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The Case of the Persistent Pizzeria

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Do you think that a pizzeria in Jacksonville, FL truly needs a "multinational executive or manager" to come from malaysia to run it? Read all about "Big Pete's", the persistent pizzeria!

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The Case of the Persistent Pizzeria

  1. 1. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 1 The Case of the Persistent PizzeriaBy Joseph P. Whalen (January 12, 2015) I want to begin this journey by asking the reader to ponder a question as (s)he progresses through this essay and these cases. Do you honestly believe that a single pizzeria in Jacksonville, FL could ever possibly need a “multinational executive or manager” to come from Malaysia to run it? That is the position of the beneficiary who is also the self-petitioner through his 51% ownership of the petitioning business in this long drawn-out case. Abroad, the foreign company owns and operates one restaurant and one corporate cafeteria. With the addition of “Big Pete’s” (the Jacksonville pizzeria) these companies, i.e., the beneficiary/self-petitioner, now has three small businesses under his ownership and control. The first two are in Penang, Malaysia. You could call me skeptical, and you’d be right! Apparently, I am not the only one who is skeptical. The Nebraska Service Center issued the initial denial in 2007, AAO dismissed the appeal in 2008, rejected the first I-290B Motion Form on technical grounds in 2009, but later dismissed two Motions to Reopen and Reconsider (MTRRs) in 2010, and 2012, respectively. Lastly, in 2014, U.S. District Court Judge Marcia Morales Howard of the Middle District of Florida (Jacksonville Division) also found the request for a visa for a multinational executive or manager had been properly denied. She found that USCIS and AAO in particular had considered all the evidence and had made fully justified decisions. There was no abuse of discretion, error as to facts, or misapplication of law.
  2. 2. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 2 HYPERLINK COMMENTS/EXCERPTS/HOLDING December 26, 2007 Initial Denial Decision Not Available. Dec192008_03B4203.pdf “The petitioner is a Florida corporation that owns and operates a restaurant. The petitioner seeks to employ the beneficiary as its president. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. The director denied the petition based on two independent grounds of ineligibility. The director concluded that: 1) the petitioner failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity.” *********** “The petitioner also provided its restaurant's weekly five-day schedule showing how the restaurant was staffed from Monday through Friday during a three-week period in August 2007. It is noted that the Form I-140 in the present matter was filed on October 25, 2006, or nearly 10 months prior to the dates on the schedule provided by the petitioner. The petitioner did not provide a schedule reflecting its
  3. 3. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 3 HYPERLINK COMMENTS/EXCERPTS/HOLDING staffing and scheduling practices at the time the petition was filed. Furthermore, the schedule that the petitioner did provide does not include Saturday, even though the brochure advertising the restaurant's services and hours of operation clearly shows that the restaurant is open for business on Saturdays from 4 p.m. until 10 p.m. In a decision dated December 26, 2007, the director denied the petition. With regard to the beneficiary's foreign employment, the director noted a discrepancy between the number of employees claimed and the number of positions listed in the payroll documents provided in support of the petition. The director also noted that the petitioner failed to explain who performed the foreign entity's purchasing, marketing, and accounting duties, indicating that without further information the beneficiary was the person most likely to have performed the duties associated with those functions. With regard to the beneficiary's proposed position with the U.S. entity, the director found that while the petitioner clearly defined the degree of the beneficiary's discretionary authority, it failed to specify the actual job duties the beneficiary would perform. Rather, the director found the proposed
  4. 4. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 4 HYPERLINK COMMENTS/EXCERPTS/HOLDING job description to be vague, failing to establish which specific duties could be deemed managerial and which could be deemed executive. Here as well the director found that the petitioner did not identify who would be responsible for purchasing, marketing, and handling the restaurant's daily financial transactions. The director also noted the two different fliers advertising the petitioner's restaurant, pointing out that the fliers were inconsistent with regard to the restaurant's days and hours of operation. Lastly, the director made note that ten employees were listed in the restaurant's August 2007 schedule, while only four W-2 statements were issued in 2005 (aside from the one issued to the beneficiary during that year), thus indicating that the number of employees the petitioner had at the time of filing is unclear as the petitioner did not explain or address any changes in its staffing. In discussing the 2005 W-2 statements, the director noted that all four employees were paid the exact same salaries. The AAO finds this detail particularly troublesome when taking into account that the restaurant employees are paid hourly wages rather than flat salaries and are not likely to work the exact same number of hours with identical wages earned for all employees.”
  5. 5. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 5 HYPERLINK COMMENTS/EXCERPTS/HOLDING (C) The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas; and “Furthermore, the record does not support a finding of eligibility based on at least one additional ground that was not previously addressed in the director's decision. Specifically, contrary to the director's finding, the AAO is not satisfied that the evidence of the petitioner's ownership as submitted thus far is sufficient to meet the requirement in 8 C.F.R. 204.5(j)(3)(i)(C), which states that the petitioner must establish that it has a qualifying relationship with the beneficiary's foreign employer. In the present matter, the petitioner initially provided its articles of incorporation in which Article Four stated that the U.S. entity is authorized to issue up to 50,000 shares of its stock. The stock certificate that accompanied the articles of incorporation conveyed the same information and further showed that the petitioner issued 25,500 shares of its stock, or 51%, to the foreign entity. Although both documents are dated in 2004, it is noted that Schedule L of the petitioner's 2005 tax return does not show that the petitioner received any monetary compensation in exchange for its issuance of stock.” May062010_01B4203.pdf “DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The petitioner appealed the matter to the
  6. 6. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 6 HYPERLINK COMMENTS/EXCERPTS/HOLDING Administrative Appeals Office (AAO). The appeal was dismissed. The matter is now before the AAO on motion to reopen and reconsider. The motion will be dismissed.” At p. 2 *********** “On appeal, the petitioner's prior counsel disputed the director's conclusions and submitted a brief and additional documents, which were reviewed by the AAO prior to its decision. The AAO dismissed the appeal, concluding that the petitioner failed to furnish adequate job descriptions specifying the actual tasks the beneficiary performed during his employment abroad and the tasks he would perform in his proposed position with the U.S. entity. The AAO also issued one additional finding beyond the director's decision, concluding that the petitioner failed to provide sufficient evidence to show that it has established a qualifying relationship with the beneficiary's foreign employer. Specifically, the AAO observed that Schedule L of the petitioner's 2005 tax return did not show that the petitioner had been compensated for the stock it purportedly issued in 2004. The AAO further commented on the information provided by the petitioner in response to the director's request for additional evidence, noting that the petitioner's articles of incorporation, which showed that the
  7. 7. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 7 HYPERLINK COMMENTS/EXCERPTS/HOLDING petitioner was authorized to issue 50,000 shares of stock, was inconsistent with the petitioner's stock certificate no. 5, which indicated that a total of only 1,000 shares were authorized to be issued.” *********** “…. In the present matter, while the petitioner provided a purchase document for Big Pete's Pizzeria, the document shows the beneficiary rather than the foreign entity as the buyer of the restaurant. While counsel asserts that the foreign entity gave the beneficiary money specifically to make the purchase at the foreign entity's request, this claim is not documented with independent objective evidence. See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). …[R]egardless of the foreign entity's intent to allot money for the purchase of the restaurant, the fact remains that the record lacks evidence to establish that the foreign entity compensated the petitioner for the petitioner's issuance of stock. The regulation and case law confirm that ownership and control are the factors that must be examined in determining whether a qualifying relationship exists…” [Emphases added.]
  8. 8. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 8 HYPERLINK COMMENTS/EXCERPTS/HOLDING Apr272012_02B4203.pdf “DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The petitioner appealed the matter to the Administrative Appeals Office (AAO). The appeal was dismissed. The AAO's adverse decision prompted the petitioner to file a motion to reopen and reconsider, which the AAO also dismissed. The matter is now before the AAO on a second motion to reopen and reconsider. This motion will be dismissed.” *********** “On appeal, the petitioner's prior counsel disputed the director's conclusions and submitted a brief and additional documents, which the AAO considered prior to dismissing the appeal. The AAO concluded that the petitioner failed to overcome either of the two grounds cited in the director's decision and also issued an additional finding beyond the director's decision, concluding that the petitioner failed to provide sufficient evidence to show that it has a qualifying relationship with the beneficiary's foreign employer. The AAO pointed to an inconsistency between the petitioner's articles of incorporation, which showed that the petitioner was authorized to issue 50,000 shares of stock, and the petitioner's stock certificate no. 5, which indicated that a total of only 1,000 shares were authorized to be issued.
  9. 9. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 9 HYPERLINK COMMENTS/EXCERPTS/HOLDING The AAO also observed that Schedule L of the petitioner's 2005 tax return lacked any indication that the petitioner had been compensated for the stock it claims to have issued in 2004. On first motion, the petitioner's new counsel submitted a brief in which he referred to purchase documents, which he offered as evidence of the foreign entity's purchase of the U. S. restaurant. Counsel claimed that the stock sale was not reflected in the petitioner's 2005 tax return because the foreign entity's funds were used to purchase the restaurant rather than the petitioner's stock. The AAO found that counsel's statements were not persuasive as the assertions put forth were not supported by documentary evidence. ….” *********** “The AAO again finds that counsel's assertions do not meet the requirements of a motion to reopen and reconsider.” Tsiva, Inc. et al v. Attorney General, Department of Justice et al., Case No. 3:12-cv- 631-J-34PDB (M.D. FL (Jacksonville Division) November 24, 2014) “…Tsiva ask[ed] the Court to “[c]onduct such hearings and examinations of Plaintiffs as necessary to adjudicate the Form I-140 Petition for Alien Worker,” and to declare as unlawful, arbitrary and capricious, an abuse of discretion, and not in accordance with the law, the USCIS’s
  10. 10. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 10 HYPERLINK COMMENTS/EXCERPTS/HOLDING denial of Tsiva’s Form I-140 petition and the AAO’s denial of Tsiva’s subsequent appeal and motions to reopen and reconsider. Id. at 18-19. Tsiva also seeks an award of attorneys’ fees and costs. Id. at 19.” At p. 4 *********** “Accordingly, the record reflects that the AAO considered each piece of evidence submitted by Tsiva but ultimately determined that in light of the manifest inconsistencies and lack of independent, objective evidence, Tsiva failed to establish the requisite ownership and control of Tsiva by Khesmir. Tsiva has failed to demonstrate that the agency abused its discretion or that the decision to deny the visa petition was arbitrarily or capriciously made. Because the record does not disclose a material fact issue on either grounds for denial of the visa petition, Defendants are entitled to summary judgment. In light of the foregoing, it is hereby ORDERED: 1. Plaintiffs’ Motion for Summary Judgment and Memorandum in Support of Motion (Doc. 9) is DENIED. 2. Defendants’ Cross Motion for Summary Judgment (Doc. 10) is GRANTED.
  11. 11. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 11 HYPERLINK COMMENTS/EXCERPTS/HOLDING 3. The Clerk of Court is directed to enter JUDGMENT in favor of Defendants Attorney General, Department of Justice, et. al., and against Plaintiffs Tsiva, Inc., et. al. 4. The Clerk of Court is further directed to terminate any pending motions and deadlines as moot and close the file. DONE AND ORDERED in Jacksonville, Florida, this 24th day of November, 2014.” At pp. 26-27 Hopefully, dear reader, you have read this piece online and followed the links provided above. These mere highlights do not tell the whole story. I encourage you to explore the cited cases within these various decisions and please continue to explore various administrative cases found on the internet. For example, there are the non-precedent AAO administrative decisions found here.1 Also please explore some unpublished BIA decisions found here.2 Of course the official I&N Precedent decisions are found here.3 Just for some fun, you can also explore BALCA Decisions, here.4 Last but not least, justia.com5 allows you to get some court decisions free of charge and you can narrow your search to only those with free downloadable decisions. Good luck and keep on reading. 1 http://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-office-aao/aao-non-precedent-decisions 2 http://www.irac.net/unpublished/ 3 http://www.justice.gov/eoir/vll/libindex.html 4 http://www.oalj.dol.gov/libina.htm 5 http://dockets.justia.com/search?parties=uscis&cases=mostrecent
  12. 12. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 12 Short Bio & Disclaimer I tell you what you NEED to hear, not what you WANT to hear! Joseph P. Whalen Independent EB-5 Consultant, EB-5 Advocate, Mentor, Trainer and Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 (cell) or (716) 768-6506 (home, land-line) E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: The opinions expressed in my training are those of me only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non-accountant, non-FINRA or SEC registered broker or adviser. Any information or consultation that seems like “incidental investment advice” is intended merely as educational, coaching, and mentoring6. Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS’ EB-5 Program, especially that portion dealing with Regional Centers. I wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I-924 Form Instructions. I am an outspoken advocate for improved adjudications at USCIS. Lastly, I have been published in various immigration law outlets with well over 125 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in the most recent. Please click the hyperlinks above and explore my writings. Training is available for any subject under immigration and nationality law. NAICS Code: 611430 Professional and Management Development Training 2012 NAICS Definition: 611430 Professional and Management Development Training This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers. Instruction may be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods. That’s My Two-Cents, For Now! 6 See: 15 U.S.C. §80b–2. (a)(11) or go to: http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b- 2%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section80b-2)&f=treesort&edition=prelim&num=0&jumpTo=true

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