Double Stumblebum EB-5 Case

This article was last updated on May 25, 2022

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Immigration law violations are usually solitary, silent, and all-too-successful, but once in a while there is a public failure.

Today we have an exception to the silently successful rule that briefly brightens an otherwise drab scene of unnoticed violations. In this EB-5 case, we also see that having a million dollars may buy you a family-sized set of green cards, but it does not necessarily purchase you either brains or a half-decent lawyer.

This particular case came to light when a not-very-clever alien millionaire appealed a negative USCIS staff decision to that agency’s Administrative Appeals Office, and the AAO handed down a decision. This is what happened:

The alien, probably from Mexico, had opened three restaurants somewhere in Texas and claimed that because he had invested more than $1 million in them he should be given an EB-5 conditional resident card (that could be converted to a green card later.) In order to secure that benefit the alien must prove that the restaurants had provided full time jobs to 10 legal U.S. residents and that the $1 million was earned in a legitimate way.

The alien’s lawyer then submitted evidence of the employment of 67 workers, all said to be either citizens or LPRs (lawful permanent residents). USCIS ran the names and Social Security numbers against their own lists of legal aliens and found that one of the employees seemed to be legit and 56 of them were not (so they must have been illegals). As to the remaining 10, they were said to be citizens, but no proof was offered.

AAO also cast doubt on the legitimacy of the funds used to start the restaurants, and for these reasons sent the decision back to USCIS for further processing in view of its (AAO’s) decision. The tea leaves suggest that another negative decision will be forthcoming. (The decision also mentions, in passing, the possibility that some of the workers were not paid the minimum wage and that there were numerous internal discrepancies about salaries and wages, which casts doubt on the whole application.)

Let’s step back in time to the moment that the alien got his first negative decision from the government. At this point the owner — and his lawyer — know that the government possesses evidence that the owner has violated the employer sanctions act — though this is not specified in so many words in the decision. The government also knows that the alien has actually hired only one worker for a full-time job who can be proved to be in the country legally, and needs 10 in order to qualify. And the government has lots of doubts about the integrity of the proposal.

At this point the alien and his lawyer decided to appeal to AAO, despite the weight of the evidence against the case. A more sensible decision would have been to let sleeping dogs lie and hope that the Obama administration would not deport this (so far) non-violent violator and that the employer’s sanctions case would not be pursued by ICE, as so many are not. But this was not done.

Instead the owner and lawyer opted to go semi-public with their sure-to-fail case, and to perhaps further endanger the alien. Odd.

One possible reason for this kind of behavior on the part of the lawyer is that such cases are in the “tails I win, heads you lose” category. The lawyer gets paid win or lose. If the lawyer loses, his name never appears in public (as it should), but if he wins he, with his client’s consent, can trumpet the case in legal publications likeImmigration Daily or Interpreter Releases.

AAO, as we have noted before, has a bizarre position on privacy so we do not know the name of the alien, his lawyer, his restaurants, or that of the adjudicator sitting on the case. The policy simply encourages the filing of bad briefs.

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