter Dairys assets in order to operate as the new "Pleasant Dutch Dairy, LLP." No misrepresentation nor fraud was either intended nor submitted, as the Payroll Summary Document reflecting the new "Pleasant Dutch Dairy, LLP" was NOT an alteration of any document, nor a false document, and on which the name "Pleasant Dutch Dairy, LLP" is reflected on the document. Again, provision of information related to the Pleasant Dutch Dairywas only to demonstrate that a new working and operational dairy is continuing on the very sameland and facilities, with the herd of dairy cows from that of the foreclosed on Winter Dairy, LP.Nowhere in the submission was there any alteration or manipulation of any documentation whichwould constitute either fraud or misrepresentation.Please find the letter issued by Pleasant Dutch Dairy, LLP explaining that Pleasant Dutch Dairy,LLP purchased the dairy built and operated by Winter Dairy Limited Partnership in December of2009 from the bank after the bank had foreclosed the dairy (see Exhibit 8, Letter from PleasantDutch Dairy, LLP). In responding to Notice of Intent to Deny dated August 11, 2010 ("ITO"),the Petitioner provided to USCIS Forms I-9, employment eligibility verification and payroll 8
    • Case 8:12-cv-01351-AG-MLG Document 1-6 Filed 08/21/12 Page 7 of 25 Page ID #:159 summary provided by Pleasant Dutch Dairy, LLP because the employees working for the dairy that Winter Dairy Limited Partnership had established and operated were now continuing to work in jobs at and for Pleasant Dutch Dairy, LLP. Although Pleasant Dutch Dairy, LLP and Winter Dairy Limited Partnership are not the same business entity, as noted above, we were seeking possible consideration as a "successor-in-interest" for the new Pleasant Dutch Dairy, LLP, as it owns and operates the exact same dairy that Winter Dairy Limited Partnership had established and operated until October of 2009 when the bank took over the dairy through the foreclosure proceeding. The Petitioner merely provided the current employment documents provided by Pleasant Dutch Dairy, LLP to illustrate that the dairy established and created by Winter Dairy Limited Partnership investors still continues to operate today as the Pleasant Dutch Dairy, LLP, having hired and maintained the pre-existing jobs for qualifying employees from the fmeclosed Winter Dairy, LP, in having sustained and continued to fill the 16 minimum full-time positions which had clearly been created for the Winter Dairy, LP, during the Petitioners pertinent TWO YEAR CONDITINOAL RESIDENCY. The Petitioner did not "deliberately misrepresent the Forms I-9 and payroll records from Pleasant Dutch Dairy." This office regrets any possible error of omission or misunderstanding with respect to making it clearer in response to the ITO relating to employment records from the Pleasant Dutch Dairy, LLP. However, all of the employment documents provided by Pleasant Dutch Dairy, LLP were submitted to USCIS without any alteration or tampering. In addition, the payroll summary documents submitted in response to the ITO (see Exhibit 9, Payroll Summary issued by Pleasant Dutch Dairy, LLP) explicitly identified the employer on their face as representing the "Pleasant Dutch Dairy, LLP." Therefore, there was neither fraud nor misrepresentation when the Petitioner provided the Forms I-9 and payroll records of the dairy established by Winter Dairy Limited Partnership currently 0vned by Pleasant Dutch Dairy but merely as an illustration for possibly considering applying existing USCIS policy with respect to the Pleasant Dutch Dairy is· possibly being considered as a "successor in interest" entity to the foreclosed Winter Dairy, since Pleasant Dutch Dairy, LLP purchased the land, buildings, cows and equipment and tangible assets of the Winter Dairy, LP, all of which are integral and essential of the dairy operation and employment by the Pleasant Dutch Dairy, LLP, although it did not also assume the obligations and liabilities of the predecessor Winter Dairy Limited Partnership, as the Pleasant Dutch Dairy 9
    • Case 8:12-cv-01351-AG-MLG Document 1-6 Filed 08/21/12 Page 8 of 25 Page ID #:160 continues to operate as a dairy farm and employing dairy farm workers, operating its dairy business with Winter Dairy, LPs assets and facilities at the exact same location. V. Conclusion The letter from AAO dated February 17, 2011 states, "the AA 0 concludes that you submitted fraudulent Forms W-2for Ronald and Kimberlie Winter, andjraudulent Forms 1-9 alleged to relate to Winter Dairy, LP but clearly from a separate company." However, the evidence provided in this response clearly and factually supports that the Petitioners submission of Forms W-2 for Rodney Winter and Kimberlie Winter were validly issued by Winter Dairy Limited Partnerships CPA hired by Rodney and Kimberlie Winter and approved by the limited partners of Winter Dairy Limited Partnership. The Forms I-9 provided to USCIS in response to ITD were provided to the Petitioner by Pleasant Dutch Dairy, LLP, the entity that succeeded Winter Dairy Limited Partnership by purchasing the same dairy that was established by Winter Dairy Limited Partnership from the bank after the foreclosure. Winter Dairy Limited Partnership had created minimum of 16 full-time employees and there are still some employees hired by Winter Dairy Limited Partnership currently working at the same dairy, including Rodney Winter and Kimberlie Winter as the payroll summary provided by Pleasant Dutch Dairy, LLP shows (see Exhibit 9, Payroll Summary of Pleasant Dutch Dairy, LLP provided to USCIS in response to lTD). Further, there is no fraud related to provision of relevant, accurate, and bona fide information and documentation for the Pleasant Dutch Dairy, LLP, which we submitted as reflecting a "successor-in-interest" type of relationship to the foreclosed Winter Dairy, LP, in continuing the dairy operations and employment which the petitioners investment into the foreclosed Winter Dairy, LP, provided for. 10
    • Case 8:12-cv-01351-AG-MLG Document 1-6 Filed 08/21/12 Page 9 of 25 Page ID #:161 For all ofthe reasons above, the Petitioners I-829 Petition, therefore, must be approved and AAO must reverse the decision made by USCIS. Finally, in order to fully protect all the rights and interests of the Petitioner, Jaemoon CHUNG, James J. Park, Esq., and the Hanul Professional Law Corporation, it is respectfully requested that USCIS withdraw its incorrect, unfounded, improper and false allegation of fraud against the Petitioner, as documented and supported by the record and this response, including the evidence in support of this response. Mr. Chung and the Hanul Professional Law Corporation are prepared to fully protect its rights by seeking intervention in federal court, if necessary, by and through the representation of the law firm of Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A. Petitioner and the Hanul Professional Law Corporation, therefore, will fully and vigorously litigate and pursue relief of this incorrect, erroneous, and improper allegation by the USCIS AAO if necessary. In addition, to overcome this allegation and denial, the Petitioner, Mr. Chung, also reserves the right to supplement this response, if necessary, by providing additional documentation and/or evidence. Dated:_ March 3, 201 l Respectfully Submitted, James J. Park Attorney for Petitioner 11