Case 1:15-cv-00273-CKK Document 1-1 Filed 02/24/15 Page 1 of 15
DOES 1 - 42 v. UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES et al
Filed: February 27, 2015 as 1:2015cv00273
Plaintiff: JOHN DOES 1 - 42
Defendant: UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES , JEH CHARLES
JOHNSON , LEON RODRIGUEZ and others
Cause Of Action: Judicial Review of Agency Actions
Court: D.C. Circuit › District of Columbia › District Of Columbia District Court
Type: Other Statutes › Other Statutory Actions
Case 1:15-cv-00273-CKK Document 1-1 Filed 02/24/15 Page 2 of 15
U.S. Otpltrtmt:nl vf Homeland Sccuriry
U.S. Citizenship and Immigrati0£1Ser..ic::es
lmmigmm lnve:.tor Program
20 MassachuRen.c: Ave. NW. MS 2235
Washington. DC 20529-2090
Application: Form I-526
Your Form 1-fi!lfi, Tmmigranl;Pet.itiun by Alie n Entrepreneur, fi led by
rlenied fol' the following reason(s):
If you dt=!Rirfl to appeal Lhi~ decision, or file a motion to reopen and/or reconsider, you may do l:iO.
Your not.iee of appeal m· motion must be fllcd on Form H~90B, Notice of Appeal or Motion, wjthin
33 calendar days of the date of this notice. A filing fee of $630.00 is req uir ed, payable to V.S.
Department of Homeland Security, with a check or money order from a bank or other institution
located in the United States. If no appeal Ol' motion io filed within, the time allowed this decision
will be the final decision in this matter. The appeal or motion may notJ~...§J.~d directly with the
MQ~ Initi::~ l filing of lht! Form I·290B shou ld be sent to:
P.O. Box 21100
Phoenix, AZ 85036
(F or Postal Service Delivery)
users Attn: 290H
1820 K Skyharbor Circle S, Suite 100
Phoenix, A2 85034
(For Express Maili Courier)
In support ofyour appeal, you may submit, a brief andlor additional e-vidence, either with th e
initial filing or within :~o calendat days ofthe initial filing. If necessary, you may requeRt
a dditiona l t.ime t.o submit a brief. Such request must. also be made wi th in aocalendar days of
tiling. Note, however, that an extension oftimc to ftle the Appeal may not be gTanted. Any brief,
written statement, or ot he1· Cv'idcncc not filed with Form I-290B, or any requ~st ±or additional
time for the submission of a brief or othe1' material m ust be sent directly to the AAO at the
USCrS AdministJ'ative Appeals Office
U.S. Citizenship and Immigration Services
20 :1.assachw:st:ltt6 Avenue, NW, MS 2090
Washington, D.C. 20529-2090
Case 1:15-cv-00273-CKK Document 1-1 Filed 02/24/15 Page 3 of 15
Case 1:15-cv-00273-CKK Document 1-1 Filed 02/24/15 Page 4 of 15
NOTICE OF DECISION
Form I·526, Immigrant Petition by Alien Entrepreneur
Quartzhurg Gold LP
I. Procedural Histon
(Petitioner) filed a Fonn I-526, Immigrant Petition by Alien Entrepreneur, seeking
immigrant visa classification pursuant to section 203(b)(5) ofthe Immigration and Nationality Act (INA) on
August 30, 20 12.
Petitioner assens eligibility based on an investment in the Idaho State Regional Center (the ··Regional
Center'') pursuant to the Immigrant Investor Program' created by section 610 ofthe Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. No.
I02-395, 106 Stat. 1828 ( 1992), as amended by section 116 of Pub. L. No. I05-119, Ill Stat. 2440 (1997);
section 402 ofPub. L. No. 106-396, 114 Stat. 1637 (20()0); section 11037 ofPub. L. No. 107-273, I16 Stat.
1758 (2002); section 4 of Pub. L. No. I08-156, I I7 Stat. 1944 (2003); and se<:tion I of Pub. L. No. I I2-176,
I26 Stat. 1325 (2012).
This investment is located within a targeted employment area ("TF.A''). The evidence presented asserts
that the petitioner invested $500,000, on June 20, 20 l2, into Qmu1zburg Gold LP- the New Commercial
Enterprise (the "NCE"). TheNCE proposed to pool $80 million from 160 immigrant investors and lend
the entire amount to Idaho Slate Gold Company, which will in turn Joan the money to various mining
companies- the Job Creating Enterprises (the •'JCE"). The JCE inknds to mine gold in varkms areas of
Idaho and Montana. The NC.E and JCE are principa11y doing business within a targeted employment area
INA § 203(b)(5)(A) provides classification t.o qualified imrnigrnnts seeking lo enter the United States for the
purpose ofengaging in a new cornrncrcial enterprise (including a limited partnership)·
(i) in which such alien has invested (after the date ofthe enactment ofthe Immigration
Act of 1990) or, is actively in the process of investing, capital in an amount not less than
the flmount specified in subparagraph (C)2, and
1 On September 28, 20] 2, Pre~ident. Obama signed into law Senat.e bill S. 3245 which amended
section 610 of P.L. 102-395. S. 3245 struck the word "pilot" from section 610 of P.L. 102·395 and
extended the Immigrant Investor Program until Septembe1• 30, 2015.
~The amount of capitalrequil'ed .is $1,000,000, except when making an investment in a Largeted
employment area, the amount necessary to make a qualifying investment is $500,000. I::.J'A §
203(b)(5)(C)(i)- (ii); 8 C.F.R. § 204.6(0(1)- (2).
Attachment to Fo1·m I-292
Case 1:15-cv-00273-CKK Document 1-1 Filed 02/24/15 Page 5 of 15
(ii) which will benefit the United States economy and create full-time employment for
not fewer than I0 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).
In addition to the governing regulations, notably 8 C.F.R. § 204.6, legacy Immigration and Naturalization
Service (INS) published four precedent decisions regarding the EB-5 immigrant visa classification, namely:
Matter ofSoffici, 22 I&N Dec. 158 (Assoc. Comm'r 1998); Matter ofIzummi, 22 l&N Dec. 169 (Assoc.
Comm'r 1998); Matter ofHsiung, 22 l&N Dec. 20 I (Assoc. Comm'r 1998); and Matter ofHo, 22 l&N Dec.
206 (Assoc. Comm'r 1998).
Based upon a review ofthe initial record, Petitioner did not establish eligibility for the benefit sought.
Accordingly, U.S. Citizenship and Immigration Services (USCIS) issued a Notice of Intent to Deny (NOlO)
on September 19,2013. Subsequently, two Requests For Evidence (RFE's) were issued February 4, 2014,
and October 14, 2014. In the most recent RFE dated October 14, 2014, USCIS notified Petitioner that the
following eligibility requirements needed further clarification or additional evidence:
• Petitioner has Placed the Required Amount of Capital At Risk;
• Employment Creation I Comprehensive Business Plan. ; and
• Invested Capital Was Obtained Through Lawful Means;
On October 14, 2013, Petitioner responded to the NOlO with the submission of additional evidence. The
documents submitted in the response are as follows:
Copy of Remittance Application Form dated June 19,2012 submitted by Petitioner to Standard
Chartered Bank, instructing a withdrawal of$60,000 USD from Petitioner's account to Westlead
Capital Inc. as full payment ofthe processing fee;
Copy of Telegraphic Transfer Credit Advice dated June 19, 2012, evidencing receipt of
Letter to Petitioner from Westlead Capital Inc. principal Raymond Ku evidencing processing fee
has been paid in full.
As a supplement to the record, an interfiling dated January 19, 2015, was received and accepted by USCIS.
The interfiling requested consideration ofthe following documents:
Letter from Quartzburg Gold LP's General Partner, Sima Muroff, dated November 20, 2014,
advising all petitioners that the prohibited call option has been waived by the General Partner;
Letters signed by petitioner and other investors showing she was informed ofthe waiver of the
Attachment to Form I-292
IPO did not pursue the employment
creation-business plan issue or the
source of funds issue once the I-526
was deemed "not approvable" due to
the call option. There could be
further problems with the project.
Case 1:15-cv-00273-CKK Document 1-1 Filed 02/24/15 Page 6 of 15
call option, and accepted the new tenns;
I.ist ofall petitioners receiving the call option waiver letter, which includes- -
However, based on a review ofthe entire record ofproceeding (including the most recent RFE response and
interfiling), USCIS concludes that Petitioner has not established eligibility for the benefit sought. Therefore,
the petition is denied for the reasons discussed below.
1. Capital At Risk
Applicable regulations provide that, in order "[t]o show that the petitioner has invested or is actively in the
process of investing the required amount ofcapital, the petition must be accompanied by evidence that the
petitioner has placed the required amount ofcapital at risk for the purpose ofgenerating a return on the
capital placed at risk. Evidence ofmere intent to invest, or ofprospective investment arrangement"i entailing
no present commitment, will not suffice to show that the petitioner is actively in the process ofinvesting. The
alien must show actual commitment ofthe required amount ofcapital.'' 8 CF.R. § 204_6(j)(2)- For the
capital to be "at risk•' there must be a risk ofJoss and a chance fnr gain.
In order to demonstrate that Petitioner has placed such capital at risk for the purpose of generating a return,
Petitioner must first present evidence that he or she has made a qualifvinginvestment ofthe minimum
required amount o[capital. The regulations define "invesf' to mean a contribution ofcapital, but state that a
contribution ofcapital in exchange for a note, bond, convertible debt, obligation, or any other debt
arrangement betveen the alien entrepreneur and the new commercial enterprise, does not constitute a
contribution ofcapital, and thus, does not constitute a qualifying investment. 8 C.f.R. § 204.6(e).
a- Qualifying ConJrihutkm ofCupiJal
Under 8 C.F-R. §204.6(j)(2)(iv), in providing evidence that a petitioner has invested or is actively in the
process of investing the required amount ofcapital, a petitioner may provide "relvidence ofmonies
transferred or committed to be transferred to the new commercial enterprise in exchange for shares ofstock
(voting or nonvoting, common or prefened). Such stock may not include tenns requiring the new commercial
enterprise to redeem it at the holder's request''.
According to l11atter oflzummi, in the context ofa sell option, entering into a redemption agreement is, in
effect, entering into a debt arrangement and is prohibited by 8 C.F.R. § 204.6(e). 22 I&N Dec. at 188. "'For
the alien's money tmly to he at ..isk, the alien cannot enter into a partnership knowing that he already ha<; a
willing buyer in a certain number ofyears, nor can he he assured that he will ..eceive a certain price.
Olhcrwisc, the arrangement. is nothing more than a loan ...." ld at 186. Moreover, in no event may a
petitioner ~ntcr into such an agreement prior to the end orthe two·year period ofconditional residence. /d. at
l86. An investment assumes th~t risk exists; thus, tht: imrni&,sranl investor must go into the investment not.
knowing for sure ifhe or she will be able to sell his or her interest at all after ht: or she obtains his or her
unconditional permanent resident status, and ifhe or she is successful in sdling his or h~r interest, the salt.:
price may be disappointingly low or surprisingly high. ld at 186-187. This way. lhc immigrant invcsl.or
Attachment to Form I-292
Case 1:15-cv-00273-CKK Document 1-1 Filed 02/24/15 Page 7 of 15
risks both gain and loss. Id at 187.
A review of the documents showed that at the time of filing, the Petitioner had not shown, by a
preponderance of the evidence, that the capital invested was at risk due to the call option mentioned in the
Page 27 of the Confidential Private Offering Memorandum and Section 12. II of the Limited Partnership
Agreement contain a "call option" in which the Partnership can "repurchase the interest of a Limited
Partner for a purchase price of either (i) $550,000 in cash or (ii) 400 ounces of gold." A "call option" is
suggestive of a prohibited redemption mechanism whereby an issuer has the ability to ·'call" (redeem) the
covered securities in exchange for agreed upon consideration ($550,000 or 400 ounces of gold). This
·'call option'' can be more accurately characterized as a guaranteed return. Matter of Jzummi prohibits
redemption agreements and guaranteed returns.
Petitioner sought to retroactively remedy the filing by responding that all potentially problematic
references to a "call options" would be removed from the organizational documents. Each investor
received notification, and agreed to the new terms to remain subscribed in the project. The letter sent to
and accepted by petitioner showed that the Call Option (400oz gold or $550,000 cash) reference has been
removed from each pertinent agreement with the investor.
The letter stated, in part. on Page 2 of the letter sent to all investors by Sima Muroff, General Partner:
·'Section 12.11 (3) ofthe Limited Partnership Agreement stated that the General Partner has a "Call
Option" allowing it to choose to repay investors in gold rather than cash. Unfortunately USCIS
challenged this arrangement by claiming that it violated rules requiring capital to be "at risk" and
prohibiting repayment guarantees. For the project to be approved the General Partner has waived the
·'Call Option." Nevertheless, we intend to fulfill our commitments to our investors using a method that
fully complies with the EB-5 rules and regulations. In the latest RFE, USCIS has requested confirmation
from each investor of his or her acceptance of the General Partner's waiver of the Call Option, and we
attach a simple letter to that effect for you to sign, scan, and return by email to Jason Blatt at:
firstname.lastname@example.org for inter-filing with USCIS to be part ofthe RFE response."
2. Ineligible at time of filing
Although petitioner has sought to render this petition approvable by removal of the call option. "A
petitioner must establish eligibility at the time offiling; a petition cannot be approved at a future date after
the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49
(Comm. 1971 ). Therefore, a petitioner may not make material changes to a petition that has already been
filed in an effort to make an apparently deficient petition conform to Service requirements." Matter of
Izummi, 22 l&N Dec. 169, 175 (Assoc. Comm'r I998); see also 8 C.F.R. § I03.2(b)(J).
In summary, USCIS concludes that Petitioner has failed to establish by a preponderance ofthe evidence that
the Form l-526 complies with applicable legal requirements. Consequently, USCIS has determined, based on
the initial evidence submitted upon filing and after consideration ofall additional evidence submitted in
response to the NOID dated September I9, 2013, as well as the interfiling dated January I9, 20 I5, that
Attachment to Form I-292
Case 1:15-cv-00273-CKK Document 1-1 Filed 02/24/15 Page 8 of 15
Petitioner is ineligible for classification under INA§ 203(b)(5)(A).
In visa petition proceedings, Petitioner bears the burden of establishing eligibility for the benefit sought. See
Matter ofBrantigan, II I&N Dec. 493 (BIA 1966). As Petitioner has not satisfied her burden ofestablishing
eligibility, the Fonn 1-526 is denied.
If Petitioner disagrees with this decision, or if Petitioner has additional evidence that shows this decision is
incon-ect, Petitioner may file a motion or an appeal to this decision by filing a completed Fonn 1-290B,
Notice of Appeal or Motion, along with the appropriate filing fee. A copy is enclosed. Petitioner may also
include a brief or other written statement and additional evidence in support ofthe motion or appeal. The
Fonn I-290B must be filed within 33 days from the date ofthis notice. If a motion or appeal is not filed
within 33 days, this decision is final.
Petitioner must send the completed Fonn 1-290B and supporting documentation with the appropriate filing
P.O. Box 660168
Dallas, TX 75266
For an appeal, Petitioner may request additional time to submit a brief within 30 calendar days of filing the
appeal. Any brief, written statement, or evidence in support ofan appeal that is not filed with Fonn l-290B
must be directly sent within 30 days of filing the appeal to:
Administrative Appeals Office (AAO)
20 Massachusetts Ave., N.W., MS 2090
Washington, DC 20529-2090
For more infonnation about the filing requirements for appeals and motions, please see 8 C.F.R. § I03.3 or
103.5, or visit the USCJS website at W.uscis.gO.
Attachment to Form I-292