Quality of Case Preparation and Presentation Counts for Immigrant Investors or Entrepreneurs

by Joseph P. Whalen

(September 24, 2013)

I. Introduction: Following my posting of the AAO 2013 Non Precedent EB-5 Decision, (most up-to-date version found here), I was contacted by an individual with some observations and questions. This article is written in response to that query.

II. Rejection vs. Denial/Dismissal: As a preliminary matter, it must be clarified that the legal terms “rejection” and “denial” are not interchangeable.

a. Rejection means: a filing that is incorrectly submitted as:

i. Untimely Filed: which is simply that, late, beyond the time afforded by law to file something; or

ii. Improperly Filed: which may mean:

1. Filed by someone Without Standing To File: for example, this might be an Appeal or Motion filed by the “beneficiary” of an immigrant petition filed by someone else, i.e., NOT a self-petitioner; it must be pointed out that the I-526 is a self-petition which has appeal rights and the I-829 is a self petition with NO appeal rights but is RENEWABLE before an Immigration Judge in Removal Proceedings, the I-924 is an Application filed by an applicant and does have appeal rights; or

2. Filed by an Attorney or a BIA Accredited Representative: who is:

a. Barred, Expelled, or Suspended from the practice of immigration law or “representing clients” before DHS and/or EOIR;

b. Fails to file a new Form G-28 in proceedings before AAO; or

c. Is not properly e-registered, IF the case is filed with an IJ or before the BIA.

3. Filed at an Incorrect Location; or

4. Filed Without the Filing Fee, or with an Incorrect Filing Fee; or

5. Filed Without Proper Signature(s).

b. Denials are usually Decisions based on the Merits of the case as gleaned from the evidence filed in support of an application or petition;

c. Dismissals are the failures to attain reversal of an Initial Denial, Appeal Dismissal, or prior Motion Dismissal but may be either merit based or based on technicalities, which may include:

i. Summary Dismissal for failure to identify any errors of fact or law in the underlying decision, state any type of argument, or submit any pertinent evidence; or

ii. Relate to any of the reasons for rejection noted above.

III. Cases before AAO might entail:

a. An Appeal: if an appeal is allowed; in general, it must be submitted to the USCIS office that rendered the initial decision within 30 days (or 33 days if the decision was served by mail); [or to appeal a revocation, the appeal must be submitted within 15 days (or 18 days is served by mail)]; or

b. A regular Motion to Reopen: which must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence.

c. A Motion to Reopen an application or petition denied due to abandonment: must be filed with evidence that the decision was in error because:

i. The requested evidence was not material to the issue of eligibility;

ii. The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or

iii. The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Service's request was sent, and the request did not go to the new address. [These are the bases noted on USCIS Form M-188 as drawn from USCIS controlling regulations.]

d. A Motion to Reconsider: which must state the reasons for reconsideration and be supported by appropriate and valid legal arguments and/or citation to any pertinent precedent decisions, statutes, or regulations to establish that the decision was based on an incorrect application of law or USCIS policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision;

e. A Combined Motion: which entails arguments and new facts, must meet requirements for BOTH types of Motions.

IV. Case Preparation: As an initial matter at this stage, the petitioner or their Cousel must isolate the actual facts that must be proven for the particular benefit being sought in that application or petition. As this article was inspired by comments pertaining to AAO Decisions concerning USCIS Form I-526, Immigrant Petition by Alien Entrepreneur, it will be used as the primary example. Begin at the beginning and identify the pertinent form and thoroughly read the:

a. Form Instructions;

b. Implementing Regulations; and

c. Controlling Statute; then

d. Determine the Facts to be Proven; then

e. Determine what evidence:

i. MUST be submitted, and that wich

ii. MAY be submitted in order to support a particular “finding-of-fact”.

V. Case Presentation: This function involves the attempt to make a practical application of the requirements researched and the information gathered during case prepartion. This is the petitioners chance to to influence the adjudicator’s thought process when (s)he is attempting to addresss mixed questions of fact and law and thereby render a sound judgement.

a. The preponderance of the evidence standard of proof is in essence an adjudicator’s exercise of their judgement and we need to assist him or her in rendering the desired sound judgement in the petitioner’s favor.

b. Case Preparation as a hands-on experience involves the proper:

i. selection,

ii. collection,

iii. assembly, and

iv. submission

v. of evidence.

After having read through various AAO Decisions and the painstaking dissection and discussion of the evidence offered in various unsuccessful I-526 visa petitions, The curious reader mentioned above sent an e-mnail to me. That e-mail contained, in pertinent part, the following observations and questions:

· Have you considered writing an article about how bad lawyering leads to I-526 rejections?

· In the list of AAO decisions you posted several involved I-526 rejections.

· After reading the AAO decisions it appears that all of the I-526 petitions were massively defective and could never have met the I-526 burdens.

· Why are there unsigned tax returned submitted as evidence ?

· Why do petitioners submit post submission dated material that should be pre-pretition dated ?

· Why can't petitioners and their lawyers submit real, Ho compliant business plans ?

· Why do lawyers think that making representations to the USCIS on paper is a an appropriate substitute for the proper documentation ?

· Why is actual ownership of the NCE so muddled and not properly documented ?

· Why are employment records submitted where I-9 , W-2 , 940 , and payroll data do not tell the same story ?

That commentor (the holder of a J.D., himself) wondered if my writing an article on this topic would be akin to “biting the hand that feeds me”. To that I emphatically say “NO”. I feel that I have been able to present a carefully crafted article that points out common procedures that should be followed in case preparation and presentation. I further offer my services to those in need of training, tutoring, or mentoring on such procedural matters not taught in law school. I have reasonable rates. Call or e-mail!

That’s my two-cents, for now.

e-mail the author at: joseph.whalen774@gmail.com

About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.