2011 AAO Decision (South Dakota)

The USCIS website has published a new AAO decision dated 4/14/2011 involving denial of an I-829 petition for a Regional Center investor. The investment was made in 2005 in a new dairy farm within South Dakota International Business Institute (SDIBI), Dairy Economic Development Region (DEDR). A few points of interest:

• This decision reveals that two investors in the same business had had their I-829s approved before this petition was denied. The AAO explains “With respect to the other two alien investors who have removed conditions, the AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous.” Keep in mind that past success does not guarantee future success!
• The AAO did chastise USCIS for trying to deny the I-829 based on a factor that had been approved at the I-526 stage. “Under the reasoning of Chang, the director erred in revisiting the appropriateness of the multiplier. The director approved the Form 1-526, which disclosed that the petitioner would be using the 2.66 multiplier for the location of the dairy. The petitioner did not materially change the location of the proposed employment creation and the director does not identify information that was misrepresented or not disclosed at the Form 1-526 stage that would warrant a new evaluation of the multipliers used. Thus, the petitioner should be able to rely on the 2.66 multiplier as an acceptable means of demonstrating total job creation, including indirect jobs. The AAO withdraws the director’s concern that the 2.66 multiplier is not appropriate.”
• The AAO addresses (not very thoroughly) two important challenges by counsel: 1) that  the director is applying a clear and convincing burden of proof rather than the preponderance of the evidence standard appropriate to immigrant petitions, and 2) that an employer may not request any documents beyond those allowable for Form 1-9 purposes without violating employment discrimination provisions of the Act.
• All of you who considered verifying direct jobs with payroll records should read this, to see what a mountain of paperwork may be involved and what a comb USCIS may take to it. (Never guessed that the line spacing on your W-2s could become a focus of suspicion? Think again!)