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Doe v. United States Immigration and Citizenship Service

United States District Court, N.D. Illinois, Eastern Division

February 28, 2017

JANE DOE, Plaintiff,
v.
UNITED STATES IMMIGRATION AND CITIZENSHIP SERVICE, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN United States District Judge

         Plaintiff, Jane Doe, filed a 13-count complaint, challenging the United States Immigration and Citizenship Service (“USCIS”) decision denying her I-526 petition to obtain an EB-5 immigrant investor visa. The Court held oral arguments on the cross-motions for summary judgment on February 16, 2017. After considering all the arguments in the briefs and in court as well as the administrative record, this Court grants summary judgment in favor of USCIS [36] and denies summary judgment for Doe [37].

         The Court will first address the issue of anonymity. Although plaintiff did not formally request to proceed anonymously, this Court will allow her to proceed under the pseudonym Jane Doe. While courts disfavor pseudonyms because the public has an interest in knowing what the judicial system is doing and who is availing themselves of the courts, the presumption that parties' identities are public information, can be rebutted by showing the harm to the plaintiff exceeds the likely harm from concealment. Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004). Courts have permitted the use of pseudonyms “to protect an individual from harassment, injury, ridicule, or personal embarrassment.” See, e.g., United States v. Doe, 655 F.2d 920, 922 (9th Cir. 1980).

         Here, Jane Doe is an Iranian national, who is seeking lawful entry to this country on an immigrant investor visa (EB-5) (Immigration and Nationality Act, as amended, § 203(b)(5), 8 U.S.C. § 1153(b)(5). She argues that her investment in America, while she is still in Iran, could be seen as against the interest of the Islamic Republic of Iran, jeopardizing her safety. Moreover, her identity is known to USCIS, which diminishes concern from concealment of her identity from the public. Accordingly, this Court will allow the pseudonym.

         Background

          Jane Doe filed an I-526 petition with USCIS, seeking EB-5 classification on her investment in the Elgin Assisted Living EB-5 Fund, LLC, on August 13, 2013. The fund or “EALEF, ” is a limited liability company consisting of 24 members seeking investor visas (EB-5 classification) based on investments of $500, 000 each. They plan to pool their investment to fund an investment loan of $12 million to Elgin Memory Care, LLC, which was formed to develop, construct, and operate an assisted living facility in Elgin, Illinois.

         The EB-5 program, 8 U.S.C. §1153(b)(5), is a visa classification for “employment creation” immigrants who invest a substantial amount of money (a least $1 million or, if in a “targeted employment area, ” $500, 000), in a new or troubled commercial enterprise that benefits the United States economy and creates or sustains full-time employment for at least ten United States workers.

         In order to obtain permanent residency through an EB-5 visa, the foreign investor must file a Form I-526, Immigrant Petition by Alien Entrepreneur (“I-526”) with USCIS. 8 C.F.R. § 204.6(a). Upon receiving an I-526 petition, USCIS investigates the claims in the petition and the attached documentation to determine whether the petitioner qualifies for EB-5 visa classification. 8 U.S.C. § 1154(b). The petitioner always has the burden of demonstrating that she is qualified. 8 U.S.C. § 1361. If USCIS approves the petition, then the immigrant investor (and dependent family members) may apply for a visa at a U.S. consulate abroad or, if already in the U.S., apply for adjustment of status with USCIS. If the visa or status adjustment is granted, the immigrant investor has a two-year period of conditional residency. During the conditional residency, the investor must maintain their investment of capital. 8 U.S.C. § 1186b(d)(1). Within 90 days of the end of this period the immigrant investor must petition USCIS to remove the conditional basis of his or her residency. 8 U.S.C. § 1186b(c)(1), (d)(2); 8 C.F.R. §216.6. The petition to remove the conditional status of the visa must demonstrate that his or her investment has “created or can be expected to create within a reasonable time ten full-time jobs for qualifying employees.” 8 C.F.R. § 216.6(a)(4(iv).

         To show that a new commercial enterprise will create the full time positions required for EB-5 classification, an immigrant investor must submit the following evidence with her I-526 petition:

(A) Documentation consisting of photocopies of relevant 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.

8 C.F.R. § 204.6(j)(4)(i).

         This two-year period in subsection (B) begins six months after the adjudication of the Form I-526. A comprehensive business plan submitted under this section should reasonably demonstrate that the investment will create the requisite number of jobs by the end of this two-year period.

         Multiple immigrant investors may use the same commercial enterprise as the basis for EB-5 classification, so long as “each petitioning investor has invested or is actively in the process of investing the required amount of capital for the area in which the new commercial enterprise is principally doing business, and provided each individual investment results in ...


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