The Petitioner seeks classification as an immigrant investor pursuant to the Immigration and Nationality Act (the Act) section 203(b)(5), 8 U.S.C. § 1153(b)(5). 1 This fifth preference (EB-5) classification makes immigrant visas available to aliens who invest the requisite amount of qualifying capital in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time positions for qualifying employees.
The Chief ofthe Immigrant Investor Program Office initially denied the petition, concluding the record did not establish that the investment was made available to the business most closely responsible for job creation, that the funds invested by the Petitioner have been obtained through lawful means, and thatl ILLC, the new commercial enterprise (NCE), will create at least 10 full-time positions for qualifying employees. The Petitioner subsequently filed a combined motion to reopen and reconsider with the Chief. The Chief denied the combined motion, concluding that the new facts do not overcome the deficiencies identified in the initial denial decision and the Petitioner failed to establish that the previous issued decision was an incorrect application of law or policy. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance ofthe evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a new decision consistent with the following analysis.
Law
An alien may be classified as an EB-5 immigrant investor if they invest the requisite amount of qualifying capital in an NCE. The regulation at 8 C.F.R. § 204.6(j)(2) provides that the alien investor must establish that they have invested or are actively in the process of investing the required amount 1 On March 15, 2022, the EB-5 Reform and Integrity Act of 2022 was signed into law, revising general eligibility requirements, substantially reforming and codifying the Regional Center Program in section 203(b)(5) of the Act, and adding significant new integrity provisions. See 8 U.S.C. § l 153(b)(5) (2022). As the Petitioner had filed the petition on November 30, 2018, the relevant law in existence on that date governs this appellate adjudication. p. 2 of capital and must submit evidence verifying that they have placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk. The precedent decision, Matter ofIzummi, 22 I&N Dec. 169, 179 (Assoc. Comm'r 1998), explains that for an investor to establish that they have placed their investment fonds at risk for the purpose of generating a return, the foll amount of EB-5 money must be made available to the business( es) most closely responsible for creating the employment upon which the petition is based.
The relevant regulation permits an NCE to have multiple investors, including those seeking and those not seeking EB-5 classification. In such cases, the regulation requires that "the source(s) of all capital invested [in the NCE] is identified and all invested capital has been derived by lawful means." 8 C.F.R. § 204.6(g)(l).
Furthermore, an investor seeking EB-5 classification must demonstrate that their investment will benefit the U.S. economy and create at least 10 foll-time jobs for qualifying employees. 8 C.F.R. § 204.6(i)(4). An NCE may have multiple investors each seeking EB-5 classification, provided that each investor has invested or is actively in the process of investing the required amount and that each individual investment results in the creation ofat least 10 foll-time positions for qualifying employees. 8 C.F.R. § 204.6(g)(l).
The regulation at 8 C.F.R. § 204.6(j)(4)(i) provides that to establish job creation, a petitioner must submit:
(A) Documentation consisting of photocopies ofrelevant tax records, Form I-9, or other similar documents for ten (10) qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or
(B) A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when such employees will be hired. 2 Prospective job creation must be demonstrated through submission of a comprehensive business plan. The precedent decision Matter ofHo, 22 I&N Dec. 206,213 (Assoc. Comm'r 1998), specifies that to be "comprehensive," a business plan "must be sufficiently detailed to permit [U.S. Citizenship and Immigration Services (USCIS)] to draw reasonable inferences about the job-creation potential." "Mere conclusory assertions[, however,] do not enable [USCIS] to determine whether the job-creation projections are any more reliable than hopeful speculation." Id. The decision concludes: "Most importantly, the business plan must be credible." Id.
Analysis
The Petitioner claims to be one of 99 investors who pooled their fonds together to invest in the NCE, a business that offers for-hire vehicle services inl INew York. The Petitioner claims that 2 The two-year job creation period described in 8 C.F.R. § 204.6(j)(4)(i)(B) commences six months after the adjudication of the petition. 6 USC1S Policy Manual G.2(D)(5), https://www.uscis.gov/policy-manual.
I she invested $500,000 into the NCE. On appeal, the Petitioner states that the NCE is managed by Iand that the NCE continues to be "operational and ongoing."
Upon de novo review, we conclude that the Chief did not sufficiently consider or adequately analyze the evidence submitted by the Petitioner on motion to reopen. We further conclude that the Chief did not fully address the merits ofthe Petitioner's motion to reconsider contending that the denial decision was erroneous as matter of law. The Chief's decision on the combined motion to reopen and reconsider consist of92 pages. The decision on motion to reconsider repeats almost verbatim the same analysis and reasoning articulated in its decision on motion to reopen without considering the Petitioner's specific claims. An officer must fully explain the reasons for denying a visa petition in order to allow the Petitioner a fair opportunity to contest the decision and to allow us an opportunity for meaningful appellate review. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994). Accordingly, we will remand the matter for entry of a new decision consistent with our discussion below.
1. Capital at Risk
The Chief concluded that the Petitioner has not established that she had placed at least $500,000 at risk for the purpose ofgenerating a return on the capital, as required under 8 C.F.R. § 204.6(i)(2). The Chief based this finding on various inconsistencies in the record concerning the NCE's total number of vehicle ownership proportional to the total amount of contribution from the EB-5 investors.Inconsistencies in the record For example, the Chief discussed how the Petitioner's claim that the NCE "could not purchase assets outright" conflicted with her initial claim in the business plan that the NCE "has to date successfully put 425 cars on the road." The Chief also scrutinized the decrease in the amount of vehicle fleet between December 2015 to July 2020, from 425 vehicles to 281 vehicles, and questioned how $29.5 million from 59 investors made available to the NCE after December 2015 can result in a decrease in the NCE's vehicle ownership by 144 vehicles.
The Chief also discussed the conflicting claims made in the record regarding the use ofthe EB-5 funds. The Chief found that the NCE's oversubscription ofEB-5 funds preceded the date of the Petitioner's investment into the NCE and questioned the utilization of the Petitioner's funds in the business. The Chief further probed the initial business plan's claim that the EB-5 funds would purchase 880 vehicles and the remaining $11.5 million would be used for other project costs, such as administrative, infrastructure setup, leasehold improvements, or operation expenses, etc., but there are inconsistencies between the initial filing and the documents subsequently filed by the Petitioner regarding the distribution of funding. Based on these reasons, the Chief concluded that the full amount of the Petitioner's as well as other foreign national investors' EB-5 funds had not been made available to the NCE, the business most closely responsible for job creation upon which the petition is based, citing Matter oflzummi, 22 I&N Dec. at 179.Job creation or economic claims unsupported
The Chief, however, has not adequately explained how Matter ofIzummi supports the conclusion that the full amount of EB-5 funds had not been made available to the NCE.Tried to change the endeavor after filing The case, Matter oflzummi, 22 I&N Dec. at 172-73, 177-79, involved a regional center sponsored project where the NCE was funding a lending company that would in tum make micro-loans to small businesses and that lending p. 4 company was the job-creating entity. 3 The NCE in Matter ofIzummi took $30,000 from each EB-5 investment before remitting the fonds to the lending company, which would deduct its expenses before putting the fonds into the lending pool. Matter oflzummi held that USCIS "does not wish to encourage the creation of layer upon layer of 'holding companies' or 'parent companies,' with each business taking its cut and the ultimate employer seeing very little of the [investors'] money" for job creating purposes. Id. at 179.
Unlike Matter ofIzummi, this case does not involve a regional center sponsored project. Rather, it involves a project that relies on pooled investment from multiple foreign national investors. The Chief has not sufficiently explained how Matter ofIzwnmi supports the conclusion that the Petitioner failed to demonstrate that she had placed at least $500,000 at risk for the purpose of generating a return on the capital. See 8 C.F.R. § 204.6(i)(2); 8 C.F.R. § 103.3(a)(l)(i) (providing that when the Chief denies a petition, the Chief shall explain in writing the specific reasons for denial). The Chief raised valid concerns over the NCE' s use ofEB-5 fonds, the low number ofvehicle acquisition, and inconsistencies concerning the NCE's expenditures. However, these concerns, as relating to whether the NCE had used the fonds in accordance with its business plans and other business documents, are relevant in determining whether the business plans, including their job creation projections, are credible. See Matter ofHo, 22 I&N Dec. at 213.
On remand, the Chief should review the evidence and determine whether the Petitioner satisfied the concerns discussed in Matter of Izummi or that she had made her fonds available to the NCE, the business most closely responsible for job creation in this pooled investment case. See Matter of Izummi, 22 I&N Dec. at 179. The Petitioner has asserted that bank documents in the record confirm the path of fonds from her personal bank account to the project's escrow account, and the escrow account then remitted the fonds, partially, to the NCE's operating account. The Petitioner has claimed that from the escrow account, 90% ofthe investors' fonds flow into the NCE's operating account, with the remaining 10% scheduled to be released to the NCE upon the investor's Form 1-526 approval. The Petitioner farther asserted that her and other foreign national investors' EB-5 fonds were then disbursed for capital expenditures and operating expenses of the project, such as the NCE's operating, payroll, and vehicle expenses.
2. Lawful Source of Funds
As an alternative ground for denial, the Chief concluded that the Petitioner has not established the lawful source of all fonds invested in the NCE. See 8 C.F.R. § 204.6(g)(l). Specifically, the Chief discussed the inconsistencies in the record regarding the equity investment of $11 million. The Petitioner initially claimed that "non-EB-5 fonding for the NCE, including 'cash, assets, technology, and intellectual property' derives from an 'equity investment' of $11 million" and that the NCE was formed with "an initial investment of $11 million from its principals." However, on motion, the Petitioner revised her statement and claimed that the investment of $11 million "was not an investment into the actual NCE, but rather equity investment intol [" The Chief farther determined that the Petitioner had not documented the lawful source ofthe $11 million in non-EB-5 investment as she did not identify the "principals" responsible for the initial investment of $11 million as claimed in the 3 A regional center is an economic unit involved with the promotion of economic growth, including improved regional productivity, job creation, and increased domestic capital investment.No interest from users, customers or investors See 8 C.F.R. § 204.6( e ). p. 5 business plan or submit certified copies of any judgments or evidence of all civil, criminal, or administrative proceedings against the principal investors.
The Chief has not sufficiently addressed the Petitioner's claim that the decision incorrectly attributed $11 million as an investment into the NCE instead ofj I a separate company that manages the NCE.4 The Chief also did not analyze or discuss the NCE' s financial statements and bank statements, supporting the Petitioner's position that the $11 million should not be credited to the NCE. 5 Therefore, the Chief's discussion lacked specificities as required under 8 C.F.R. § 103.3(a)(l)(i) (providing that when the Chief denies a petition, the Chief shall explain in writing the specific reasons for denial). On remand, the Chief should analyze the relevant evidence before concluding that the Petitioner's statements regarding $11 million contain material inconsistencies or constitute a material change. In addition, the Chief should consider the pending lawsuit filed by the U.S. Securities and Exchange Commission (SEC) inl 12023 with the U.S. District Court in the Southern District of New York. The SEC charged the NCEI Iand an individual who manages both entities with making fraudulent misrepresentations in securities offerings to investors seeking EB-5 classification. According to the SEC, the two entities and the individual "falsely told [the NCE] investors that [the NCE] would be operated in a manner consistent with the requirements of the EB-5 visa program" but failed to do so. The lawsuit also alleges that the two entities and the individual "put key revenuegenerating contracts inl I name despite telling investors that [the NCE] would be the operating transportation business" and "falsely represented to [the NCE] investors that management had already contributed $11 million to [the NCE] though the management had made no such investment." The SEC further alleges that the individual "used one [noncitizen] investor's funds to pay a portion of a prior settlement between another one of his companies and the SEC."I I 2023, available at
(last accessed on February 25, 2025). The Chief
~------------------~ should consider if the allegations made by the SEC litigation materially impact the Petitioner's eligibility, especially the issue of lawful source of investment.
3. Job Creation
As another alternative ground for denial, the Chief concluded that the Petitioner had not satisfied the job creation requirements required under 8 C.F.R. §§ 204.6(g)(l) and (j)( 4). The Chief provides a lengthy discussion of various inconsistencies noted in the business plan regarding job creation. The identified inconsistencies involve disparate employment figures in the record, with the Petitioner's initial claim that the NCE created 1,229 full-time positions for qualifying employees and subsequently submitted documentation providing different figures, i.e. 1,267 jobs in 2019 and 1,180 jobs in 2020. In addition, the Chief determined that the Petitioner's business plan was not credible due to various inconsistencies, such as the NCE's use ofEB-5 funds and expenditures, and the low number ofvehicle acquisition.
We note that the deficiencies raised in the decision appear to support the Chief's adverse finding on the issue ofjob creation. First, the Petitioner acknowledges that many of the jobs, including jobs for drivers, that the NCE has created or intends to create are independent contractor positions. The Petitioner reiterates on appeal that it is industry practice to hire drivers as independent contractors and to issue to them Internal Revenue Service (IRS) Forms 1099-Misc (Miscellaneous Information), rather than Forms W-2 (Wage and Tax Statement). Although the Petitioner claims that independent contractors fall within the USCIS definition for an employee within section 274A(a)(4) of the Act and 8 C.F.R. § 274a.5, 6 the referenced regulations do not govern the eligibility and job creation requirements of EB-5 petitions. Under the relevant EB-5 regulations at 8 C.F.R. § 204.6(e), the definition ofan employee does not include independent contractors and therefore, the Petitioner cannot rely on the creation of independent contractor positions to meet EB-5 job creation requirements. Second, the Petitioner provides conflicting information regarding the employees which raises questions on whether they meet the definition of qualifying employees per 8 C.F.R. § 204.6(e) ( defining employees as who directly receive wages or other remuneration from the NCE and are permanent and full time). 7
However, on appeal, the Petitioner provides a report prepared byl Ia forensic accountant, "to address any inconsistencies alleged by USCIS" and claims that a third-party expert opinion written by I ~ supports that the business plan was credible. As the Chief has not analyzed such evidence, we will remand the issue to the Chief to determine whether these documents resolve deficiencies raised in the decision regarding job creation and credibility of the business plan.Plan or projections not corroborated
Conclusion
For the reasons discussed, the Chief's decision is withdrawn. On remand, the Chief may issue a new request for evidence or notice of intent to deny allowing the Petitioner an opportunity to provide additional evidence relevant to the issues discussed above, and any other evidence deemed necessary to demonstrate eligibility for the classification sought, before issuing a new decision. ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.