AAO Notice of Derogatory Information Feb 17, 2011 SDRC dairy farm case
Case 8:12-cv-01351-AG-MLG Document 1-5 Filed 08/21/12 Page 6 of 25 Page ID #:133 U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services JAEMOON CHUNG 21 SHEARWATER IRVINE, CA 92604 FILE: A58 708 046 WAC 08 246 00355 Date: FEB 11 2011 Dear Mr. Chung: On June 2, 2008, you filed a Form I-829 Petition by Entrepreneur to Remove Conditions pursuant to section 216A of the of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1186(b). You claim eligibility based on an investment in Winter Dairy, LP. The Director, California Service Center, denied the petition on September 21, 2010, concluding that the commercial enterprise had not created the required number of jobs for qualifying employees as required by the regulation at 8 C.P.R. § 204.6(e). The matter is now before the Administrative Appeals Office (AAO) on certification. ( The AAO will discuss the basis of the directors certified denial and the assertions raised on certification in our final decision. The purpose of this notice is to advise you that during the adjudication of the certified denial, information has come to light that is adverse to your claim of eligibility. Based in part upon this information, the AAO intends to affmn the directors decision and enter a formal finding of misrepresentation. Pursuant to U.S. Citizenship and Immigration Services (USCIS) regulations at 8 C.P.R. § 103.2(b)(16)(i), we hereby notify you of this derogatory information and provide you with an opportunity to respond before we render our final decision. The AAO conducts appellate review on a de novo basis. AAOs de novo authority is well recognized by the federal courts. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003). RKW Dairy, LLC is the general pa1iner of Winter Dairy, LP and the petitioner and three other alien entrepreneurs are limited partners of Winter Dairy, LP. Rodney Winter and Kimberlie Winter are the managing members ofRKW Dairy, LLC. A. Viability of the New Commercial Enterprise 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 that First National Bank foreclosed on Winter Dairy, LPs property. Thus, it does not appear that the new commercial enterprise is viable. (See attached). ( Exhibit I ) www.uscis.gov
Case 8:12-cv-01351-AG-MLG Document 1-5 Filed 08/21/12 Page 7 of 25 Page ID #:134 A58 708 046 Page2 B. Forms W-2 for Mr. and Mrs. Winter. Ycru: initially submitted the following documentation relating to the claimed employment created by Winter Dairy, LP: • Internal Revenue Service (IRS) Form 943, Employers Annual Federal Tax Return for Agricultural Employers listing total wages of$463,013.88 in 2007; • IRS Form 1065, U.S. Return of Partnership Income, showing guaranteed payments to partners of $26,800 and labor costs of $464,393 on Schedule F for 2007; and • A 2007 "Winter Dairy" Form W -3, Transmittal of Wage and Tax Statements, indicating the partnership issued 39 Forms W-2, Wage and Tax Statement, and listing total wages of $464,392.88. • Thirty-nine Forms W-2, none of which are issued to Mr. or Mrs. Winter. In this case, the enterprise must create a total of 40 full-time jobs for qualifying employees to satisfy the job creation requirement for all four alien investors. The director requested additional evidence on February 20, 2009. In response to the directors request for additional evidence, you submitted 2007 and 2008_Forms W-2 __.. for Mr. and Mrs. Winter. The Forms W-2 do not appear to be valid. While the Forms W-2 issued to Mr. and Mrs. Winter bear the name of "Winter Dairy, L.P." and the 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. 1 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 of 39 Forms W"2 for its claimed employees. The two additional Forms W-2 for the Winters are not part ofthe initial39 Forms W-2. In addition, the wages listed in Box I of the 2007 Form W-3 and on Schedule F of the 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 "establishments" under the same EIN. The Form W-3 of record does not include an "establishment number" in box "d" that might suggest "Winter Dairy" filed more than one Form W-3 in 2007. Counsel has asserted that Mr. Winter works for Winter Dairy, LP as the general manager and Mrs. Winter works for Winter Dairy, LP as the secretary and accountant. 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 on 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. 1 The "WINTER DAIRY" Forms W-2 list the number code "0000/1030D" under the year while the "Winter Dairy, L.P." Forms W-2 for Mr. and Mrs. Winter list the number code "0000/1015." The number code "0000/1030D" appears in the unnumbered box under Box 19 on the Form W-3.
Case 8:12-cv-01351-AG-MLG Document 1-5 Filed 08/21/12 Page 8 of 25 Page ID #:135 A58 708 046 Page 3 C. Forms I-9 for Unrelated Entity OTI August 11, 2010, the director issued a notice of intent to deny the petition, advising you that "the majority of employees hired by Winter Dairy Limited Partnership can not be counted toward job creation requirements, as they are not authorized to work in the United States." In response, you submitted Forms 1-9, Employment Eligibility Verification, and Forms W-4 for individuals whom you claim are qualifying employees. None of the Forms 1-9 list the business name in the employer certification. This omission is contrary to the form instructions and related regulations at 8 C.F.R. § 274a.2. Nick VandeWeerd signed the Forms 1-9; however, Nick VandeWeerd is not listed on the Winter Daily 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 Dai1y, LLP. Accordingly, you appear to have provided documents from an unrelated entity and deliberately misrepresented the Forms 1-9 and payroll records from Pleasant Dutch Daily as evidence of Winter Dairys employment of at least 16 qualifying employees. D. Conclusion You signed the Form 1-829 under penalty of peljury. The derogatory evidence discussed above raises serious -" concerns regarding the credibility of the remaining evidence. - I It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. at 586. Thus, you cannot overcome the above findings simply by offering a written explanation. Moreover, we will obviously not accept any photocopied documentation, documents purportedly pasted into emails or letters as evidence to overcome the above derogatory infonnation. Pursuant to the regulation at 8 C.F.R. § 103.2(b)(5), we have the discretion to request the originals of any photocopies submitted. Section 212(a)(6)(C) of the Act provides: Misrepresentation. - (i) In general. - Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible. Based on our review of the record, the AAO concludes that you submitted fraudulent Forms W -2 for Ronald and Kimberlie Winter, and fraudulent Forms 1-9 alleged to relate to Winter Dairy, LP but clearly from a separate company, as evidence that you have employed or currently employ the requisite number of qualifying employees. By filing the instant petition and submitting the evidence discussed above, you appear to have sought to procure a benefit provided under the Act through misrepresentation. Unless you are able to provide substantial evidence to overcome, fully and persuasively, all of our above findings, the AAO will affirm the directors denial and enter a formal finding of misrepresentation into the record. This finding of misrepresentation will be considered in any future proceeding where admissibility is an issue. While you may choose to withdraw your petition, this will not prevent a finding that you have sought to procure immigration benefits through willful misrepresentation of a material fact.
Case 8:12-cv-01351-AG-MLG Document 1-5 Filed 08/21/12 Page 9 of 25 Page ID #:136 A58 708 046 Page 4 The regulation at 8 C.F.R. § 103.2(b)(16)(i) does not specify the amount of time afforded to an applicant or petitioner to respond to derogatory evidence. We consider fifteen (15) days to be ample time for this purpose. Tlretefore, you are hereby afforded 15 days from the date of this letter in which to respond to this notice. If you choose to respond, please submit your response to the address shown on the first page of this letter. Also, please reference your alien registration number, A58 708 046, in your response. Thank you, Pe Rhew C ef, Administrative Appeals Office cc: James J. Park Hanul Professional Law Corporation 2677 Main St., Suite 1070 Santa Ana, CA 92705 Enclosure: ( December 18, 2009 Complaint Annual Report for Pleasant Dutch Dairy, LLP