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Matters of H-Y-, (AAO July 15, 2016 & Dec. 4, 2015) I-526 Problems with Funds & Jobs

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Matters of H-Y-, (AAO July 15, 2016 & Dec. 4, 2015) I-526 Problems with Funds & Jobs

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Matters of H-Y-, (AAO July 15, 2016 & Dec. 4, 2015) I-526 Problems with Funds & Jobs

  1. 1. (b)(6) MATTER OF H-Y- Non-Precedent Decision of the Administrative Appeals Office DATE: JULY 15,2016 MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION PETITION: FORM I-526, IMMIGRANT PETITION BY ALIEN ENTREPRENEUR The Petitioner made an investment into doing business as a new commercial enterprise (the NCE). The Petitioner now seeks classification as an immigrant investor. See Immigration and Nationality Act (the Act) section 203(b)(5), 8 U.S.C. § 1153(b)(5). This fifth preference classification makes immigrant visas available to foreign nationals who invest the requisite amount of qualifying capital in a new commercial enterprise that will benefit the United States economy and create at least 10 full-time positions for qualifying employees. The Chief, Immigrant Investor Program Office (IPO), denied the petition. The Chief concluded that the Petitioner did not document the lawful source of funds she transferred to theNCE, or show that theNCE met the employment creation requirements. On appeal, we found that the Petitioner did not . overcome either of the Chiefs grounds for denial. In addition, we determined that she did not place her ownfunds at risk for the purpose of investing in the NCE. The matter is now before us on a motion to reopen and a motion to reconsider. In support of her motions, the Petitioner submits additional evidence and maintains that she has shown her eligibility for the immigrant investor classification. We will deny the motions. I. LAW A foreign national may be classified as an immigrant investor if he or she invests the requisite amount of qualifying capital in a new commercial enterprise. The commercial enterprise can be any lawful business that engages in for-profit activities. The foreign national must show that his or her investment will benefit the United States economy and create at least 10 full-time jobs for qualifying employees. This job creation should generally occur within two years of the foreign national's admission to the United States as a conditional permanent resident. A motion to reopen must state the new facts to be provided and be supported by affidavits or other documentation. 8 C.P.R. § 103.5(a)(2). However, ariy new facts must relate to eligibility at the time the Petitioner filed the petition. See 8 C.P.R. § 103.2(b)(l), (12); see also Matter of Katigbak, Matters of H-Y-, (AAO July 15, 2016 & Dec. 4, 2015) I-526 Problems with Funds & Jobs By Joseph P. Whalen at 11:15 am, Aug 09, 2016 e-mail: joseph.whalen774@gmail.com
  2. 2. (b)(6) Matter ofH-Y- 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A motion to reconsider must offer the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the previous decision was based on an incorrect application of law or U.S. Citizenship and Immigration Services (USCIS) policy. 8 C.F.R. § 103.5(a)(3). A motion to reconsider is based on the existing record and the Petitioner may not introduce new facts or new evidence relative to his or her arguments. A motion to reconsider contests the correctness of the original decision based on the previous factual record, as opposed to a motion to reopen which seeks a new hearing based on new materials. Compare 8 C.F.R. § 103.5(a)(3) and 8 C.F.R. § 103.5(a)(2). II. ANALYSIS On motion, the Petitioner submits additional evidence, including new translations of previously submitted documents and photocopies of a "Certificate of Accuracy." The record, including documentation she previously filed and additional documentation provided on motion, does not establish the lawful source of funds she sent to the NCE, that the NCE meets or will meet the job creation requirements, or that she has made an at-risk investment of at least $500,000 in the NCE. We will therefore deny her motion to reopen. Similarly, on motion to reconsider, the Petitioner has not demonstrated that our previous decision was based on an incorrect application of law or USCIS policy. We will thus deny her motion to reconsider. A. Translations of Foreign Language Documents In our dismissal ofthe Petitioner's appeal, we discussed the translated documents in the record. The Petitioner submitted photocopies of several certifications of accuracy, identifying different translators. These photocopies, however, did not specifically list the translated documents that the translators were certifying. On motion, the Petitioner provides photocopies of a certificate of accuracy, identifying as the translator. Like the ones previously offered, the photocopies presented on motion do not reference the translated foreign language documents, other than referring to them as "the attached document[s]." Without additional information, the Petitioner has not demonstrated that the certificates relate to foreign language documents in the record, or to which foreign language documents they refer. As we stated in our initial decision: "A single certification, even if photocopied, is more probative of the accuracy of each translation when it identifies the translations it is certifying." Notwithstanding these concerns relating to the accuracy and completeness of translated documents in the record, including those filed on motion, we will consider them below as limited probative value of her claims. B. Lawful Source of Invested Funds In our previous decision, we concluded that the Petitioner did not document the complete path ofher funds, and thus did not demonstrate that the funds she sent to the NCE as capital investment wereI " her own. See Matter oflzummi, 22 I&N Dec. 169 (Assoc. Comm'r 1998); see also Matter ofSoffici, 22 I&N Dec. 158, 165 n.3 (Assoc. Comm'r 1998). transferred $501,000 to the Petitioner. The Petitioner then remitted $500,150 to the 2
  3. 3. (b)(6) Matter ofH-Y- NCE. We found that the Petitioner did not establish the funds that originated from were hers. In the decision, we also noted that she offered a Personal Banking Business Voucher to show that she remitted 3,154,500 Renminbi (RMB) to director. The Petitioner, however, did not provide a translator's certificate for the foreign language voucher, as required under 8 C.F.R. § 103.2(b)(3).1 On motion, the Petitioner submits a certificate from stating that its "Board of Director Resolution approved and agreed that to receive RMB 3,154,500 for the company to do wire transfer for [the Petitioner.]" The Petitioner again provides: (1) an Application for Funds Transfers (Overseas), indicating that sent$501 ,000 to the Petitioner; (2) a Customer Advice, providing that the Petitioner remitted $500,150 to the NCE; and (3)the NCE's bank statement, showing a $500,150 credit. The record, including materials the Petitioner has presented on motion, does not demonstrate the complete path of the funds she transferred to the NCE. The Petitioner has submitted bank documents indicating that she sent 3,154,500 RMB to She stated on motion that " received the funds and delivered [them] to She, however, has not substantiated her statement. She has not illustrated that deposited the funds in a account or actually delivered them to the company. While the entity's certificate reflects that received funds from the Petitioner "for the company to do wire transfer for [the Petitioner]," the Petitioner has not offered documentation, such as bank records, showing actual receipt of funds from Significantly, an individual and a corporation are not generally recognized as the same entity. See Soffici, 22 I&N Dec. at 162 (finding that a loan obtained by a corporation is not the same as a loan obtained by an individual who is the sole shareholder of the corporation). Funds that an individual received; without further evidence, do not become funds that a corporation received. Furthermore, th~ Remittance Entrustment Agreement, which specified how the parties were. to remove the Petitioner's funds from China through account, made no mention of involvement. As the Petitioner has not shown that transferred funds to she has not established how the company acquired the $501,000 that it later remitted to her, or whether she owned the funds thatoriginated from the entity. As ·the Petitioner has not documented the full path of the funds, she has not shown by a preponderance of the evidence that the $500,150 she sent to the NCE were her own assets. Accordingly, she has not demonstrated the lawful source of the investment capital as required under 8 C.F.R. § 204.60)(3). 1 The Petitioner did not initially present a translation certificate for the voucher, but did offer an Affidavit of Translation on motion. She, however, had previously filed the same affidavit for the Remittance Entrustment Agreement. This underscores our concern that the Petitioner has not shown which, if any, of her foreign language documents were seen and translated by a qualified translator. 3
  4. 4. (b)(6) Matter ofH-Y- C. Employment Creation at theNCE In our previous decision, we found that the NCE did not meet the job creation requirements of at least 10 full-time positions. Specifically, we concluded that the NCE took over an existing business's operation, and hired some of that business's former employees. The existing entity, is located next to theNCE, and like theNCE, operates a printing business. We determined that the Petitioner did not show that the NCE had created 10 new full-time positions or include a comprehensive business plan, demonstrating theNCE's need for at least 10 new full-time employees. On motion, the Petitioner has not specifically challenged our finding that the NCE took over operation, or at least some portion of it, or that at least nine of theNCE's employees were former employees, and thus would not constitute evidence oftheNCE's employment creation. On motion, the Petitioner acknowledges that to meet the employment creation requirements, the NCE must create 10 new full-time positions for qualifying employees, in addition to the nine former employees of that it had hired. The Petitioner indicates that theNCE has not yet created 10 new positions, but maintains that the business plan, which she offers for the first time on motion, demonstrates that theNCE will reach its goal of hiring "ten (10) new full-time employees." Page 4 of the business plan stated that theNCE employed seven new full-time employees and planned to hire for three additional full-time positions. I The regulation at 8 C.F.R. § 204.6G)(4)(i)(B) provides that if a new commercial enterprise has not yet created the requisite 10 jobs, the petitioner must offer a comprehensive business plan demonstrating the new commercial enterprise's need for not fewer than 10 new full-time employees. A comprehensive business plan, as contemplated by the regulations, should contain, at a minimum, a description ofthe business, its products and/or services, and its objectives. Matter ofHo, 22 I&N Dec. 206, 213 (Assoc. Comm'r 1998). Elaborating on the contents of an acceptable business plan, Ho states that the plan should contain a market analysis, the pertinent processes and suppliers, marketing strategy, organizational structure, personnel's experience, staffing requirements, timetable for hiring, job descriptions, and projections of sales, costs, and mcome. The decision concludes: "Most importantly, the business plan must be credible." ld. The business plan that the Petitioner has offered on motion does not constitute a comprehensive business plan, and does not credibly show theNCE's need for at least 10 new full-time employees. Specifically, the business plain did not provide information on operation or discussed as one of theNCE's competitors. is an adjacent business that, like theNCE, is in the printing industry. Given the close proximity between the two businesses and their operation in the same industry, the business plan should have explained how or if affects the NCE, specifically, as it relates to projected revenues and profits, because these figures .are relevant to theNCE's staffing plan. Moreover, as discussed in our previous decision, evidence shows that theNCE and operations might be connected. For example, also known as is agent according to the California Secretary of State's website. He also serves as theNCE's secretary, chief financial officer, and director. TheNCE's workers' compensation application listed address, the 4
  5. 5. (b)(6) Matter ofH-Y- NCE's September 2012 and November 2012 lease agreements referenced address, and phone calls made to and to theNCE both resulted in the same person answering the phone as an representative. The NCE also leased equipment from and hired at least nine of its former employees. On appeal, the Petitioner offered explanations, which, as .noted in our previous decision, did not fully address these concerns regarding whether ·or how these businesses are connected. Without additional information on the Petitioner has not demonstrated that the business plan is credible or comprehensive. The Petitioner has not established whether the 10 additional full-time positions referenced in the business plan are new positions or positions moved over from as the NCE takes over a portion of operation. Accordingly, the Petitioner has not shown that the NCE has created or will create at least 10 new full-time positions, as required under 8 C.F.R. § 204.6G)(4)(i). D. At-Risk Investment In our previous decision, we concluded that the Petitioner did not place the required amount of capital at risk. Four months after the Petitioner sent $500,150 to theNCE, approximately $390,000 remained in the NCE's accounts. The Petitioner did not explain how these funds would be used. See Ho, 22 I&N Dec. at 209-10 (finding that depositing funds into a corporate account under a petitioner's control does not qualify as an at-risk investment); see also Al-Humaid v. Roark, Civ. Act. No. 3:09-CV-982-L., 2010 WL 308750, at *4 (N.D. Tex. Jan. 26, 2010) (determining that a petitioner cannot meet the "at risk" requirement by simply depositing funds into a corporate account). In addition, the Profit and Loss Statement covering September 1, 2012, through October 17, 2012, illustrated that the NCE had begun to generate revenue. In light of these figures, the Petitioner has not demonstrated that theNCE might require her entire investment capital. On motion, the Petitioner offers a Profit and Loss Statement covering September 2012 through November 2015, and other supporting evidence, such as tax and payroll documents. The Petitioner maintains that during this period, theNCE's total expenses were approximately $2.69 million, and "far exceed the Petitioner's investment of $500,000." Notwithstanding the stated expenditures, the record, including documentation the Petitioner has filed on motion, does not establish that the Petitioner has placed at least $500,000 at risk in the NCE. Specifically, the business plan provided that theNCE had a net loss of $3,500 between September 2012 and December 2012, and a net loss of $21,204 in 2013. The financial document indicated that theNCE began to have a net income in 2014, meaning its revenue or gross profit fully covered its expenses. stated in his letter that theNCE's sales in 2012 were $405,390; $1,631,494 in 2013; $2,092,576 in 2014; and $2,004,635 in the first 11 months of 2015. He estimated that sales would reach $2,200,000 by the end of 2015. Documents entitled "Sales by Customer Summary" and the business plan included the same or comparable figures. This financial data, including theNCE's net income, do not show that at least $500,000 of the funds the Petitioner sent to the NCE will be spent on job creation. 5
  6. 6. Matter ofH-Y- The Petitioner points to the NCE's total expenses of approximately $2.69 million between September 2012 and November 2015. The Profit and Loss Statement, however, indicated that during the same period, theNCE's gross profit was approximately $2.67 million. According to the Profit and Loss Statement, although the gross profit is not sufficient to cover the entire amount of expenditures, it left theNCE with a "Net Ordinary Income" of -$26,511.92, which is much less than $500,000. Page 2 ofthe Profit and Loss Statement included theNCE's "Other Income" and "Other Expense," and stated that theNCE's Net Income between September 2012 and November 2015 was -$30,011.64. The evidence the Petitioner submits on motion shows both theNCE's expenses and revenue, and demonstrates that the NCE's revenue covers its expenses, or at least a substantial portion of them. The various net loss and net income figures the Petitioner has presented do not establish theNCE's would utilize a capital investment ofat least $500,000 for job creation. As such, the Petitioner has not illustrated that she has committed or placed at risk at least $500,000 in the NCE. III. CONCLUSION We have considered the evidence offered on motion, along with previously filed documentation, and conclude that the Petitioner has not shown her eligibility 'for the immigrant investor classification. We will therefore deny her motion to reopen. In addition, the Petitioner has not demonstrated that our previous decision was based on an incorrect application of law or USCIS policy. We will thus deny her motion to reconsider. The motions will be denied for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden. Accordingly, we will deny the motions. ORDER: The motion to reopen is denied. FURTHER ORDER: The motion to reconsider is denied. Cite as Matter ofH-Y-, ID# 16972 (AAO July 15, 2016) 6
  7. 7. (b)(6) MATTER OF H-Y- Non-Precedent Decision of the Administrative Appeals Office DATE: DEC. 4, 2015 APPEAL OF IMMIGRANT INVESTOR PROGRAM OFFICE DECISION PETITION: FORM I-526, IMMIGRANT PETITION BY ALIEN ENTREPRENEUR The Petitioner, an individual, seeks classification as an immigrant investor. See Immigration and Nationality Act (the Act) § 203(b)(5), 8 U.S.C. § 1153(b)(5). The Chief, Immigrant Investor Program Office (IPO), denied the petition. The matter is now before us on appeal. The appeal will be dismissed. I. RELEVANT LAW AND REGULATIONS Section 203(b)(5)(A) of the Act, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758 (2002), provides classification to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise: (i) in which such alien has invested (after the date of the enactment ofthe Immigration Act of 1990) 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 immigrant's spouse, sons, or daughters). II. PERTINENT FACTS AND PROCEDURAL HISTORY The Petitioner filed the petition on November 26, 2012, with supporting materials. The Petitioner indicated that she created doing business as as a new commercial enterprise (NCE) through the creation of a new business. As theNCE is within a targeted employment area, the required amount of capital in this case is $500,000. The NCE is engaged in printing and related services, such as printing business forms, carbonless forms and documents, letterhead, and labels. The Director, California Service Center, issued a request for evidence (RFE) on January 28, 2014. The Petitioner responded to this request on April 18, 2014; with additional information. The Chief determined that the Petitioner had not established the lawful source of her invested funds, and that the Petitioner had not met the relevant job creation requirements. On April 28, SEE SUMMARY ON PAGE SEVEN (7).
  8. 8. (b)(6) Matter ofH-Y- 2015, the Petitioner filed an appeal with U.S. Citizenship and Immigration Services (USCIS). On appeal, the Petitioner submits a briefwith additional exhibits. III. ANALYSIS A. Translations of Foreign Language Documents Several of the items on record that were originally in a foreign language were not accompanied by a translation that complies with the regulation at 8 C.P.R.§ 103.2(b)(3). This regulation first requires that foreign language documents be accompanied by a full English language translation, rather than a summary or extract. Further, the regulation requires the translator to certify the translation as complete and accurate, as well as certifying that he or she is competent to translate from the foreign language into English. Several of the initially submitted translations were either not full English translations, or were not accompanied by a sufficient translator's certification. In response to the Director's RFE, the Petitioner provided certified translations dated April 3, 2014, listing as the translator. The certifications of the accuracy of the translations were identical photocopies, and did not list the translations she was certifying or the Petitioner. On appeal, the Petitioner resubmits some of the previous translations in addition to translations from that are also accompanied by photocopies of the same certification that does not identify the translations or the Petitioner. A single certification, even if photocopied, is more probative of the accuracy of each translation when it identifies the translations it is certifying. Moreover, the translations themselves contain some language that is not entirely clear. For example, the contracts whereby the Petitioner's spouse purchased two pieces of property in 2007 both contain an Annex 1 with the terms of payment. Both annexes indicate that there are "no loans," but include a "down payment loan" amount and reflect that the buyer, the Petitioner's spouse, would be "paid back the principal." The amount to be repaid to the buyer is more than the down payment. Therefore, according to the translations, the buyer is receiving more funds than he is paying. The Chief, however, did not raise any concerns regarding these translations and we will consider them below. B. Lawful Source of Invested Funds The regulation at 8 C.P.R. § 204.6(j)(3) lists the type of documentation a petitioner must submit, as applicable, including foreign business registration records, business or personal tax returns, or evidence of other sources of capital. The Petitioner asserts that she and her spouse purchased two properties in 2007, which they subsequently sold in 2011, utilizing the proceeds of the sale to invest in the NCE. The Chief determined that the Petitioner had not demonstrated how her spouse lawfully earned the funds, which he used to purchase two properties. On appeal, the Petitioner offers additional items relating to how her spouse obtained the funds he used to purchase the property in 2007. These foreign language documents submitted on appeal are accompanied by the certifications. If we were to accept the translations, the evidence she provides on appeal would likely be sufficient to 2
  9. 9. (b)(6) Matter ofH-Y- show that her spouse lawfully obtained the funds she invested in the NCE. Specifically, the Petitioner's company received a significant sum for confiscated property and debit vouchers confirm the company paid the seller of two properties to the Petitioner, the amounts listed as down payments on both Annexes on January 12, 2007 and the remaining balance of both purchase prices1 on February 2007. The Petitioner, however, must establish the full path of her funds in order to meet her burden of demonstrating that the funds are her own. Matter of Izummi, 22 I&N Dec. 169 (Assoc. Comm'r 1998); see also Matter ofSo.ffici, 22 I&N Dec. 158, 165 n.3 (Assoc. Comm'r 1998). The Petitioner has not documented the path from the subsequent buyer of these two properties from the Petitioner's spouse to theNCE. The Petitioner provided a Remittance Entrustment Agreement dated February 21 , 2012, in which she and a friend, , agreed on a method to remove the Petitioner's funds from China through the friend's account. In response to the RFE, the Petitioner asserted that on February 28, 2012, she transferred 3,154,500 Chinese Yuan Renminbi (RMB) from her account to . She offered a Personal Banking Business Voucher reflecting a transfer of that amount from the Petitioner's account ending in 0078 into account ending in 6838. The voucher, however, is in a foreign language, and its translation is not accompanied by any translator's certification. Also in response to the RFE, the Petitioner included a fund transfer receipt reflecting that a company named ~ ~ transferred $501,000 from an account ending in 1596 to the Petitioner's account ending in 5772. While is a director of the Petitioner did not show how the funds moved from account ending in 6838 to the account ending in 1596. The Petitioner subsequently transferred the funds from her account ending in 5772 into theNCE's account ending in 7049. As the Petitioner has not documented the full path of the funds to establish the investment funds are her own, she has not demonstrated the lawful source of the funds pursuant to the regulation at 8 CTR. § 204.60)(3). We find that the Petitioner has not shown that she has invested, or is actively in the process of investing capital obtained through lawful means. C. Employment Creation at theNCE The regulation at 8 C.F.R. § 204.6(j)(4)(i)(A) lists the evidence that a petitioner must submit to corroborate employment creation, including photocopies of relevant tax records, Forms I-9 Employment Eligibility Verification, or other similar documents for ten qualifying employees. Alternatively, if the new commercial enterprise has not yet created the requisite ten jobs, the petitioner must file a copy of a comprehensive business plan showing the need for not fewer than ten qualifying employees. 8 C.F.R. § 204.6(j)(4)(i)(B). The regulation at 8 C.F.R. § 204.6(e) defines employee as an individual who provides services directly to the commercial enterprise and excludes independent contractors. The same regulation defines a qualifying employee as a United States citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be 1 The translations of the Annexes characterize these balances as principal to be repaid to the buyer, but the debit vouchers confirm that the spouse's company paid these amounts to the seller on behalf of the Petitioner. 3
  10. 10. (b)(6) Matter ofH-Y- employed in the United States. The definition excludes the petitioner, the petitioner's spouse, sons, or daughters, or any nonimmigrant. Section 203(b)(5)(D) of the Act defines full-time employment as "employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position." Full-time employment also means continuous, permanent employment. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1039 (E.D. Calif. 2001) aff'd 345 F.3d 683 (9th Cir. 2003) (finding this construction not to be an abuse of discretion). On the Form I-526, Immigrant Petition by Alien Entrepreneur, the Petitioner indicated that theNCE was the result of creating a new business, which correlates with the regulation at 8 C.P.R. § 204.6(h)(1). The Petitioner provided evidence often employees, and has consistently asserted that a comprehensive business plan is not required. The Director's RFE discussed several issues relating to theNCE's employees and officers, and those of an adjacent printing business named . The Director acknowledged that theNCE has leased equipment from . but also noted agent listed on the California Secretary of State's website is the NCE's secretary, chief financial officer, and director. Other concerns included the NCE's worker's compensation application listing address, and the reference to address in the NCE's September 2012 lease agreement. Specifically, while the lease covers , subparagraph 15.26 explains that the lease for these two properties in addition to ____ -----·- ________ shall terminate as of August 31, 2012, implying that the prior lease covered all three addresses. The Chief also pointed out that filed an immigrant petition for a foreign national who is listed as theNCE's manager. Lastly, the Director noted that phone calls made to and to theNCE both resulted in the same person answering the phone as an representative. The Director deduced that the NCE took over business and employees and, as such, any personnel that previously employed would not count towards the required ten new employees. The Petitioner responded to the Director's concerns by asserting the NCE did not takeover business and employees, but instead that it leased equipment from and rehired nine employees that needed to lay off. The Petitioner also indicated in the RFE response that the NCE did not take over any accounts receivable or accounts payable from The Petitioner explained that address was included on the lease due to the landlord requesting a personal guarantee for the rent, therefore the NCE's secretary, ' , represented the NCE and provided the personal guarantee relating to the rent. The Petitioner submitted a November 2012 lease that is identical to the September 2012 lease, accompanied by a November 6, 2012, personal guarantee from . The Petitioner does not explain why the landlord requested this guarantee only in November 2012, and not in September 2012 at the time ofthe first lease. Regarding the worker's compensation application listing the address for instead of the NCE, the Petitioner asserted this was a typographical error that she had remedied. In reference to the same person answering both phones as an representative, the Petitioner indicated that someone from the maintenance staff mistakenly answered theNCE's phone. However, the Petitioner has not explained how the maintenance staff from a separate business would have access to the NCE's 4
  11. 11. (b)(6) Matter ofH-Y- phones, or why an employee of a separate business would answer the NCE's phone. The Chief ultimately determined that the NCE did not create new employment. On appeal, the Petitioner references 8 C.F.R. § 204.6(j)(4)(i)(B) for the proposition that she is not required to demonstrate job creation until six months after the adjudication of the Form I-526, or at the stage when she files the Form I-829, Petition by Entrepreneur to Remove Conditions. That provision, however, requires the submission of a comprehensive business plan, which the Petitioner has not included. Accordingly, the Petitioner must comply with the regulation at 8 C.F.R. § 204.6(j)(4)(i)(A), which states the Petitioner must provide evidence thatten qualifying employees have already been hired. Within the appeal and in response to the RFE, the Petitioner asserts that the NCE did not take over accounts receivable or its accounts payable. However this statement only relates to debts and funds it is owed. It does not address regular accounts, operations, or its employees. Regarding employees, the Petitioner indicated that the NCE hired nine employees that . needed to lay off. She did not suggest that actually laid off or fired these employees. It is the Petitioner's position that even if USCIS views her situation as a takeover of - --- business, she would continue to qualify as the NCE has made a substantial change in the number of employees that amounts to at least 140 percent of its pre-expansion number of employees. See 8 C.F.R. § 204.6(h)(3). That provision, however, relates to whether the Petitioner has created an original business through the expansion of an existing business, and does not satisfy the job creation requirements. She must still create at least 10 new positions. Regardless, although the Petitioner provided payroll summary for the period between January and December of 2011, this exhibit does not show the number of full time and part time employees on the date she established the NCE, March 5, 2012, or made her initial investment in theNCE, May 2, 2012. As a result, it is not possible to calculate the pre-expansion number of employees to determine if the Petitioner meets the regulation at 8 C.F.R. § 204.6(h)(3). The preponderance of the evidence is consistent with the NCE taking over employees and operations, or at least those associated with , which appear to have been previously covered under the same lease along with current address). This determination is based on the numerous factors discussed within the Director's RFE noted above, notwithstanding the Petitioner's explanations. Notably, of the 10 employees the Petitioner included on its ·initial employee list accompanying the petition, nine of them are former employees reflected on that company's 2011 payroll summary. It is more likely than not that the Petitioner acquired some portion of operations, to include some of its employees. USCIS determines the truth not by the quantity of evidence alone but by its quality. Matter of Chawathe, 25 I&N Dec. at 376 citing Matter ofE-M-, 20 I&N Dec. 77, 80 (Comm'r 1989). Using this standard, we agree with the Chiefs ultimate conclusion that the record does not establish the Petitioner's eligibility. 5
  12. 12. Matter ofH-Y- D. Commitment ofFunds 1. Authority The regulation at 8 C.F.R. § 204.6(e) defines capital and investment. The regulation at 8 C.F.R. § 204.6G)(2) explains that a petitioner must document that he or she has placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk. Evidence of only an intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that a petitioner is actively in the process of investing. A petitioner must establish actual commitment of the required amount of capital. The regulation then lists the types of documentation a petitioner may submit to meet this requirement. 2. Analysis We conduct appellate review on a de novo basis. See Siddiqui v. Holder, 670 F.3d 736, 741 (7th Cir. 2012); Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004); Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). For the reasons outlined below, a review of the record of proceeding does not reflect that the Petitioner submitted sufficient documentary evidence establishing that she committed the requisite funds to the NCE. After the Petitioner transferred $500,183.57 into the NCE account ending in 7049 on May 2, 2012, theNCE incurred $184.054.48 in expenses from September 1, 2012, through October 17, 2012, according to the company's Profit and Loss Statement for that period. TheNCE had already begun earning revenue at that time, such that normal operating expenses after that are not necessarily capital expenditures. The Petitioner did not establish how the remaining funds were committed to the NCE, although she submitted statements relating to two of the NCE's bank accounts. The business savings account ending in 9929 contained approximately $150,000 during the month that the Petitioner filed the petition. The second account ending in 7049 contained approximately $240,000 during the same month. It is this second account into which the Petitioner transferred her investment. The petition was not accompanied by a business plan or a detailed analysis from the Petitioner explaining any future capital expenses. Further, according to the minutes of the NCE's organizational meeting, these funds were made available to the Petitioner and the NCE's Vice President. The minutes did not specify that removal of the funds required the signature of both parties. See Ho, 22 I&N Dec. at 209-210 (finding that depositing funds into a corporate account under a petitioner's control does not qualify as an at-risk investment); see also Al-Humaid v. Roark, Civ. Act. No. 3:09-CV-982-L., 2010 WL 308750, at *4 (N.D. Tex. Jan. 26, 2010) (finding that a petitioner cannot meet the "at risk" requirement by simply depositing funds into a corporate account). On appeal the Petitioner asserts that she is negotiating with the landlord regarding a future expansion of the business into a facility adjacent to one of its current offices, but does not break down the necessary capital needed for the expansion. Financial projections would bolster the Petitioner's position that she has placed the entire $500,000 at risk. See Al-Humaid, 2010 WL 308750, at *4.
  13. 13. Matter ofH-Y- IV. CONCLUSION For the reasons discussed above, the Petitioner has not established the lawful source of her funds, that she met the job creation requirements, or that her invested capital is fully at risk through actual commitment to theNCE. The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden. ORDER: The appeal is dismissed. Cite as Matter ofH-Y-, ID# 14716 (AAO Dec. 4, 2015) EB-5 Direct - Non-Regional Center Printing of Business Forms etc… via “Creation of a New Business” Claiming Jobs Already Created Therefore, No Business Plan Submitted ***** ISSUES ON APPEAL LEADING TO DISMISSAL: A. Translations of Foreign Language Documents B. Lawful Source of Invested Funds C. Employment Creation at the NCE D. Commitment of Funds

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