U.S. Departmeot of Homeland Security U.S. Citizenship and Immigration Services Ofice Washington, of Administrative Appeals, MS 2090DC 20529-2090U.S. Citizenshipand Immigration FLLE: WAC 09 007 5 15 16 Office: CALIFORNIA SERVICE CENTER Date: S E 3~ 1 2 010IN RE: Petitioner: PETITION: Immigrant Petition by Alien Entrepreneur Pursuant to Section 203@)(5) of the Immigration and Nationality Act, ON BEHALF OF PETITIONER: INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. submitted to the office that orignally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of within 30 days of the decision that the motion seeks to reconsider or reopen. Thank you, 8 U.S.C. 5 1153(b)(5)$ 103.5. All motions must be$585. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed4 Perry Rhew wChief, Administrative Appeals Office WAC09007 51516 Page 2DISCUSSION: now before the Administrative Appeals Office (AAO) on certification pursuant to The director's ultimate conclusion that the petition is not approvable will be affirmed. The petitioner seeks classification as Immigration and Nationality Act (the Act), 8 U.S.C. based on Act, 1993, Pub. L. 102-395 (1993) as amended by section 402 of the Visa Waiver Permanent Program Act, 2000, Pub. Job Fund (CARc), was designated as a regional center by U.S. Citizenship and Immigration Services (USCIS) on November 25, 2005. On May 20, 2008, USCIS issued an e-mail acknowledging that CARc had obtained a new escrow agent and had a new address. Subsequently, aliens began filing Form 1-526 petitions based on an investment in CARc. These petitions were supported amended agreements fi-om those submitted with the original regional center proposal in 2005. The Form 1-526s petitions did not disclose that these agreements had been amended fiom the 2005 agreements. In response to concerns raised by the Director, Texas Service Center (TSC), confirmed by the approved. The CSC director approved a June 2009 amendment request on December 23,2009. The director determined that the petitioner had filed to demonstrate that the original business plan and projections continued to be viable. The director also determined that the petitioner had not established the lawful source of hls h d s . The director certified the notice of denial to the AAO pursuant to 8 C.F.R. 103.4. notice to the petitioner, through counsel, and advised that a The Director, California Service Center, denied the preference visa petition, which is8 C.F.R. $ 103.4.an alien entrepreneur pursuant to section 203(b)(5) of the9 1153(b)(5). The petitioner claims eligibilityan investment in a regional center pursuant to section 610 of the Judiciary AppropriationsL. 106-396 (2000). The regional center, the Capital Area Regional Centerby substantiallyAAO on certification, CARc sought an amendment of the proposal in March 2009, which wasIn compliance with the regulation at 8 C.F.R. 4 103.4(a)(2), the director providedbrief could be submitted directly to theAAO within 30 days.In is seelung a second approved amendment to the regional center proposal that will include the regional center's current business plan. The director approved the amendment request on December 23, 2009. Significantly, the director advised: "This project approval in conjunction with the most recent approved general proposal amendment will allow current investors in this project to proceed with refiling their respective Fonns 1-526, Immigration Petitions by Alien Entrepreneurs with the appropriate fee." Counsel submits brief and several exhibits, most of which relate to agreements that postdate the filing of the petition. Counsel further asserts that the director erred in concluding that the petitioner had not established the lawful source response, counsel, through the submission of a brief b y asserts that the regional centerof his funds.An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 Cal. 2001), afd, 345 F.3d 683 (91h Cir. 2003); see also Soltune 2004) (noting that the F. Supp. 2d 1025, 1043 (E.D.v. DOJ, 38 1 F.3d 143, 145 (3d Cir.AAO conducts appellate review on a de novo basis).WAC 09 007 51516Page 3On c e r t i f i c a t i o n , acknowledges the AAOYs reason to create new issues here, and if that were to happen the investors should receive prior notice of issues to address [the] AAO, since the certification decisions did not project a need to address such issues." While USCIS is required to give notice of derogatory information unbeknownst to the petitioner, 8 C.F.R. Intent to Deny prior to issuance of a decision at the Service Center or for the AAO to do so while a case is on certification. Our major concern with the favorable findings by the director is that they are in contravention of binding regulations and longstanding precedent and federal court decisions holding that a petition must be approvable when filed. I&N Dec. 158, 160 (Reg'l. Cornrn'r. 1977); 1971). Ultimately, in order to be meritorious in fact, a petition must meet the statutory and regulatory requirements for approval as of the date it was filed. 261 de novo review, but states that "there is no5 103.2(b)(16)(i), there is no requirement for USCIS to issue either a Notice ofSee 8 C.F.R. $5 103.2(b)(l), (12); Matter of Wing's Tea House, 16Matter of Katigbak, 14 I&N Dec. 45,49 (Reg'l. Cornrn'r.Ogundipe v. Mukasey, 541 F.3d 257,(4th Cir. 2008). Specifically in the context of a Form 1-526 petition, the AAO stated in aprecedent decision that 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 USCIS requirements. Matter of Izurnrni, 22 I&N Dec. 169, 175 (Cornm'r. 1998). That decision hrther provides, citingMatter of Bardouille, being only subsequent to the filing of a petition." r e f e r e n c e s an AAO decision on a previous Form 1-526 petition involving a CARc investor. In that decision, we held that amendments to agreements or business plans that postdate the filing of the petition would not be considered. Thus, is aware that this office has consistently conformed to the requirement that a petition must be approvable when filed and that material changes that postdate the filing of the petition will not be considered. The regional center's decision to continue to pursue these petitions while simultaneously seeking on amendments upon amendments, sometimes submitted to USCIS outside the adjudicative process through 18 I&N Dec. 114 (BIA 1981), that we cannot "consider facts that come intoId. at 176.ex partecomrnunications, does not diminish the binding nature of the regulation and precedent and federal court decisions cited above. Thus, we continue to hold that the petitioner must establish his eligibility contrary. We also uphold the director's concerns regarding the viability of the original business plan presented. Finally, while CARc has now obtained a license to export services to Iranian investors, that license does not appear to cover transfers of funds directly or indirectly from prohibited banks in Iran and does not cover any transactions before the license was issued. Finally, beyond the decision of the director, the petitioner has not traced the source of his funds through the entire path described by counsel. Section 203(b)(5)(A) of the Act, as amended by the Appropriations Authorization Act, Pub. classification to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise: as of the date of filing and withdraw any inference in the director's decision to the21St Century Department of JusticeL. No. 107-273, 1 16 Stat. 1758 (2002), providesWAC 09 007 51516 Page 4 (i) in which such alien has invested (after the date of the enactment of the 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 As will be discussed in more detail below, an investment must consist of capital placed at risk for the purpose of generating a return, 8 closely responsible for crating the employment upon which the petition is based. than the immigrant and the immigrant's spouse, sons, or daughters).C.F.R. 5 204.66)(2), and must be made available to the business mostMatfer of hummi, 22I&N Dec. at 179. The record indicates that the petition is based on (the Fund) which proposes to-invest in a project located in CARc, a designated regional center pursuit to section 610 of the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act, 1993 as amended by section 402 of the Visa Waiver Pennanent Program Act, 2000. The regulation at provided herein, aliens seeking to obtain immigration benefits under this paragraph continue to be subject to all conditions and restrictions set forth regulation at petitioner asserts that the new commercial enterprise will invest in the renovation of the Watergate Hotel. The director did not contest that the investment will be in a targeted employment area (TEA). Thus, the required investment amount in this matter is $500,000.' an investment in a bu si,n-ess,8 C.F.R. tj 204.6(m)(l) provides, in pertinent part: "Except asin section 203(b)(5) of the Act and this section." The8 C.F.R 4 204.6(m)(7) allows an alien to demonstrate job creation indirectly. ThePROCEDURAL HISTORYThe petitioner filed the instant petition on October 9, 2008. Thus, establish Dec. at 49. The petitioner is a member of the Fund and proposes to invest as stated above, the petitioner musthis eligibility as of that date. See 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I&Nin CARc, which proposes toI unemployment in relation to the national unemployment rate. The director's conclusion that the investment will be within a targeted employment area is based on a designation by f o r Planning and Economic Development, Washington, D.C. pursuant to 8 C.F.R. The proposed investment will be wholly and entirely within Ward 2, a ward that is not itself suffering hig |
声明： 本网站仅作一般参考之用。这并不代表要约或招揽购买出售任何证券。 本网站新闻部分，文章内容援引、转载自其他媒体新闻，所有相关新闻内容，不代表本网立场。
扫一扫
获取一手资讯
