AAO Decisions
Note: All non-precedent AAO decisions are published at uscis.gov.
| Regional Center | Investment | AAO’s Summary of Key Issues | ||
| I-526 | ||||
| American Export Partners, LLC Matter of Izummi |
The capital provided by the alien investors to AELP is used to purchase stock in a credit company, and the credit company uses this money to secure loans from an institutional bank lender. The credit company makes asset-based loans and engages in receivables financing for small export companies “located throughout South Carolina and the southeastern United States.” | “(1) Regardless of its location, a new commercial enterprise that is engaged directly or indirectly in lending money to job-creating businesses may only lend money to businesses located within targeted areas in order for a petitioner to be eligible for the reduced minimum capital requirement. (2) Under the Immigrant Investor Pilot Program, if a new commercial enterprise is engaged directly or indirectly in lending money to job-creating businesses, such job-creating businesses must all be located within the geographic limits of the regional center. The location of the new commercial enterprise is not controlling. (3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements. (4) If the new commercial enterprise is a holding company, the full requisite amount of capital must be made available to the business(es) most closely responsible for creating the employment on which the petition is based. (5) An alien may not receive guaranteed payments from a new commercial enterprise while he owes money to the new commercial enterprise. (6) An alien may not enter into a redemption agreement with the new commercial enterprise at any time prior to completing all of his cash payments under a promissory note. In no event may the alien enter into a redemption agreement prior to the end of the two-year period of conditional residence. (7) A redemption agreement between an alien investor and the new commercial enterprise constitutes a debt arrangement and is prohibited under 8 C.F.R. § 204.6(e). (8) Reserve funds that are not made available for purposes of job creation cannot be considered capital placed at risk for the purpose of generating a return on the capital being placed at risk. (9) The Service does not pre-adjudicate immigrant-investor petitions; each petition must be adjudicated on its own merits. (10) Under 8 C.F.R. § 204.6(e), all capital must be valued at fair market value in United States dollars, including promissory notes used as capital. In determining the fair market value of a promissory note, it is necessary to consider, among other things, present value. (11) Under certain circumstances, a promissory note that does not itself constitute capital may constitute evidence that the alien is “in the process of investing” other capital, such as cash. In such a case, the petitioner must substantially complete payments on the promissory note prior to the end of the two-year conditional period. (12) Whether the promissory note constitutes capital or is simply evidence that the alien is in the process of investing other capital, nearly all of the money due under the promissory note must be payable within two years, without provisions for extensions. (13) In order for a petitioner to be considered to have established an original business, he must have had a hand in its actual creation.” | ||
| Capital Area Regional Center Job Fund (CARc) Feb182010_01B7203.pdf Sep212010_01B7203.pdf | Invest in renovation of the Watergate hotel | “The I-526 petitions were supported by substantially amended agreements from those submitted with the original regional center proposal in 2005. The Form 1-526s petitions did not disclose that these agreements had been amended from the 2005 agreements.The director determined that the petitioner had filed to demonstrate that the original business plan and projections continued to be viable.” (See also my blog post on this case.) | ||
| I-829 | ||||
| Philadelphia Industrial Development Corporation (PIDC) Apr232010_01B7203.pdf | Formed to invest in Tommy D’s Home Improvement, Inc., a discount seller of close-out or discounted building materials used for home improvement; changed to invest in Butcher & Singer project, to develop a new restaurant (PIDC Regional Center LP VI) | “The ultimate issues in this matter are (1) whether the petitioner could withdraw his investment in the regional center project reviewed when the petitioner was granted conditional residence and reinvest in an unrelated project without USCIS review or approval (2) whether the new investment is within a targeted employment area and, thus, eligible for a reduced investment amount and (3) whether the new investment demonstrates how the regional center’s bridge loan allows the petitioner to be credited with the statutorily required job creation.” | ||
| South Dakota International Business Institute (SDIBI), Dairy Economic Development Region (DEDR) Apr142011_01B7203.pdf | Invest in dairy farm (Winter Dairy LLP) | “The petitioner has failed to establish that it employed the requisite number of qualifying direct employees.The petitioner has failed to establish that it may apply the multiplier to non-qualifying direct jobs in order to create indirect jobs.The petitioner has willfully misrepresented evidence in an effort to mislead USCIS and the AAO on an element material to his eligibility” | ||
| I-924 | ||||
| Coastal Washington International Investment Company, Inc. Nov182008_01K1610.pdf | The center proposed to cover several counties in Washington State and invest in activities that would “range from commercial real estate development to infrastructure/development financing for local utilities . . . from regional transportation to retail shops.” | “The bases of denial included: (1) the appellant’s failure to demonstrate that it existed; (2) the area where the investments would take place was not documented as a qualifying rural area as defined at 8 C.F.R. § 204.6(e); (3) the vagueness of the appellant’s business purposes due to the lack of identified investment targets (businesses) and evidence that these targets would participate; (4) the absence of evidence that the promissory notes available to participating aliens would be qualifying under the reasoning set forth in Matter of lzummi, 22 I&N Dec. 169, 19 1 (Cornm. 1998); (5) the lack of economic analysis and forecasting tools in support of the investments proposed; (6) the failure of the draft partnership agreement to address escrow accounts and how capital would be at risk; and (7) the failure to provide bylaws, operating agreements, offering memoranda or a breakdown of the $18,500 administrative fee.” | ||
| Dec222009_01K1610.pdf | The center proposed to cover 14 counties in Maryland and invest in 11 types of projects: office buildings, lab sciences research space, biotechnology manufacturing, retail stores, restaurants, owner occupied and rental residences, hotels and short-term condominium rentals, recreational and sports activities, sports complexes, a bus station and parking garages. | “In summary, we uphold the director’s findings that a business plan and a marketing plan are required evidence at the regional center proposal stage and that the applicant failed to provide this evidence in response to the director’s specific request for such documents. Moreover, even if we were to consider the business plan submitted on certification, there are serious deficiencies that would need to be resolved prior to approval of a regional center proposal. Finally, while not raised by the director, the TEA designation does not comply with the regulatory requirements for a state designation. For the above stated reasons, considered both in sum and as separate grounds for denial, the proposal may not be approved.” | ||
| Apr262011_01K1610 | The decision affirms denial of a Regional Center application filed on behalf of The Statesman Group and its Pleasant Harbor Marina and Golf Resort project in the North Olympic Peninsula in Washington State. | “In summary, the applicant has proposed an investment plan whereby alien investors would make independent, passive, personal real estate investments that garner them no equity ownership in a new commercial enterprise. Instead of presenting a plan for a pooled equity investment of capital into a new commercial enterprise, the applicant has merely put forth a marketing strategy to attract sufficient buyers to fund later phases of development. This plan does not meet the letter or spirit of section 203(b)(5) or the regional center pilot program designed to encourage pooled investments in a new commercial enterprise benefitting a geographic region.” | ||
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