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WEDNESDAY, MAY 25, 2016 1
More AAO Dismissals of Regional Center Affiliated
& EB-5 Direct I-526 Immigrant Investor Petitio...
WEDNESDAY, MAY 25, 2016 2
generating a return. See Izummi, 22 I&N Dec. at 184-85 n. 16 (noting that for the capital to be ...
WEDNESDAY, MAY 25, 2016 3
Matter of Z-W-, ID# 16204 (AAO May 10, 2016)
“The record supports the Chief’s findings that the ...
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More AAO Dismissals of Regional Center Affiliated & EB-5 Direct I-526 Immigrant Investor Petitions

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More AAO Dismissals of Regional Center Affiliated & EB-5 Direct I-526 Immigrant Investor Petitions

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More AAO Dismissals of Regional Center Affiliated & EB-5 Direct I-526 Immigrant Investor Petitions

  1. 1. WEDNESDAY, MAY 25, 2016 1 More AAO Dismissals of Regional Center Affiliated & EB-5 Direct I-526 Immigrant Investor Petitions 12 RC-affiliated investors sunk $60 million into Crenshaw Community Hospital (CCH); established in 1963, in Alabama Matter of W-G-, ID# 16373 (AAO May 11, 2016)1 “The Chief, Immigrant Investor Program Office, denied the petition. The Chief concluded that the Petitioner had not met the necessary job creation requirements, in part because the Petitioner had not shown that the job creating entity was a troubled business such that the Petitioner could rely on job preservation. Subsequently, the Chief denied the Petitioner’s motion to reopen finding that the commercial enterprise in which the Petitioner invested did not qualify under the regulatory definition of “new” and that the Petitioner had not placed her funds at risk for the purpose of generating a return.” “Under 8 C.F.R. § 204.6(h)(1), the establishment of a new commercial enterprise, among other methods, may consist of the “creation of an original business.'' … [REDACTED] is a for-profit and original business, formed in September 2012 and the entity to which the Petitioner wired $540.000 on May 13, 2013. …….. [REDACTED], therefore constitutes a new commercial enterprise under the Act and the relevant regulations. Accordingly, the Chief’s finding that [REDACTED] was not a new commercial enterprise is withdrawn.” “A March 1, 2013, document entitled "Equity Investment Agreement, [REDACTED] and [REDACTED] provides that [REDACTED] will invest up to $6,000,000 in exchange for a 24 percent interest in [REDACTED] plus a six percent preferred rate of return on the capital account or an annual preferred return of $360,000 to be shared among the 12 limited partners within [REDACTED]. The Petitioner, however, has not shown when or if the hospital will have funds to distribute any return, because she has not accounted for other expenses associated with the partnership, such as payments on the current liabilities. Specifically, she has not demonstrated that the pro forma income statements reflect the true financial status of the hospital for the relevant years given that the increase in operating expenses do not cover the increase in current liabilities. As the Petitioner has not presented a comprehensive analysis of the potential net profit available for distribution to [REDACTED] and to each of the 12 [REDACTED] limited partners, she has not sufficiently established that there is a reasonable chance for gain, especially within the foreseeable future. Accordingly, she has not proven that she has placed her funds at risk for the purpose of 1 A (pointless) Complaint was filed as: Gan et al. v. DHS et. al., No. 16-cv-00711-RMC (D.DC April 14, 2016)
  2. 2. WEDNESDAY, MAY 25, 2016 2 generating a return. See Izummi, 22 I&N Dec. at 184-85 n. 16 (noting that for the capital to be “at risk” there must be a risk of loss and a chance for gain).” Two Power Plants (CA & NV) [180 Investors, $90 million] Matter of E-L-, ID# 16376 (AAO May 11, 2016) “The Chief, Immigrant Investor Program Office (IPO), denied the petition. The Chief concluded that the Petitioner did not show he made an at-risk investment.” This non-precedent decision specifically cites to United States v. O'Connor, 158 F. Supp. 2d 697 (E.D. VA 2001)2 for the proposition “that if a petitioner invested loan proceeds, he or she must show "that the debt is secured by the assets of the [petitioner], not of the commercial enterprise in which he or she is investing," and "that [he or she] is personally and primarily liable for the debt.'' 158 F. Supp. 2d 697, 704-05 (E.D. Va. 2001) (citing 8 C.F.R. § 204.6(e)).” Additionally, AAO noted that like “the O'Connor case involved third- party loans from a company that was related to the NCE, and the investors' personal assets did not secure the loans. See id. at 705-06. In short, the Petitioner has not established that the Chief retroactively applied a "new rule'' in this case. In addition, as discussed below, the Petitioner has not shown he has made an at-risk investment.” E-L-, at pp. 3-4. Matter of Y-L-, ID# 16384 (AAO May 10, 2016) “The Chief, Immigrant Investor Program Office, denied the petition. Specifically, the Chief found that the Petitioner had not placed the required amount of capital at risk in the NCE.” This EB-5 Direct investment petition was so sloppy at time of filing that it required such sweeping and significant corrections after filing in so many aspects that it was riddled with impermissible material changes simply to come close to reaching compliance that it could not be perfected. It could not be saved. The petitioner filed prematurely and unwisely. I could not decipher the exact nature of the purported new commercial enterprise beyond an alleged “retail business” of some sort. 2 http://law.justia.com/cases/federal/district-courts/FSupp2/158/697/2415132/
  3. 3. WEDNESDAY, MAY 25, 2016 3 Matter of Z-W-, ID# 16204 (AAO May 10, 2016) “The record supports the Chief’s findings that the Petitioner has not demonstrated the lawful source of the funds she wired to the NCE, and that the Business Plan and the “Supplements to the Business Plan of [the NCE] are insufficient to show that the NCE meets the job creation requirements. In addition, the Petitioner has not established that at the time she filed the petition, she placed at least $1,000,000 at risk for the purpose of generating a return.” “…The Petitioner submitted statements from 21 individuals affirming that they received from the Petitioner approximately 300,000 RMB each between March 15, 2012, and March 22, 2012, and that they then transferred those funds to either the Petitioner's [REDACTED] account or that of [REDACTED].” “… she did not corroborate the path of funds between her RMB account that received the dividends [and then] to these individuals. Notably, the statement for the Petitioner's RMB account shows only two debits in amounts around 300,000 RMB between those dates in March 2012.” This business venture alleged to involve importing batteries from China and exporting wine from the United States. It leaves something to be desired as a business venture but the death knell was the failure to substantiate the investment of the full minimum required investment amount or a credible plan to create ten jobs. Matter of T-Z-, ID# 14645 (AAO May 5, 2016) Third Motion Denied. Finding of material misrepresentation remains unchanged.

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