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A series of joint frauds is no way to obtain an EB-5 Visa

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Oh way a tangled web we weave when first we practice to deceive. Plus when you do it in an official immigration filing, you may be presented with a finding of material misrepresentation and that means you are screwed and you did it to yourself! Don't follow the course of action discussed in the cases presented herein!

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A series of joint frauds is no way to obtain an EB-5 Visa

  1. 1. joseph.whalen774@gmail.com (716) 604-4233 or (716)768-6506 Page 1 A Series of Joint Frauds is No Way to Obtain an EB-5 Visa Compiled by Joseph P. Whalen (November 27, 2014) LINK EXCERPTS, COMMENTS, AND/OR HOLDING NOV062014_01B7203.pdf When tracing the case backwards through to earlier decisions, I eventually hit a point of confusion as to exactly which one was being appealed herein.  There were five (5) April 17, 2012, AAO Non-Precedents posted that were nearly identical.  There were only three (3) nearly identical AAO Non- Precedents posted on February 4, 2012.  It appears to have been a group of fraudsters working together but only one fought it this far as there is but one (1) AAO decision dated November 6, 2014, posted to date.  These were part of an alleged a series of “joint ventures” but they were later detected to be a pack of “lies” instead. “DISCUSSION: The Director, California Service Center, denied the petitioner's Immigrant Petition by Alien Entrepreneur (Form I-526) and the petitioner appealed that decision to this office, the Administrative Appeals Office (AAO). On April 17, 2012, we dismissed the petitioner's appeal, finding that she did not establish her eligibility for the petition, and that she willfully misrepresented a material fact. On February 4, 2014, we granted the petitioner's motion to reopen, affirmed our denial of the petition and affirmed our finding of material misrepresentation. The petitioner now files a second motion, a motion to reopen and reconsider. Our February 4, 2014 decision will be affirmed, the petition will remain denied with a finding of material misrepresentation. I. FACTUAL AND PROCEDURAL HISTORY The petitioner filed a Form I-526 petition based on an investment in …… a joint venture between the petitioner and [____]. After issuing a notice of intent to deny (NOID) and a September 9, 2010 site visit, the director denied the petition, finding that the petitioner had not demonstrated eligibility for the requested benefit. In addition, the director entered a "finding of fraud" based on the petitioner's submission of a false sublease between [___] and the [___]. In that lease, [___] purported to be the tenant of certain leased premises totaling 11,044 square feet of office space and sublet an undisclosed portion of those premises to the [___].1 The director also concluded that the petitioner had misrepresented that the [___] had employed individuals, who were in fact employees of [___] and noted that the Forms I-9, Employment Eligibility Verifications, for the appeared to have been altered.
  2. 2. joseph.whalen774@gmail.com (716) 604-4233 or (716)768-6506 Page 2 LINK EXCERPTS, COMMENTS, AND/OR HOLDING On April 17, 2012, we dismissed the petitioner's appeal, finding that she did not establish her eligibility for the petition and that she had sought to procure a benefit provided under the Immigration and Nationality Act (the Act) through the willful misrepresentation of a material fact. While the finding of misrepresentation was limited to the submission of a sublease that contained demonstrably false information, we noted numerous other inconsistencies in the record pertaining to company names, the petitioner's risk, and the [___] finances, customers, business plan and employees. On February 4, 2014, we granted the petitioner's motion to reopen, and affirmed our April17, 2012 decision. Specifically, we concluded that: (1) the evidence submitted on motion did not overcome our finding that the petitioner made material misrepresentation through her submission of a December 1, 2009 sublease that contains false information; (2) the relevant evidence submitted on motion predated our April 17, 2012 decision and did not overcome our finding of material misrepresentation; (3) the evidence submitted on motion was inconsistent with evidence already in the record as relating to the new location of the [___]; and (4) the evidence submitted on motion did not establish the petitioner had acted in good faith or that the [___] was in operation. We noted that the discrepancies in the documents pertaining to the [___’s] current location could not resolve a finding of misrepresentation based on the prior submission of a false sublease. _________________________ 1 While we have previously noted the petitioner's failure to submit Exhibit A to the sublease that purportedly describes the portion involved in the sublease, the petitioner did not provide that exhibit in response to our July 22, 2011 notice of intent to dismiss or with the first motion and does not do so with the current motion.” [Slight reformatting herein.]
  3. 3. joseph.whalen774@gmail.com (716) 604-4233 or (716)768-6506 Page 3 LINK EXCERPTS, COMMENTS, AND/OR HOLDING FEB042014_01B7203.pdf FEB042014_02B7203.pdf FEB042014_03B7203.pdf 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. Apr172012_01B7203.pdf Apr172012_03B7203.pdf Apr172012_06B7203.pdf Apr172012_07B7203.pdf Apr172012_09B7203.pdf It seems that some of these were initially approved and then revoked while some were caught in time to treat differently. Some were given Notices of Intent to Deny rather than being first approved and then revoked. ************* It all boils down to fake subleases in a larger leased space. This was show following a site visit. In addition, there were other fake items submitted in the form of altered Forms I-9, Employment Eligibility Verification. “The AAO will dismiss the appeal on multiple grounds. First, the AAO agrees with the director's conclusion that the petition was not filed within a regional center…. Second, the AAO finds that the petitioner failed to demonstrate that the investment is at risk or that each joint venture will create the requisite 10 jobs. Third, the AAO finds that the petitioner did not establish that he has invested in a targeted employment area and, thus, must establish that he has invested or is actively in the process of investing $1,000,000 rather than the reduced amount of $500,000. Finally, the AAO finds that the petitioner has sought to procure a benefit provided under the Act through the willful misrepresentation of a material fact.”
  4. 4. joseph.whalen774@gmail.com (716) 604-4233 or (716)768-6506 Page 4 ABOUT THE AUTHOR I tell you what you NEED to hear, not what you WANT to hear! Joseph P. Whalen Independent EB-5 Consultant, EB-5 Advocate, Mentor, Trainer and Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 (cell) or (716) 768-6506 (home, land-line) E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: The opinions expressed herein are those of the writer only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non-accountant, non-FINRA or SEC registered broker or adviser. Any information or consultation that seems like “incidental investment advice” is intended merely as educational, coaching, and mentoring1. Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS’ EB-5 Program, especially that portion dealing with Regional Centers. This writer wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I-924 Form Instructions. The writer is an outspoken advocate for improved adjudications at USCIS. Lastly, this reviewer is published in various immigration law outlets with well over 100 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in the most recent. NAICS Code: 611430 Professional and Management Development Training 2012 NAICS DEFINITION: 611430 PROFESSIONAL AND MANAGEMENT DEVELOPMENT TRAINING THIS INDUSTRY COMPRISES ESTABLISHMENTS PRIMARILY ENGAGED IN OFFERING AN ARRAY OF SHORT DURATION COURSES AND SEMINARS FOR MANAGEMENT AND PROFESSIONAL DEVELOPMENT. TRAINING FOR CAREER DEVELOPMENT MAY BE PROVIDED DIRECTLY TO INDIVIDUALS OR THROUGH EMPLOYERS' TRAINING PROGRAMS; AND COURSES MAY BE CUSTOMIZED OR MODIFIED TO MEET THE SPECIAL NEEDS OF CUSTOMERS. INSTRUCTION MAY BE PROVIDED IN DIVERSE SETTINGS, SUCH AS THE ESTABLISHMENT'S OR CLIENT'S TRAINING FACILITIES, EDUCATIONAL INSTITUTIONS, THE WORKPLACE, OR THE HOME, AND THROUGH DIVERSE MEANS, SUCH AS CORRESPONDENCE, TELEVISION, THE INTERNET, OR OTHER ELECTRONIC AND DISTANCE-LEARNING METHODS. THE TRAINING PROVIDED BY THESE ESTABLISHMENTS MAY INCLUDE THE USE OF SIMULATORS AND SIMULATION METHODS. That’s My Two-Cents, For Now! 1 See: 15 U.S.C. §80b–2. (a)(11) or go to: http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b- 2%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section80b- 2)&f=treesort&edition=prelim&num=0&jumpTo=true

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