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U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090

U.S. Citizenship and Immigration Services

DATE: SEP 0 5 2013 Office: CALIFORNIA SERVICE CENTER FILE:

INRE: Petitioner:

PETITION: Immigrant Petition by Alien Entrepreneur Pursuant to Section 203(b)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(5)

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.

This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/f'orms f'or the latest information on fee, filing location, and other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO.

Tr)f}hank you,... Z,' ' ~ -/fr"

Ron Rosenberg~ t<--Chief, Administrative Appeals Office

cc: Larry J. Behar Behar Law Group 888 S.E. Third Avenue, Suite 400 Fort Lauderdale, Florida 33316

www. uscis.gov

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NON-PRECEDENT DECISION Page 2

DISCUSSION: The Director, California Service Center, denied the preference visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

The petitioner seeks classification as an alien entrepreneur pursuant to section 203(b )(5) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(5). The petitioner's claimed-investment was through a U.S. Citizenship and Immigration Services (USCIS) designated regional center, Lake Buena Vista Regional Center, pursuant to section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. No. 102-395, 106 Stat. 1828 (1992), as amended by section 116 of Pub. L. No. 105-119, 111 Stat. 2440 (1997); section 402of Pub. L. No. 106-396, 114 Stat. 1637 (2000); section 11037 of Pub. L. No. 107-273, 116 Stat. 1758 (2002); section 4 of Pub. L. No. 108-156, 117 Stat. 1944 (2003); and section 1 of Pub. L. No. 112-176, 126 Stat. 1325 (2012). USCIS had designated Lake Buena Vista Regional Center as a regional center on September 18, 2008, with approved subsequent amendments on September 25, 2009 and January 28, 2010. The petitioner's investment is through an affiliated limited liability company, which seeks to fund a resort developer. The petitioner's investment is located in a targeted employment area for which the required amount of capital invested has been adjusted downward to $500,000.

The director determined that the petitioner had failed to demonstrate that she had placed her required amount of capital at risk in the new commercial enterprise. Specifically, the director concluded that the petitioner submitted an impermissible redemption agreement and subsequent amendments constituted material changes to the original documents.

On appeal, co-counsel asserts that the changes are not material because the director' s conclusion that the original agreement was problematic was in error. For the reasons discussed below, the petition is not approvable.

I. LAW

Section 203(b )(5)(A) of the Act, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758 (2002), provides classification to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise:

(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 than the immigrant and the immigrant's spouse, sons, or daughters).

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NON-PRECEDENT DECISION Page 3

II. PROCEDURAL AND FACTUAL BACKGROUND

On December 16, 2010, the petitioner filed Form 1-526, Immigrant Petition by Alien Entrepreneur, along with supporting documentation. On March 17, 2011, the director issued a notice of intent to deny the petition. Specifically, the director notified the petitioner that she failed to demonstrate that she had placed her capital at risk in the new commercial enterprise, and that the petitioner failed to establish that her investment was in a commercial enterprise located in a targeted employment area for which the required amount of capital invested had been adjusted downward to $500,000. On April18, 2011, the petitioner responded to the director's notice and submitted additional documentation. On May 23, 2011, the director denied the petition determining that the petitioner failed to demonstrate that she had placed her required amount of capital at risk in the new commercial enterprise. On June 22, 2011, co­counsel filed an appeal with USCIS and claimed that the original documentation was sufficient to establish eligibility.

III. ANALYSIS

On June 20, 2013, the AAO issued a notice ofadverse information and intent to dismiss the appeal, advising the petitioner that the evidence in the record failed to reflect the petitioner's claimed investment was through a USCIS designated regional center. Specifically, on July 23, 2012, USCIS terminated the Lake Buena Vista Regional Center's designation as a regional center pursuant to the regulation at 8 C.F.R. § 204.6(m)(6). On March 6, 2013, USCIS dismissed the regional center's motion to reconsider, and the regional center's designation remains terminated. Therefore, the petitioner was no longer eligible to meet the job creation requirements of section 203(b )(5) of the Act through indirect job creation as provided under 8 C.F.R. § 204.6G)(4)(iii), (m)(7). Rather, the petitioner was advised that she was required to demonstrate direct job creation or preservation under 8 C.P.R. § 204.6G)(4)(i) or (ii). However, the record did not contain a business plan explaining how the petitioner has created or will create or reserve at least 10 direct jobs for employees as defined at 8 C.P.R. § 204.6(e) at

, the new commercial enterprise.

The petitioner was afforded 15 days to respond to the AAO's notice. However, as of the date of this decision, the petitioner has not responded to the AAO's notice. For this reason alone the appeal maybe dismissed. 8 C.P.R. § 103.2(b )(13). Regardless, the petitioner failed to establish that she has met the job creation or preservation requirements pursuant to the regulation at 8 C.P.R. § 204.6G)(4)(i) or (ii). Moreover, any further discussion regarding any of the other statutory and regulatory requirements is now moot.

IV. SUMMARY

The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.