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I-526 -- Immigrant Investor Petition AAO Decisi...
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I-526 -- Immigrant Investor Petition AAO Decisi...
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I-526 -- Immigrant Investor Petition AAO Decisi...
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I-526 -- Immigrant Investor Petition AAO Decisi...
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I-526 -- Immigrant Investor Petition AAO Decisi...
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I-526 -- Immigrant Investor Petition AAO Decisi...
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I-526 -- Immigrant Investor Petition AAO Decisi...
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I-526 -- Immigrant Investor Petition AAO Decisi...
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Immigrant Investor Petition AAO Decisions in 2014 (So Far!)

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Immigrant Investor Petition AAO Decisions in 2014 (So Far!)

  1. 1. Contact joseph.whalen774@gmail.com (716)604-4233 or (716) 768-6506 Page 1 I-526 -- Immigrant Investor Petition AAO Decisions in 2014 Compiled by Joseph P. Whalen, as of September 15, 2014 I-526 -- Immigrant Investor Petition AAO Decisions in 2014 LINK Holding, Comments, Excerpts JAN152014_01B7203.pdf Whatever You DO, Don’t Do This! Appeal Dismissed, Revocation Upheld, INA § 204(c) Sham Marriage Bar Applies. “In summary, the record contains substantive and probative evidence that the petitioner's previous marriage was entered into for the purpose of evading U.S. immigration laws, specifically the prior wife's sworn statement. The record does not contain relevant and probative evidence overcoming the prior wife's statement. Accordingly, the instant petition is not approvable pursuant to section 204(c) of the Act.” JAN272014_01B7203.pdf A Real “Cautionary Tale” Appeal Dismissed, w/Administrative Finding of Willful Material Misrepresentation. Petitioner filed two I-526s and an I-140 w/I-485; all have a different story behind them! All conflict with each other. FEB042014_01B7203.pdf Why Oh Why….Bother!?! Post-Appeal MTR Granted, Prior Dismissal Affirmed, Petition remains Denied w/Administrative Finding of Willful Material Misrepresentation left intact. “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.” FEB042014_02B7203.pdf You are seeing double, but only because it is a repeat of a foolish situation! Post-Appeal MTR Granted, Prior Dismissal Affirmed, Petition remains Denied w/Administrative Finding of Willful Material Misrepresentation left intact.
  2. 2. Contact joseph.whalen774@gmail.com (716)604-4233 or (716) 768-6506 Page 2 I-526 -- Immigrant Investor Petition AAO Decisions in 2014 LINK Holding, Comments, Excerpts “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 April17, 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.” FEB042014_03B7203.pdf You’ll notice that this third stooge got a NOID rather than having to be revoked. They all lied about these “joint ventures” out of the same rented space which was a heck of a lot smaller than they claimed. I’ll call these three: “The Case(s) of the Reused Rented Rat-holes!” Post-Appeal MTR Granted, Prior Dismissal Affirmed, Petition remains Denied w/Administrative Finding of Willful Material Misrepresentation left intact. “DISCUSSION: The Director, California Service Center, denied the petitioner's Immigrant Petition by Alien Entrepreneur (Form I-526), after first issuing a notice of intent to deny. Subsequently, on April 17, 2012, the Administrative Appeals Office (AAO) dismissed the petitioner's appeal, finding that she did not meet the eligibility requirements necessary to qualify for the preference visa petition, and that she 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.” FEB102014_01B7203.pdf At least there was no finding of material misrepresentation or prior marriage fraud this time! Will the trend continue? Appeal Dismissed. “……. According to the initial business plan, the petitioner's investment was intended to fund a food manufacturing plant to produce dim sum. The director determined that the petitioner had not established that her invested capital was obtained through lawful means, and that the petitioner's investment in the new commercial enterprise would create at least 10 new full-time direct positions to qualifying employees. As an additional issue, the petitioner did not demonstrate that she invested the claimed $500,000 into the new commercial enterprise.”
  3. 3. Contact joseph.whalen774@gmail.com (716)604-4233 or (716) 768-6506 Page 3 I-526 -- Immigrant Investor Petition AAO Decisions in 2014 LINK Holding, Comments, Excerpts FEB102014_02B7203.pdf Is anything due deference or not? If not, why not? The initial decision needs to analyze that situation as an initial matter and IPO needs to make that assessment in the first instance in this case. Certified Denial Withdrawn, Case Remanded for Further Action. Affiliated with SFIRC, a USCIS Designated Regional Center. “SUMMARY Based on the reasons stated above, this matter will be remanded. The IPO must issue a new decision, containing specific findings. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has not met that burden. ORDER: The director's decision is withdrawn; however, the petition is currently not approvable for the reasons discussed above, and therefore the AAO may not approve the petition at this time. Because the petition is not approvable, the petition is remanded to the IPO for issuance of a new, detailed decision which, if adverse to the petitioner, is to be certified to the AAO for review.” MAR072014_01B7203.pdf Similarly to the above case, the underlying analysis fails to address the earlier documents that supported earlier approvals for the initial Regional Center Designation and an Amendment. Another “do over”, if adverse, to be certified. Denial Withdrawn on Appeal, Case Remanded for Further Action. Affiliated with an unnamed Regional Center planning to lend funds to a project in order to construct and operate a marina and associated businesses in Florida. “The AAO will remand the matter back to the chief to consider whether a recent memorandum requires deference to the economic analyses in the record and, if not, to provide notice to the petitioner as to why not such that the petitioner can file a meaningful appeal.” MAR072014_02B7203.pdf Once a withdrawal has been accepted, it cannot be taken back or rescinded except in the most egregious cases of coercion or duress (or utter incompetence) by an Officer who incorrectly, DISCUSSION: The Director, California Service Center, denied the petitioner's Form I-526, Immigrant Petition by Alien Entrepreneur. Subsequently, the Administrative Appeals Office (AAO) dismissed the petitioner's appeal based on his withdrawal, but the AAO made a separate finding that the petitioner knowingly submitted documents containing false statements in an effort to mislead USCIS relating to an element material to their eligibility for a benefit sought under the immigration laws of the United States. The matter is now before
  4. 4. Contact joseph.whalen774@gmail.com (716)604-4233 or (716) 768-6506 Page 4 I-526 -- Immigrant Investor Petition AAO Decisions in 2014 LINK Holding, Comments, Excerpts inappropriately, and most likely illegally; persuaded someone to withdraw an application or petition based on a flawed premise and/or their misunderstanding of the law, and facts of the case. the AAO on a motion to reopen and a motion to reconsider. The motions will be granted, the previous decision of the AAO dismissing the appeal based upon its withdrawal will be affirmed, and the formal finding of misrepresentation will be withdrawn. APR232014_01B7203.pdf Non-RC group of EB-5 investors making many mistakes, the worst of which may have been filing the appeal. Throwing good money after bad! Appeal Dismissed. In my opinion, this case emphasizes the need for professional help in EB-5 investments. You’ll have to read this one for yourself. MAY122014_01B7203.pdf Direct Investment fails to demonstrate enough potential job creation. Appeal Dismissed: “….The NCE manufactures automotive parts for enhancing automotive performance. ……The chief determined that the petitioner had not established that he had invested or was actively in the process of investing the required amount of capital, that he obtained the investment capital through a lawful source and the investment amount is his personal capital, and that the NCE has created or will create the requisite 10 jobs. ….the petitioner asserts that the amended Form I-526 and other supporting documentation are internally consistent and demonstrate that the NCE will create at least 10 jobs.” MAY272014_01B7203.pdf Assisted living facilities in Texas. The developer is trying to act like a Regional Center without being one. Appeal Dismissed: Three “Direct Investors” all of whom are seeking EB-5 visas did not demonstrate sufficient job creation. There were additional problems concerning the source of funds. MAY272014_02B7203.pdf The developer is trying to act like a Regional Center without being one. Appeal Dismissed: “…[Unnamed] LLC is the general partner in 13 limited partnerships, LP through LP. Each of the 13 limited partnerships, including the NCE, plans to build, develop and operate an assisted living facility in Texas. …”
  5. 5. Contact joseph.whalen774@gmail.com (716)604-4233 or (716) 768-6506 Page 5 I-526 -- Immigrant Investor Petition AAO Decisions in 2014 LINK Holding, Comments, Excerpts MAY272014_03B7203.pdf Petitioner overcame AAO’s previously stated intent to make formal finding of material misrepresentation. Appeal Dismissed: “…According to the business plan, the NCE "is primarily engaged in wholesaling and exporting sea cucumber[ s] to Asia." The petitioner indicated in part 2 of the petition that the NCE is located in a targeted employment area. Thus, the required amount of equity investment is $500,000. In his July 11, 2013 decision, the chief denied the petition because the petitioner did not document the lawful source of the required amount of capital because he did not provide translations that the translator had certified according to the requirements set forth pursuant to the regulation at 8 C.F.R. § 103.2(b )(3), and the petitioner did not establish that his claimed investment has created or will create at least 10 full-time positions for qualifying positions. On appeal, the petitioner submits a brief and supporting documents. ….” “….In addition, while the AAO also expressed an intent to make a finding of material misrepresentation, the petitioner has overcome the bases of that intention. …” MAY292014_01B7203.pdf Unsecured loan proceeds do not equate to “cash”. Borrowed money needs to be secured and perfected just like a promissory note in order to count as personal assets used as capital for EB-5 investment. Appeal Dismissed “….The NCE imports and distributes Filipino products throughout the United States. The chief determined that the petitioner's contribution of $350,000 was a contribution of indebtedness, rather than cash, because it resulted from a personal bank loan. The chief then concluded that the petitioner had not demonstrated that the indebtedness was secured by the petitioner's personal assets as required under 8 C.F.R. § 204.6(e) (definition of capital).” MAY292014_02B7203.pdf What a mess! Appeal Dismissed This one was all over the place as to what the NCE would really do, the need for 10 full-time employees, the petitioner’s role in the NCE, and multiple issues relating to the funds.
  6. 6. Contact joseph.whalen774@gmail.com (716)604-4233 or (716) 768-6506 Page 6 I-526 -- Immigrant Investor Petition AAO Decisions in 2014 LINK Holding, Comments, Excerpts MAY302014_01B7203.pdf The director denied then affirmed that denial on Motion. AAO dismissed the appeal. This Motion came approximately 6 months later and was completely inadequate. Motion Dismissed [Both as untimely and meritless.] “Even if the motion was timely filed, the petitioner's motion does not overcome any of the original grounds in the June 18, 2013 decision. That decision explains that the petitioner did not demonstrate the following: 1. That she placed the required amount of capital at risk for the purpose of generating a return on capital based on a lack of evidence of any undertaking of actual business activity as of the filing date and a failure to explain sufficient capital expenses required for the business; 2. That the petitioner did not establish that her claimed investment had created or would create at least 10 full- time positions for qualifying employees based on her abandonment of that issue on appeal; and 3. That the petitioner did not document her lawful source of the required amount of capital based on inconsistencies between some of the translations and a lack of evidence tracing the complete path of funds.” JUN242014_01B7203.pdf IPO denied and then re- affirmed on motion. This RC-526 was denied solely on issues relating to the individual investor’s money and not to the “21-room expansion of a hotel” Regional Center project. Please don’t ask the U.S. government to help you cheat on your taxes in your home country! Appeal Dismissed “In his November 12, 2013 decision, the chief reaffirmed the denial of the petition, finding that the petitioner (1) failed to demonstrate she had made or was in the process of making an investment of personal qualifying capital; and (2) failed to document the lawful source of the required amount of capital. For the reasons discussed below, the petitioner has not overcome either of the chief’s grounds for denial. Accordingly, the petitioner's appeal will be dismissed.” The petitioner allegedly got the money from her ex-husband who allegedly got it from sale of a piece of property. The money was really something of a gift but was presented as “personal loan” which was unsecured. Later, counsel explains that they did it that way to avoid paying properly due gift taxes in Taiwan. “On appeal, the petitioner also asserts, "in practical terms, this [loan] transaction was intended as a gift and would have been documented as a gift except that a 'gift' would have incurred gift tax under the laws in Taiwan where the transaction took place, and a 'loan' did not." The petitioner has not supported her statement with any evidence in the record. ….”
  7. 7. Contact joseph.whalen774@gmail.com (716)604-4233 or (716) 768-6506 Page 7 I-526 -- Immigrant Investor Petition AAO Decisions in 2014 LINK Holding, Comments, Excerpts JUL022014_01B7203.pdf This E-2 Treaty Trader did not plan ahead in order to take the necessary steps to prepare his E-2 business into an EB-5 business. Also, it’s merely a used car lot! Does American need another one of those? Appeal Dismissed “The chief determined that the petitioner had not established that the claimed total amount of investment was from the petitioner's personal capital. In addition, the chief concluded that the petitioner did not demonstrate that the funds constituting the capital investment are lawfully obtained funds. Finally, the chief determined that the petitioner did not establish that he had created or would create the requisite 10 jobs.” Nothing submitted on appeal served to overcome any of the cited grounds for denial. JUL292014_01B7203.pdf A Regional Center affiliated case previously discussed as “RC-526 Jell-O Shot Down #1” This one and the next had similar issues. They both had the same “escrow agreement” problem as discussed in the case below. Appeal Dismissed “…. The July 30, 2012 Business Plan, page 4, states that the NCE would loan up to $2 million from employment creation immigrants to [REDACTED] to fund the development, Production, sale, and eventual manufacture of alcoholic gelatin shots. The director determined that the petitioner did not demonstrate the lawful source of her invested funds, and the petitioner did not establish that her investment in the new commercial enterprise would create at least 10 full-time positions to qualifying employees.” JUL292014_02B7203.pdf A Regional Center affiliated case previously discussed as “RC-526 Jell-O Shot Down #2” Appeal Dismissed “….the petitioner has not sufficiently documented the source and path of his funds with probative evidence, the petitioner did not establish that he invested capital obtained through lawful means pursuant to the regulation at 8 C.F.R. § 204.6(j)(3).” “….the petitioner has not submitted a comprehensive business plan demonstrating that his investment would create at least 10 positions as required pursuant to the regulation at 8 C.F.R. § 204.6(j)(4).” “Beyond the chief's decision, the petitioner has not demonstrated that he has maintained his investment in the NCE…”
  8. 8. Contact joseph.whalen774@gmail.com (716)604-4233 or (716) 768-6506 Page 8 I-526 -- Immigrant Investor Petition AAO Decisions in 2014 LINK Holding, Comments, Excerpts “…The escrow agreement states that "[i]n the event the I-526 is not approved, then the above funds ($540,000) will be returned to the investor by cashier's check within three days of receipt of the denial notice."…” More than three days passed between denial and appeal filing. AUG062014_01B7203.pdf This scam project started the rest of the EB-5 world talking about Due Diligence. I can proudly point to my 2011 article stressing this point! Appeal Dismissed: “Foundry Hotel” within a fraudulent RC based on investment in the overall “A Chicago Convention Center (ACCC), LLC” deal. The SEC brought charges. The fraudster was shut down; principle investments were frozen at the request of the SEC and then returned. Most of the “Administrative Fees” were not recovered and returned. AUG262014_01B7203.pdf Another case from the same group of investors whose initial project fell through because it was fake from the start. The investors were defrauded but apparently it wasn’t hard to do, as seemingly none of the “victims” performed sufficient (if any) due diligence on the project. Appeal Dismissed: Intercontinental Regional Center Trust of Chicago (IRCTC) was eventually terminated as a Regional Center on September 3, 2013. This action was due to the SEC fraud case. The main lesson learned from this case would be what you can glean from the discussion on material change during the pendency of an I-526. This is up-to-date as of this posting early on the morning of September 15, 2014.

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