Department of Homeland Security      Case 8:12-cv-01351-AG-MLG Document 1-4                             Filed 08/21/12 Pag...
Case 8:12-cv-01351-AG-MLG Document 1-5                      Filed 08/21/12 Page 1 of 25 Page ID #:128  WAC 08 246 00355/ A...
Case 8:12-cv-01351-AG-MLG Document 1-5                        Filed 08/21/12 Page 2 of 25 Page ID #:129  WAC 08 246 00355/...
Case 8:12-cv-01351-AG-MLG Document 1-5                         Filed 08/21/12 Page 3 of 25 Page ID #:130  WAC 08 246 00355...
Case 8:12-cv-01351-AG-MLG Document 1-5                     Filed 08/21/12 Page 4 of 25 Page ID #:131  WAC 08 246 00355/ A ...
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Chung I-829 ITD Aug 11, 2010

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Chung I-829 ITD Aug 11, 2010

  1. 1. Department of Homeland Security Case 8:12-cv-01351-AG-MLG Document 1-4 Filed 08/21/12 Page 25 of 25 Page ID #:127U.S. Citizen;hip andImmigration Services I-797E, Notice of Action A# . Application/Petition --;·- . A58708046 ::~: I-829 Petition bv Entrepreneur to Remove Conditions Receipt# Application/Petitioner ,.... .- W AC0824600355 Chun~. Jaemoon .. ·~: -~ ;::-, Notice Date August 11,2010 IPage 1 ofS Beneficiary ;3~ r:: . ... ":· ·- ~~~ ,-----------------------,,-;:,<::: JAMES J. PARK i HANUL PROFESSIONAL LAW CORPORATION Intent to Deny Process~ng Coversheet I 3699 WILSHIRE BLVD, SUITE 1150 LOS ANGELES, CA 90010 I CSC3351 WS24062 DIV III JP INotlre"" ~• too RETURN THIS BLUE PROCESSING COVERSHEET ON TOP OF YOUR RESPONSE TO THE INTENT TO DENY. Note: You are given until September 10, 2010 in which to submit the requested information to the address at the bottom of this notice. For more information, visit our website at WWW. uscis.gov Or call us at 1-800-375-5283 Telephone service for the hearing impaired: 1-800-767-1833 You will be notified separately about any other applications or petitions you filed. Save this notice. Please enclose a copy of it if you write to us about this case, or if you file another application based on this decision. Our address is: USCIS- CALIFORNIA SERVICE CENTER P.O. BOX 10590 LAGUNA NIGUEL, CA 92607-0590 111111111111111111111111111111111111111111111111111111111111111111111111111 800-375-5283 WAC0824600355 I Please see additional information on the reverse side. Forml-797E (Rev. 05/05/06) (Exhibit G)
  2. 2. Case 8:12-cv-01351-AG-MLG Document 1-5 Filed 08/21/12 Page 1 of 25 Page ID #:128 WAC 08 246 00355/ A 58 708 046 Page 2 This notice is in reference to the Form I-829, Petition by Entrepreneur to Remove Conditions, filed with the U.S Citizenship and Immigration Services (USOS) California Service Center for Jaemoon Chung, under Section 203(b)(5) of the Immigration and Nationality Act. The Service Center Director intends to deny the above petition. The record indicates that the petitioner was accorded classification as an alien entrepreneur pursuant to § 203(b)(5) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1153(b)(5), based on an investment in a new commercial enterprise. The Form I-526 was approved on October 27, 2005. The petitioner was then granted conditional permanent resident status on July I 4, 2006, and filed a Form I-829 (Petition by Entrepreneur to Remove Conditions) on June 02, 2008. A Request for Additional Evidence was issued on February 20, 2009. and a response was received on May OS, 2009. Upon review of the response, it has been determined that the petitioner has failed to demonstrate that he has created or soon will create the requisite employment. Section 203(b)(S)(A) of the Act provides classification to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise (including limited partnership) (i) in which such alien has invested (after the date of the enactment of the Immigration Act of I 990) 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 I-829 filed by the petitioner on June 02. 2008, did not contain sufficient evidence that the petitioner meets the regulatory requirements for classification as an alien entrepreneur under Section 203(b)(S). In fact, based on the information provided on the I-829 petition and accompanying documents, the petitioner does not qualify for this classification. The requirements for establishing that the required job creation has occurred, as well as other requirements of the Alien Entrepreneur EBS program are described in detail below. If the petitioner believes that he can qualify based on these requirements, documentary evidence must be provided to establish that the petitioner qualifies under each of these requirements as described below: Evidence of the Existing Qualifying Fmployees: Submit evidence of the current immigration status of the employees, which have already been hired to meet the employment creation requirement of rhe regulations. Also indicate the fa..mily relationship of the employees to you, if any. Use the criteria listed below to indicate that these existing employees qualify under the regulations. Attachment to lTD Coversheet
  3. 3. Case 8:12-cv-01351-AG-MLG Document 1-5 Filed 08/21/12 Page 2 of 25 Page ID #:129 WAC 08 246 00355/ A 58.708 046 Page 3 The evidence submitted in support of the I-8 2 9 Petition by Entrepreneur to Remove Conditions and in response to the request for additional evidence indicates that the majority of employees hired by Winter Dairy limited Partnership can not be counted toward job creation requiren1ents, as they are not authorized to work in the United States. The following employees have presented documents that were not issued by USOS and their names were verified through our system as unauthorized employees: Catarino Anthony Avala; Juan Bolvito Cahuec; Antonio Campa Ramirez; Ignacio Garcia Valencia; Jose Juan Garcia Cruz; Jose Larios Chavez; Ernestina Garcia Mojica; Sergio Nunc; Gerardo Oxlaj; David Salgaldo Rabadan; Juan Jose Reyes Lopes; Rolando Reyes Marques; Pedro Soto Torres; Alejandro Ventura G; Eugenia Bernal; Ma. De Los Angeles Bernal Zarate; Gabriel Rui.z Garcia; Fernando Macias; Mirian Guadalupe Herrera Ortiz; Guadalupe Redondo Topete; Jose De Jesus Reyes Najera; Mireya Herrera Ruiz; Isaias Sanchez Perez; Alejandro Velasco; and Daniel Mendoza (Castillo). Only qualifying employees may be counted toward job creation. The above employees do not meet the requirements of a qualifying employee as defined in Section 204.6(e) (ii). Evidence that the Commercial Enterprise Has Creat~ or Will Create Within the Two Year Conditional Period, Not Fewer than 10 Full-time positions for Qualifying Employees: The I-829 petition indicates that there are sixteen (16) new full-time jobs created as a result of the investment in Winter Dairy Limited Partnership. In response to the request for additional evidence, the attorney of record indicated that nineteen ( 19) new full-time jobs have been created. Based on the most recent quarterly wage report for the fourth quarter of 2008, there were eighteen ( 18) full-time employees who worked for Winter Dairy limited Partnership. Of the eighteen full-time employees listed on the quarter wage report, only two employees could be verified as qualifying full-time employees. Thirteen (13) employees are not qualifying employees. There were three employees listed on the quarterly report, but could not be established as qualifying employees as there were no employment verification documentation submitted. The three employees were: Fabian Cruz; Jose Lopez; and Jose Rene Moreno Lopez. The evidence submitted has not established that ten qualifying full-time employees have been hired to support the four ( 4) EB-5 investors in Winter Dairy Limited Partnership. The petitioner has not established that his investment has created ten (I 0) full-time jobs for qualifying employees. There have been two prior I-829 petitions filed on behalf ofEB-5 investors in Winter Dairy Limited Partnership. Both petitions were approved in 2008, absorbing seven initial (7) full-time employees: There are two rem-aining EB-5 investors wh~ have filed I-829 petitions, inclusive of this petitioner. The petitioner must establish that additional job creation has occmred. In order to support the four (4) immigrant investors, there must be a total of sixteen ( 16) full-time qualifying employees. The evidence must establish that the petitioner was qualified at the time of filing the I- 829, or a reasonable time thereafter. Title 8 Code of Federal Regulations section 204.6(j) ( 4) states, in pertinent part: (i) General. To show that a new commercial enterprise will create not fewer than ten (I 0) full-time positions for qualifying employees, the petition must be accompanied by: (A) Documentation consisting of photocopies of relevant tax records, Forms I-9, or other similar documents for ten (I 0) qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or Attachment to lTD Coversheet
  4. 4. Case 8:12-cv-01351-AG-MLG Document 1-5 Filed 08/21/12 Page 3 of 25 Page ID #:130 WAC 08 246 00355/ A 58 708 046 Page 4 (B) 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. (ii) Troubled business. To show that a new commercial enterprise which has been established through a capital invesnnent in a troubled business meets the statutory employment creation requirement, the petition must be accompanied by evidence that the number of existing employees is being or will be maintained at no less than the pre-investment level for a period of at least two years. Photocopies of tax records, Forms I-9, or other relevant documents for the qualifying employees and a comprehensive business plan shall be submitted in support of the petition. Section 204.6(e)(ii) defines qualifYing employees as follows: Qualifying employee means a United States citizen, a lawfully admined 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. For U.S. Citizens such evidence should include copies of birth certificates with photo ID, Certificates of Naturalization, or the biographical page of U.S. passports. For Permanent Residents such evidence should include a copy of a valid Pennanent Resident Card, a Permit to Reenter the United States, or a recent approval notice of an I-485, Application for Adjusnnent of Status. For recent immigrants to the United States a valid adit (I-551) stamp placed in the individuals passport by immigration officials at a U.S. Immigration port of entry or district office will also be acceptable. In the case of an adit stamp (I-551) please include copies of the biographical page and photo page of the passport and a copy of the adit stamp itself. For Asy!ees or Refugees provide a copy of the biographical page and the photo page of an I- 571 , Refugee Travel Document. If these documents have not yet been received provide a copy of the Refugee or Asylee catchet sta..rnp placed in Lhe individual passport at the tLme of entry into the US Include a copy of the biographical page and photo page of the passport. Provide the proof of citizenship, residency, or asylee/refugee documentation described above for each employee whose job has been created as a result of the petitioners investment in the existing business. Also, provide W-2 statements for each such employee covering the period between July 14, 2006 and June 02, 2008. Please note that proof of the immigrant qualifications of the workers hired to fill the employment creation requirements of the regulations is a separate issue from the work eligibility requirements of the Form I-9, Employment Eligibility Verification. The regulations do not preclude alien entrepreneurs from employing non-immigrant workers. However, such workers may not be counted in fulfillment of the job creation requirement. Attachment to ITD Coversheet
  5. 5. Case 8:12-cv-01351-AG-MLG Document 1-5 Filed 08/21/12 Page 4 of 25 Page ID #:131 WAC 08 246 00355/ A 58 708 04-6 Page 5 The beneficiary is not clearly eligible for classification under this section. Therefore, the petitioner is afforded thirty (30) days or thirty-three (33) days, if received by mail, from the date of this notice to submit additional information, evidence or arguments to support the petition. Failure to respond to this request will result in the denial of the petition. Attachment to lTD Coversheet

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