Matter of Izummi

In Visa Petition Proceedings

在签证申请程序中

A76 426 873

A76 426 873

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DISCUSSION

讨论

The preference visa petition was denied by the Director, Texas Service Center, who certified the decision to the Associate Commissioner for Examinations for review. The decision of the director will be affirmed. The petitioner seeks classification as an alien entrepreneur pursuant to section 203(b)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(5), and section 610 of the Appropriations Act of 1993. The direc- tor determined that the petitioner had failed to establish that he had placed the requisite capital at risk. The director made the following findings: $30,000 of the claimed contribution would be used for the expenses of the Partnership rather than being infused into the subsidiary commercial enterprise for the purpose of employment creation; the majority of the remaining capital would not be available for job creation because the Partnership was required to maintain it in reserves; part of the petitioner’s capital contribution was not an investment because it was made in exchange for a debt arrangement; and another part of the petitioner’s con- tribution would derive from guaranteed annual interest payments received from the Partnership. In response, the petitioner submits two separate briefs, two supplemen- tal briefs, and numerous exhibits. He contends that the director’s decision misstates existing facts and mischaracterizes the provisions of the American Export Limited Partnership (“AELP”) investor program. The petitioner also complains that the director’s decision fails to mention, distinguish, or “explain away” approvals of other AELP petitions by both the Texas Service Center and Vermont Service Center; furthermore, the director’s decision fails to mention, distinguish, or “explain away” prior Service opin-

该优先签证申请被德克萨斯服务中心主任拒绝，主任将该决定认证提交负责审查的助理专员复核。主任的决定将予维持。 申请人寻求根据《移民与国籍法》第203(b)(5)条、8 U.S.C. § 1153(b)(5)以及1993年《拨款法》第610条被归类为外籍企业家。主任认定，申请人未能证明其已将所需资本置于风险中。主任作出以下认定：所主张出资中的$30,000将用于合伙企业的开支，而非注入子公司商业企业用于创造就业；剩余资本的大部分将无法用于创造就业，因为合伙企业被要求将其保留在准备金中；申请人的部分出资不构成投资，因为该出资是作为债务安排的对价而作出的；申请人出资的另一部分将来源于从合伙企业获得的保证年度利息付款。 作为回应，申请人提交了两份单独的辩护状、两份补充辩护状以及大量证据。他主张，主任的决定错误陈述了现有事实，并错误描述了American Export Limited Partnership（“AELP”）投资者计划的条款。申请人还抱怨，主任的决定未提及、区分或“解释掉”德克萨斯服务中心和佛蒙特服务中心对其他AELP申请的批准；此外，主任的决定未提及、区分或“解释掉”先前直接支持并授权使用AELP计划各项特征的移民局意见

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ions and communications that directly supported and authorized the use of various features of the AELP program. The petitioner states that, even if the director had been correct in denying the petition, certain new amendments to the partnership plan should cause the Administrative Appeals Unit (AAU) to approve his petition. Oral argument was granted in this case, and during his presentation counsel reiterated the points made in the brief. Counsel emphasized that the petitioner had made an investment by executing and delivering the promis- sory note for $500,000; the schedule of future payments under the note was irrelevant. Section 203(b)(5)(A) of the Act provides classification to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise:

和通信。申请人称，即使主任拒绝申请是正确的，合伙计划的某些新修订也应促使行政上诉单位（AAU）批准其申请。 本案获准进行口头辩论，其陈述期间，律师重申了辩护状中提出的要点。律师强调，申请人通过签署并交付$500,000的期票已作出投资；期票项下的未来付款时间表无关紧要。 《移民与国籍法》第203(b)(5)(A)条规定，寻求进入美国从事新商业企业的合格移民可获得分类：

The petitioner indicates that the petition is based on an investment in a new business in a targeted employment area for which the required amount of capital invested has been adjusted downward. In addition, the business is located in an area designated as a “regional center” authorized to participate in the Immigrant Investor Pilot Program.

申请人表示，该申请基于对目标就业区内新企业的投资，该投资所需资本金额已下调。此外，该企业位于被指定为“区域中心”并获准参与移民投资者试点计划的区域内。

THE PETITIONER HAS NOT DEMONSTRATED THAT AELP IS ENGAGING IN APPROVED REGIONAL-CENTER ACTIVITIES IN TARGETED EMPLOYMENT AREAS

申请人未能证明AELP在目标就业区内从事经批准的区域中心活动

8 C.F.R. § 204.6(e) states, in pertinent part, that:

8 C.F.R. § 204.6(e)的相关部分规定：

8 C.F.R. § 204.6(j)(6) states that:

8 C.F.R. § 204.6(j)(6)规定：

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On October 19, 1995, American Export Partners, LLC (“AEP”) filed its articles of organization with the State of South Carolina. On March 25, 1996, AELP filed its certificate of limited partnership with the State of South Carolina, and AEP was designated as AELP’s general partner. Both AEP and AELP are located in Charleston, South Carolina. In a letter dated February 8, 1995, the Assistant Commissioner for Adjudications designated AEP a regional center and specified that individ- uals could file petitions with the Service “for new commercial enterprises located within the eight-county coastal areas, or Lowcountry, of South Carolina.” On June 14, 1995, the Acting Assistant Commissioner for Adjudications expanded the geographical area covered by the AEP region- al center to include 22 other counties in South Carolina. The petitioner has presented evidence that many, but not all, of the counties within this regional center were considered rural in 1995 and qual- ified at that time as targeted employment areas. 1 In his brief, the petitioner explains that AELP has established a commercial credit corporation subsidiary, American Commercial and Export Credit Company, Inc., with its co-venturer, Resurgens Capital & Investment. This credit company makes asset-based loans and engages in receivables financing for small export companies “located throughout South Carolina and the southeastern United States.” The capital provided by the alien investors to AELP is used to purchase stock in the credit com-

1995年10月19日，American Export Partners, LLC（“AEP”）向南卡罗来纳州提交了其组织章程。1996年3月25日，AELP向南卡罗来纳州提交了其有限合伙证书，AEP被指定为AELP的普通合伙人。AEP和AELP均位于南卡罗来纳州查尔斯顿。 在1995年2月8日的函件中，负责裁定的助理专员指定AEP为区域中心，并明确个人可以向移民局提交申请，“针对位于南卡罗来纳州八个沿海县地区即Lowcountry内的新商业企业”。 1995年6月14日，负责裁定的代理助理专员将AEP区域中心覆盖的地理区域扩大至包括南卡罗来纳州另外22个县。 申请人已提交证据证明，该区域中心内的许多（但并非全部）县在1995年被视为农村地区，并在当时符合目标就业区的资格。1 申请人在其辩护状中解释，AELP与其共同投资人Resurgens Capital & Investment设立了商业信贷公司子公司American Commercial and Export Credit Company, Inc.。该信贷公司为“位于南卡罗来纳州各地及美国东南部”的小型出口公司提供资产抵押贷款并从事应收账款融资。外籍投资者向AELP提供的资本用于购买该信贷公司的股

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pany, and the credit company uses this money to secure loans from an insti- tutional bank lender. This other lender will increase the capital by a factor of three or four. The petitioner claims that the credit company has succeed- ed in placing “several” loans already. According to the materials submitted, the credit company has extended or purchased four loans to date. The credit company has purchased a $780,000 loan that had been extended to Pillow Perfect, Inc. by First Capital Bank; Pillow Perfect is located in Woodstock, Georgia. The credit company has purchased a $380,000 loan that had been extended to Pointe Services, Inc. by First Capital Bank; Pointe Services is located in Atlanta, Georgia. The credit company has extended a $200,000 loan to Advanced Technology Services, Inc. located in Atlanta, Georgia. Finally, the credit company has extended a $1,000 loan to Bitz America, Inc., in Martinez, Georgia. It is not known how much the credit company paid to purchase the loans involving Pillow Perfect and Pointe Services. The above four loans evidence at most the use of only $1,361,000 of the funds obtained from the first 95 investors who were granted under this program. 2 The petitioner has provided loan-prospect reports from October 1997 and February 1998; these reports show that the credit company has proposed (but not succeed- ed in) lending money to various companies in Norcross, Oakwood, Atlanta, and Marietta, Georgia as well as Miami and Orlando, Florida. Pillow Perfect is located in Cherokee County, Georgia; according to the employment information submitted by counsel, Cherokee County did not have any census tracts that qualified as areas of high unemployment in 1995. Pointe Services and Advanced Technology Services, Inc., are located in Fulton County. The petitioner has not demonstrated that these companies are located in the particular census tracts that qualified as areas of high unemployment in 1995 or in any other year. Nor has the petitioner shown that Bitz America is located in a targeted employment area. The few transactions in which the credit company has engaged have not been shown to benefit companies located in targeted employment areas. 3 Even the businesses considered “loan prospects” are not located in targeted employment areas. Neither the credit company, headquartered in Atlanta, nor AELP, headquartered in Charleston, has been shown to be located in a targeted employment area. Therefore, the amount of capital necessary to make a qualifying investment in this matter is $1,000,000.

公司，而信贷公司用这笔钱从一家机构银行放贷人处获得贷款担保。这家其他放贷人将使资本增加三倍或四倍。申请人声称，该信贷公司已成功安排了“数笔”贷款。 根据提交的材料，该信贷公司迄今已发放或购买了四笔贷款。该信贷公司购买了一笔780,000美元的贷款，该贷款此前由First Capital Bank发放给Pillow Perfect, Inc.；Pillow Perfect位于佐治亚州伍德斯托克。该信贷公司购买了一笔380,000美元的贷款，该贷款此前由First Capital Bank发放给Pointe Services, Inc.；Pointe Services位于佐治亚州亚特兰大。该信贷公司向位于佐治亚州亚特兰大的Advanced Technology Services, Inc.发放了一笔200,000美元的贷款。最后，该信贷公司向位于佐治亚州马丁内斯的Bitz America, Inc.发放了一笔1,000美元的贷款。 目前尚不清楚该信贷公司为购买涉及Pillow Perfect和Pointe Services的贷款支付了多少款项。上述四笔贷款至多证明，仅使用了根据该计划获批的前95名投资者所获得资金中的1,361,000美元。2 申请人提供了1997年10月和1998年2月的贷款前景报告；这些报告显示，该信贷公司已提议（但未成功）向佐治亚州诺克罗斯、奥克伍德、亚特兰大和玛丽埃塔以及佛罗里达州迈阿密和奥兰多的多家公司放贷。 Pillow Perfect位于佐治亚州切罗基县；根据律师提交的就业信息，切罗基县在1995年没有任何人口普查区符合高失业率地区的资格。Pointe Services和Advanced Technology Services, Inc.位于富尔顿县。申请人未证明这些公司位于1995年或任何其他年份符合高失业率地区资格的特定人口普查区。申请人也未证明Bitz America位于目标就业区。 该信贷公司所从事的少数交易未被证明使位于目标就业区的公司受益。3 即使是被视为“贷款前景”的企业也不位于目标就业区。总部位于亚特兰大的该信贷公司和总部位于查尔斯顿的AELP均未被证明位于目标就业区。因此，在本案中进行合格投资所需的资本金额为1,000,000美元。

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Also, the regional-center designation in this case was granted for most of the counties in South Carolina. It did not extend to Georgia or Florida. While AELP is located in South Carolina, neither the credit company extending the actual loans nor the companies receiving the loans are locat- ed within the regional center. Therefore, the petitioner must establish direct employment creation. The petitioner states in his brief that the Service had expressly permit- ted the use of the subsidiary credit corporation as a vehicle for making loans to export-related businesses not related to the regional center. He refers to a letter dated September 27, 1995, from the Chief of the Immigrant Branch, Adjudications, who was asked whether the customers of an export credit corporation needed to be located within the region covered by the regional- center designation. The Chief’s response did not directly address this ques- tion; instead, he stated, “Although the regional center should focus on a geographical area, there is no requirement in either the statute or the regu- lations that the exports generated under the Pilot Program be produced or manufactured within the area designated by the regional center,” (empha- sis added). 4 The petitioner concludes that the credit company may extend loans to any export-related company located anywhere. Such an interpretation renders the geographical limitation of a regional center meaningless. The definition of “regional center” in 8 C.F.R. § 204.6(e) requires that the economic unit be involved in “improved region- al productivity.” 8 C.F.R. § 204.6(m)(3)(i) states that, in order to gain approval as a regional center, an entity must describe clearly how it will promote economic growth through “improved regional productivity.” If neither the credit company nor the export-related businesses are located in the regional center, it is difficult to see how the productivity within the regional center is being improved. 5 As the subsidiary credit corporation’s actual and proposed loan activities benefit companies outside the geographical area covered by the regional-center designation granted in this case, the petitioner must estab-

此外，本案中的区域中心指定是针对南卡罗来纳州大多数县授予的。它并未延伸至佐治亚州或佛罗里达州。虽然AELP位于南卡罗来纳州，但发放实际贷款的信贷公司和接收贷款的公司均不位于该区域中心内。因此，申请人必须证明直接就业创造。 申请人在其简报中称，移民局曾明确允许使用子公司信贷公司作为向与区域中心无关的出口相关企业放贷的工具。他提到1995年9月27日裁决处移民科科长的一封信，该信中有人询问出口信贷公司的客户是否需要位于区域中心指定所涵盖的区域内。科长的回复并未直接回答该问题；相反，他表示：“尽管区域中心应侧重于某一地理区域，但法规或条例均未要求根据试点计划产生的出口产品必须在区域中心指定区域内生产或制造”（着重号为后加）。4 申请人由此得出结论，该信贷公司可以向位于任何地方的任何出口相关公司放贷。 这种解释使区域中心的地理限制变得毫无意义。8 C.F.R. § 204.6(e)中“区域中心”的定义要求该经济单位参与“改善区域生产力”。 8 C.F.R. § 204.6(m)(3)(i)规定，为获得区域中心批准，实体必须清楚描述其将如何通过“改善区域生产力”促进经济增长。 如果信贷公司和出口相关企业均不位于区域中心内，则很难看出区域中心内的生产力如何得到改善。5 由于子公司信贷公司的实际和拟议贷款活动使区域中心指定所涵盖地理区域以外的公司受益，申请人必须证

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lish direct employment creation; he cannot rely on indirect employment cre- ation. For the sake of argument, however, the AAU will analyze the invest- ment portion of this case using his claim of indirect employment creation.

明直接就业创造；他不能依赖间接就业创造。然而，为便于论证，AAU将使用其关于间接就业创造的主张来分析本案的投资部分。

CERTAIN REVISIONS TO THE PARTNERSHIP AGREEMENT CANNOT BE ACCEPTED

对合伙协议的某些修订不能接受

Subsequent to the issuance of the director’s decision, counsel has sub- mitted numerous revisions to AELP’s limited partnership agreement. He explains that the revisions are in the form of Stage I and Stage II amend- ments. The original partnership agreement had been prepared and executed in March of 1996, prior to the creation of an initial payment option of $120,000. When the $120,000 option was added to AELP’s program in the fall of 1996, AELP neglected to amend the partnership agreement. As a result, many provisions within the documents signed by this petitioner con- tradict provisions within the official partnership agreement. The Stage I amendments are intended to correct these inconsistencies. In addition, after the attorneys for AELP obtained a copy of a memo- randum issued in December of 1997 by the Service’s Office of General Counsel (“OGC”), “the Limited Partnership Agreement of AELP was fur- ther amended to restructure, amend or eliminate some or all of [the] ‘object- ed-to’ provisions.” These Stage II amendments, counsel continues, should render the instant petition approvable. A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971), Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently defi- cient petition conform to Service requirements. Counsel states that petitions have previously been amended to reflect program changes and to cure defects in the original documents. He refers to a 1995 case in which the center director had correctly found that the busi- ness at issue did not constitute a troubled business. At oral argument in that case, counsel presented a completely different business plan that abandoned the troubled-business claim and substituted a plan to create a new business instead. This new business plan formed the basis of an approval. The case referenced by counsel, however, resulted in an unpublished decision that did not have any precedential value, procedural or otherwise. Furthermore, the AAU acknowledges that acceptance of the new business plan at such a late date was improper and erroneous. In the case at hand, the AAU will recognize the Stage I amendments to the extent that they cause the partnership agreement to conform to the other

在主任作出决定后，律师提交了对AELP有限合伙协议的多项修订。他解释说，这些修订采取第一阶段和第二阶段修正案的形式。 原始合伙协议于1996年3月准备并签署，早于120,000美元初始付款选项的设立。当120,000美元选项于1996年秋季被加入AELP计划时，AELP疏忽了修订合伙协议。结果，本申请人签署的文件中的许多条款与正式合伙协议中的条款相矛盾。第一阶段修正案旨在纠正这些不一致之处。 此外，在AELP的律师获得移民局总法律顾问办公室（“OGC”）于1997年12月发布的备忘录副本后，“AELP的有限合伙协议被进一步修订，以重组、修改或删除部分或全部‘被反对’条款。”律师继续称，这些第二阶段修正案应使本申请获得批准。 申请人必须在提交时确立资格；申请不能在未来某日申请人根据新的事实组合变得符合资格后获得批准。见Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971)。因此，申请人不得对已提交的申请作出重大变更，以努力使明显有缺陷的申请符合移民局要求。 律师称，此前曾修订申请以反映计划变更并弥补原始文件中的缺陷。他提到1995年的一起案件，其中中心主任正确地认定涉案企业不构成困境企业。在该案的口头辩论中，律师提交了一份完全不同的商业计划，放弃了困境企业主张，转而替代为创建新企业的计划。这份新商业计划构成了批准的基础。然而，律师所引用的案件产生了一项未公布的裁决，该裁决不具有任何先例价值，无论是程序上的还是其他方面的。此外，AAU承认，在如此晚的阶段接受新商业计划是不当且错误的。 在本案中，AAU将承认第一阶段修正案，只要它们使合伙协议与其它

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agreements that this petitioner had originally executed and submitted with his Form I-526. The AAU will make no determination as to the adequacy or inadequacy of the Stage II amendments, as they are irrelevant in this pro- ceeding; the Service cannot consider facts that come into being only subse- quent to the filing of a petition. See Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981). If counsel had wished to test the validity of the newest plan, which is materially different from the original plan, he should have with- drawn the instant petition and advised the petitioner to file a new Form I- 526. The case shall be analyzed only on the basis of the original documents and the revisions that correct the original inconsistencies.

协议相一致，而本申请人最初签署并随其I-526表提交了这些协议。AAU不会就第二阶段修正案的充分性或不充分性作出任何认定，因为它们在本程序中无关；移民局不能考虑仅在申请提交之后才产生的事实。见Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981)。如果律师希望检验最新计划的有效性，而该计划与原始计划存在重大差异，他应当撤回本申请并建议申请人提交新的I-526表。本案应仅根据原始文件以及纠正原始不一致之处的修订进行分析。

THE PETITIONER HAS NOT MADE A QUALIFYING “INVESTMENT”

申请人未作出合格的“投资”

8 C.F.R. § 204.6(e) states, in pertinent part, that

8 C.F.R. § 204.6(e)的相关部分规定：

8 C.F.R. § 204.6(j) states, in pertinent part, that:

8 C.F.R. § 204.6(j) 的相关部分规定：

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Counsel states that the petitioner has made an investment of $500,000 in the form of a $500,000 promissory note. This note provides for an initial deposit of $120,000 into an escrow account, to be released to the partner- ship upon approval of the immigrant visa, five annual payments of $18,000, and a final balloon payment of $290,000.

律师称，申请人以500,000美元本票的形式进行了500,000美元的投资。该本票规定初始向托管账户存入120,000美元，在移民签证获批后释放给合伙企业，五笔年度付款每笔18,000美元，以及最后一笔290,000美元的期末整付。

On October 14, 1997, Wells Fargo Bank notified the petitioner that his funds in the amount of $120,000 had been received and deposited into a custody account for the Partnership. According to section 2.A(3) of the investment agreement, the petitioner agreed to instruct counsel, as trustee of his escrow account, “immediately to release US$30,000 as a refundable advance for initial expenses of the Partnership”; the remaining $90,000 would be released upon approval of the visa application. As pointed out by the director on page 4 of his decision, the use of the $30,000 for Partnership costs and expenses meant that the full $500,000 would not be “infused into the commercial enterprise for the purpose of employment creation.” In response, the petitioner states that it is possible that the director objected to the expenses being released from the escrow account and that the director might not have objected if the expenses had been paid after the funds were released from escrow. Regardless of the timing of the payment, the ultimate payee is the Partnership, the petitioner maintains. The timing

1997年10月14日，Wells Fargo Bank通知申请人，其120,000美元的资金已收到并存入合伙企业的托管账户。根据投资协议第2.A(3)条，申请人同意指示律师作为其托管账户的受托人“立即释放30,000美元作为合伙企业初始费用的可退还预付款”；剩余的90,000美元将在签证申请获批后释放。正如局长在其决定第4页所指出的，将30,000美元用于合伙企业成本和费用意味着全部500,000美元不会“注入商业企业以创造就业”。对此，申请人称，局长可能是反对从托管账户释放费用，如果费用是在资金从托管释放后支付的，局长可能就不会反对。申请人坚持认为，无论付款时间如何，最终收款人是合伙企业。付款时间

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of the payment, however, was not the director’s objection. The director cited 8 C.F.R. § 204.6(j)(2) in stating that the required amount of capital must be placed at risk “for the purpose of generating a return on the capital placed at risk.” As the payment of initial Partnership expenses and costs was not the type of profit-generating activity contemplated by the regulations, no more than $470,000 could be considered to have been “invested.” The petitioner argues that fees and expenses incurred in the process of raising capital are customary and reasonable. For example, when business- es go to banks for money, the banks charge processing fees, points, apprais- al fees, and other expenses that are included in the debt. The petitioner con- tinues:

然而，并不是局长反对的对象。局长援引8 C.F.R. § 204.6(j)(2) 指出，所需数额的资本必须“为使置于风险中的资本产生回报”而置于风险之中。由于支付初始合伙企业费用和成本不属于法规所设想的产生利润的活动类型，因此最多只能将470,000美元视为已“投入”。申请人辩称，在筹集资本过程中产生的费用和开支是惯常且合理的。例如，当企业向银行借款时，银行收取的处理费、点数、评估费和其他费用都计入债务。申请人继续称：

The petitioner refers to AELP’s subsidiary credit company having retained an expert in asset-based loans for an annual salary “in excess of $200,000.” What is important, the petitioner emphasizes, is that the money spent by AELP on initial expenses is in furtherance of the Partnership busi- ness. 6 While points and processing fees are often financed, they are consid- ered an amount over and above the original loan amount. To illustrate, when a person intends to obtain a mortgage for $200,000, he can choose to pay the points and fees separately or he can choose to finance them. If he choos- es to finance the fees, the principal on his mortgage is no longer just $200,000 but something more. In the investor context, the Service is not prohibiting the payment of Partnership expenses; rather, the Service is find- ing that if AELP wishes to have the limited partners pay these expenses, these expenses must be paid in addition to the $500,000. The petitioner explains that AELP deducts its operating expenses of $30,000, and the remaining funds go to the subsidiary credit corporation. The credit corporation then deducts its own expenses and the leftover money is contributed to a lending fund from which the loans to export com- panies are made. The petitioner contends that the new commercial enter-

申请人提到AELP的子公司信贷公司以“超过200,000美元”的年薪聘请了一位资产抵押贷款专家。申请人强调，重要的是AELP用于初始费用的钱是为了促进合伙企业业务。6 虽然点数和处理费通常会被融资，但它们被视为超出原始贷款金额的数额。举例来说，当一个人打算获得200,000美元的抵押贷款时，他可以选择单独支付点数和费用，也可以选择将其融资。如果他选择融资这些费用，其抵押贷款的本金就不再只是200,000美元，而是更多。在投资者语境下，移民局并不禁止支付合伙企业费用；相反，移民局认定，如果AELP希望有限合伙人支付这些费用，这些费用必须在500,000美元之外另行支付。 申请人解释说，AELP扣除其30,000美元的运营费用，剩余资金流向子公司信贷公司。信贷公司随后扣除自己的费用，剩余的钱被投入一个贷款基金，从该基金向出口公司发放贷款。申请人主张，这里的新商业企

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prise here is the Partnership, AELP, and an investment of $500,000 in AELP constitutes an investment of $500,000 in the new commercial enterprise, “It was never AELP’s intent...that 100% of the funds contributed by the foreign national investors would flow through the partnership and into the credit corporation for lending to U.S. export businesses.” After AELP and the credit corporation deduct tens of thousands of dollars for their “expenses,” however, it is not clear how much of the original money is made available for loans. It could perhaps be argued that, when the owner of a corporation pays a million dollars for shares in his business and earmarks the money for equipment, inventory, and working capital, some of the working capital will in fact be spent on initial salaries and expenses. In the partnership scenario, the new commercial enterprise is the partnership, and it too will need to spend money on initial salaries and expenses. The Service distinguishes these two situations in that, in the former example, the employment-creat- ing entity is spending the money. In the latter example, the employment- creating entity never receives the money spent on the partnership’s expens- es. Especially where indirect employment creation is being claimed, and the nexus between the money and the jobs is already tenuous, the Service has an interest in examining, to a degree, the manner in which funds are being applied. The full amount of money must be made available to the busi- ness(es) most closely responsible for creating the employment upon which the petition is based. 7 The Service 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 lit- tle of the aliens’ money. In his brief on behalf of the petitioner, counsel claims that the deduc- tion of AELP’s and the credit company’s expenses had previously been dis- closed to, and approved by, the Service when the Service approved the gen- eral partner’s designation as a regional center. The focus of an inquiry into the designation of a regional center, however, has to do with whether pro- posed activities will improve regional productivity through increased exports; it has nothing to do with the propriety of various business expens- es and how they are funded. Counsel also claims that the same facts were disclosed within the past few months, both in writing and during a confer- ence attended by AELP representatives and Service attorneys. Disclosure, though, does not mandate approval.

业是合伙企业，AELP，对AELP的500,000美元投资构成对新商业企业的500,000美元投资，“AELP从未打算……外国国民投资者投入的100%资金都通过合伙企业流入信贷公司，用于向美国出口企业贷款。”然而，在AELP和信贷公司扣除数万美元的“费用”后，尚不清楚原始资金中有多少可用于贷款。 或许可以争辩说，当一家公司的所有者支付一百万美元购买其企业的股份，并将这笔钱指定用于设备、库存和营运资金时，部分营运资金实际上将用于初始工资和费用。在合伙企业情形中，新商业企业是合伙企业，它也需要在初始工资和费用上花钱。移民局区分这两种情况：在前一个例子中，创造就业的实体在花钱。在后一个例子中，创造就业的实体从未收到用于合伙企业费用的钱。特别是在主张间接创造就业且资金与工作岗位之间的联系本已薄弱的情况下，移民局有兴趣在一定程度上审查资金的运用方式。全部金额必须提供给最直接负责创造申请所依据的就业的企业。7 移民局不希望鼓励建立一层又一层的“控股公司”或“母公司”，每家企业都抽取自己的份额，而最终雇主几乎看不到外国人的钱。 在其代表申请人提交的简报中，律师声称，AELP和信贷公司费用的扣除此前已向移民局披露并获得其批准，当时移民局批准了普通合伙人的区域中心指定。然而，对区域中心指定的调查重点在于拟议活动是否会通过增加出口来提高区域生产力；这与各种业务费用是否恰当以及如何筹资无关。律师还声称，同样的事实已在过去几个月内以书面形式和在有AELP代表和移民局律师参加的会议上披露。然而，披露并不强制要求批准。

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In his brief on behalf of the petitioner, counsel cites a 1995 case in which the Vermont Service Center had questioned whether $80,000 or $90,000 set aside for fees could be considered an investment of capital. On May 25, 1995, the Administrative Appeals Unit approved the case. Counsel further states, “During oral argument an AAU official stated that it was proper to deduct such fees from the amount of the capital contributed by the investor without thereby reducing the investor’s contribution of capital.” The decision rendered by the AAU in that case did not specifically address the issue of fees. In addition, the decision in that case was unpub- lished and has no precedential value.

在代表申请人提交的辩护状中，律师引用了1995年的一起案件，在该案中，佛蒙特服务中心曾质疑为费用预留的80,000美元或90,000美元是否可被视为资本投资。1995年5月25日，行政上诉单位批准了该案。律师进一步指出，“在口头辩论中，一位AAU官员表示，从投资者出资的资本金额中扣除此类费用而不因此减少投资者的资本出资是恰当的。”AAU在该案中作出的决定并未具体涉及费用问题。此外，该案的决定未公布，不具有先例价值。

According to section 2B of the investment agreement executed by the petitioner, the petitioner must make five annual cash payments of $18,000 each, totalling $90,000, commencing one year from the date he is admitted to the Partnership. Section 3 of the investment agreement, however, states, “I shall receive a return on the cash I have contributed to the Partnership in the amount of 12% per annum, payable annually, commencing one year from the date I am admitted to the Partnership as a Limited Partner and ending five years there- after.” 8 The petitioner would also receive a share of any profits exceeding this 12-percent return. The partnership agreement explains that the percent- age return is computed on the basis of the total cash contributed at the time the distribution is made. In other words, the petitioner’s first annual distri- bution would be at least $14,400 (12 percent of $120,000, plus any addi- tional profits), his second annual distribution at least $16,560 (12 percent of $138,000), his third at least $18,720, his fourth at least $20,880, and his fifth at least $23,040. In effect, the $90,000 that the petitioner’s annual payment obligation represents would require very little in new, personal funds. To make his first annual payment of $18,000, the petitioner would have to contribute no more than $3,600 of his own funds to the $14,400 (or more) he would receive from the Partnership. To make his second payment, the petitioner would have to contribute no more than $1,440 of his own funds to the $16,560 he would receive from the Partnership. The petitioner’s third, fourth, and fifth payments, however, would be entirely covered by his guaranteed distribu- tions from the Partnership; in fact, the petitioner would be at least $8,640 ahead for these last three years.

根据申请人签署的投资协议第2B条，申请人必须进行五笔年度现金付款，每笔18,000美元，总计90,000美元，自其被接纳为合伙人之日起一年后开始。 然而，投资协议第3条规定：“我将获得对合伙企业的现金出资的回报，年利率为12%，每年支付，自本人被接纳为有限合伙人之日起一年后开始，至五年后结束。”8 申请人还将获得超过此12%回报的任何利润的份额。合伙协议解释称，百分比回报是根据分配时出资的现金总额计算的。换言之，申请人的首次年度分配至少为14,400美元（120,000美元的12%，加上任何额外利润），其第二次年度分配至少为16,560美元（138,000美元的12%），第三次至少为18,720美元，第四次至少为20,880美元，第五次至少为23,040美元。 实际上，申请人年度付款义务所代表的90,000美元将需要极少的新的个人资金。为了进行首次18,000美元的年度付款，申请人只需从合伙企业将获得的14,400美元（或更多）中出资不超过3,600美元的自有资金。为了进行第二次付款，申请人只需从合伙企业将获得的16,560美元中出资不超过1,440美元的自有资金。然而，申请人的第三、第四和第五次付款将完全由合伙企业保证的分配款覆盖；事实上，在这最后三年中，申请人将至少提前获得8,640美元。

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The petitioner’s obligation to make his annual payments is condi- tioned upon the Partnership making the guaranteed annual distributions to the petitioner. 9 As such, these annual payments do not constitute a con- tribution of capital. 10 The petitioner refers to the OGC memorandum of December 19, 1997, which had criticized the use of profits generated by a business to meet obli- gations under a promissory note. The petitioner contends that he is entitled to use his guaranteed return for whatever purpose he desires, and it would be absurd to segregate dividends or profits in a special account to guarantee that they would not be used to make payments on the note. The AAU does not at this time reach the issue of whether it is ever appro- priate for a business to distribute profits to an alien who still owes money to the business. The problem addressed here is that the annual returns are guar- anteed. The fact that title to that money changes hands does not change the essence of the transaction; as the director pointed out in his decision, the Partnership receives no infusion of new funds from the petitioner. Another problem with guaranteed annual distributions is the source of the distributions. As the petitioner concedes on page 70 of his brief, “[i]t is unlikely that the business will be immediately profitable from the lending activities contemplated by AELP and its credit corporation subsidiary.” Since there is never a guarantee that the Partnership will generate sufficient profits during any given year to pay each investor his 12-percent guaranteed distribution, the possibility exists that the distributions may be drawn from the contributions of future limited partners (thereby necessitating the acqui- sition of more and more limited partners) or from the contributions already made (thereby depleting the initial contributions). At pages 70 and 71 of his brief on behalf of the petitioner, counsel counters, “The payment of this guaranteed return is an obligation of the partnership which may or may not be met. If the partnership does not have the ability to make such annual payments, they will not be made.” As men- tioned earlier, this is directly contradicted by section 2.C of the investment agreement, which provides that the failure of the Partnership to make the

申请人进行年度付款的义务以合伙企业向申请人进行保证年度分配为条件。9 因此，这些年度付款不构成资本出资。10 申请人提及1997年12月19日的OGC备忘录，该备忘录批评了利用企业产生的利润来履行本票义务的做法。申请人主张，他有权将保证回报用于任何目的，将股息或利润隔离在特别账户中以确保它们不被用于偿还本票是荒谬的。 AAU目前不触及企业向仍欠企业款项的外国人分配利润是否适当的问题。此处涉及的问题是年度回报是保证的。该款项所有权转移的事实并不改变交易的本质；正如主任在其决定中指出的，合伙企业未从申请人处获得新资金注入。 保证年度分配的另一个问题是分配的来源。正如申请人在其辩护状第70页承认的那样，“企业不太可能从AELP及其信贷公司子公司设想的贷款活动中立即盈利。”由于从未保证合伙企业将在任何给定年份产生足够利润来向每位投资者支付其12%的保证分配，因此存在分配可能来自未来有限合伙人的出资（从而需要收购越来越多的有限合伙人）或来自已作出的出资（从而耗尽初始出资）的可能性。 在其代表申请人的辩护状第70和71页，律师反驳称，“支付此保证回报是合伙企业的义务，可能履行也可能不履行。如果合伙企业没有能力进行此类年度付款，则不会支付。”如前所述，这与投资协议第2.C条直接矛盾，该条规定合伙企业未能进行

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annual distributions is considered a breach of the Partnership’s obligations and will cause the petitioner not to have to make any further cash payments. The petitioner states that Service administrative case law exists sup- porting a petitioner’s application of guaranteed annual returns paid by a partnership toward meeting the petitioner’s obligation to make annual pay- ments to the partnership. The petitioner cites an unpublished AAU decision from 1995 involving the “C&W Hotel Management program.” While the center director’s decision in that case had referred to a provision in the busi- ness plan stating that four annual payments might come from the profits of the business, the center director did not note whether these so-called “prof- its” were in the form of guaranteed returns (which would then have no direct connection to profit, as discussed above), and he did not make any finding as to the propriety of this provision. Review of the AAU decision reveals no reference whatsoever to annual returns or annual payments. Therefore, it cannot be said that the AAU has specifically sanctioned the use of guaranteed annual returns toward meeting obligations to make annual payments. More significantly, the AAU decision in question was unpub- lished and has no binding precedential authority. 11 The petitioner points to an internal Service memorandum issued on October 20, 1997, by the Office of Adjudications. This memorandum stat- ed that in some cases, guaranteed interest payments were made through out- side loans or from capital contributed by other investors; as not all busi- nesses could be profitable immediately, a contractual provision for guaran- teed payments may, in certain cases, be consistent with a genuine invest- ment. 12 This memorandum was a general statement of policy and did not analyze any particular fact patterns. Indeed, the statements in the memo- randum were qualified with the words “may” and “in certain cases.” Given the confusing statements contained in the memorandum, and the lack of guidelines provided, this memorandum provides no assistance in resolving the present case. In short, because the petitioner is guaranteed annual distributions from the Partnership of at least 12-percent for five years, which would yield him $93,600, the petitioner’s five annual payments totalling $90,000 under the promissory note cannot be considered a qualifying contribution of capital. 13

年度分配被视为违反合伙企业的义务，并将导致申请人无需进行任何进一步的现金付款。 申请人称，存在支持申请人将合伙企业支付的保证年度回报用于履行申请人对合伙企业年度付款义务的服务的行政判例法。申请人引用了1995年涉及“C&W酒店管理项目”的未公布AAU决定。虽然该案中中心主任的决定提到商业计划中规定四笔年度付款可能来自企业利润的条款，但中心主任并未指出这些所谓的“利润”是否为保证回报形式（如上所述，这与利润没有直接联系），也未就该条款的适当性作出任何认定。审查AAU决定发现，其中完全没有提及年度回报或年度付款。因此，不能说AAU已特别批准使用保证年度回报来履行年度付款义务。更重要的是，所涉AAU决定未公布，不具有约束性先例权威。11 申请人指出1997年10月20日由裁决办公室发布的内部服务备忘录。该备忘录指出，在某些情况下，保证利息付款通过外部贷款或其他投资者出资的资本进行；由于并非所有企业都能立即盈利，保证付款的合同条款在某些情况下可能与真实投资一致。12 该备忘录是一般性政策声明，并未分析任何特定事实模式。实际上，备忘录中的陈述以“可能”和“在某些情况下”等词语加以限定。鉴于备忘录中包含的混乱陈述以及缺乏提供的指导方针，该备忘录对解决本案没有帮助。 简而言之，由于申请人保证从合伙企业获得至少12%的年度分配，为期五年，这将为他带来93,600美元，因此申请人在本票下总计90,000美元的五笔年度付款不能被视为合格的资本出资。13

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The petitioner has effectively shifted the risk of loss of the $90,000 from himself to the Partnership.

申请人实际上已将90,000美元的损失风险从自身转移给了合伙企业。

Section 4 of the investment agreement provides, “after the sixth anniversary of my admission to the Partnership, I, as a limited partner, may exercise a sell option under which I have the right to require the Partnership to purchase from me my limited partnership interest,” (empha- sis added). 14 The sell-option price is equal to the petitioner’s total con- tributed capital, less the first six payments, plus a pro rata share of profits. In other words, the sell-option price is $290,000 plus profits. Or, to look at it from the petitioner’s perspective, the price of permanent resident status is $116,400 minus profits; as discussed above, the five annual payments are more than fully covered by the annual distributions and do not require any expenditure on the part of the petitioner. At the same time, the Partnership may exercise a buy option for the same price. 15 Section 4 of the investment agreement specifies that the sell-option price is “payable as soon as the sell option is exercised.” Section 8.05C of the original partnership agreement, however, states that the price is payable 180 days after the exercise of the sell option. The revised partnership agree- ment, instead of conforming to the investment agreement, reiterates the 180-day deadline. While the Stage I amendments were intended to reflect the actual intent of the parties, the petitioner has not executed a new invest- ment agreement or otherwise indicated that he agrees with the new partner- ship agreement and is willing to wait 180 days. It is not clear whether the petitioner is obligated actually to make the last payment of $290,000 if he exercises his sell option; both his responsi- bility to pay and his right to sell ripen at the same time. Section 8.05C of the partnership agreement provides that once the Partnership pays the sell- option price, “all amounts owed under such Selling Limited Partner’s Investor Note shall be deemed satisfied by the Partnership...” Similarly, under section 8.06C, after the Partnership pays the buy-option price, “all

投资协议第4条规定：“在我获准加入合伙企业六周年之后，我作为有限合伙人可以行使卖出选择权，据此我有权要求合伙企业从我处购买我的有限合伙权益”（着重号为后加）。14 卖出选择权的价格等于申请人实缴出资总额减去前六期付款，加上按比例应得的利润份额。换言之，卖出选择权价格为290,000美元加利润。或者，从申请人的角度看，永久居民身份的价格是116,400美元减利润；如上所述，五期年度付款完全由年度分配款覆盖，无需申请人支出任何款项。同时，合伙企业可以以相同价格行使买入选择权。15 投资协议第4条规定，卖出选择权价格“在卖出选择权行使后即应支付”。然而，原合伙协议第8.05C条规定，该价格应在卖出选择权行使后180天支付。修订后的合伙协议未与投资协议保持一致，而是重申了180天的期限。虽然第一阶段修正案旨在反映当事人的真实意图，但申请人并未签署新的投资协议，也未以其他方式表示其同意新的合伙协议并愿意等待180天。 目前不清楚申请人若行使卖出选择权，是否实际有义务支付最后一笔290,000美元；其付款义务与出售权同时到期。合伙协议第8.05C条规定，一旦合伙企业支付卖出选择权价格，“该出售有限合伙人的投资者票据项下所欠的所有款项应视为已由合伙企业清偿……”同样，根据第8.06C条，在合伙企业支付买入选择权价格后，“所有

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amounts due and owing under the Investor Note shall be discharged by the Partnership...” It is not known what amount would still be owed if the peti- tioner is obligated to pay the $290,000 prior to the exercise of the buy or sell option. If the petitioner can avoid making this last payment by exercis- ing his sell option, this amount of $290,000 cannot be considered to have been placed at risk. Even if the petitioner is obligated to make this balloon payment prior to exercising his sell option, the $290,000 still cannot be said to be at risk because it is guaranteed to be returned, regardless of the success or failure of the business. If the investment agreement executed by the petitioner is controlling, then the moment he made this last payment, the petitioner could exercise his sell option, and the money would be immediately returned; the amount of $290,000 would never be at risk. If the partnership agreement is controlling, then the petitioner’s agreement to make this pay- ment of $290,000 is, in essence, a debt arrangement in which he provides funds in exchange for an unconditional, contractual promise that it will be repaid later at a fixed maturity date (six months later). Such an arrangement is specifically prohibited by the regulations. See 8 C.F.R. § 204.6(e). In its opinion dated December 19, 1997, OGC engaged in a lengthy discussion of the factors evidencing debt and equity in the context of tax law; the opinion cited various tax cases and concluded that the debt charac- teristics of a plan such as AELP’s outweighed any equity characteristics. The AAU finds such a discussion unnecessary and not particularly helpful with respect to this matter. The considerations at issue here are not the same as those of a court attempting to ascertain whether a business is attempting to evade taxes. Furthermore, the businesses examined in those tax cases were standard businesses not created for the purpose of enabling aliens to obtain immigration benefits. As counsel conceded at oral argument, poten- tial alien investors are

投资者票据项下到期应付的所有款项应由合伙企业解除……”目前不知道如果申请人有义务在行使买入或卖出选择权之前支付290,000美元，届时仍将欠付多少款项。如果申请人可以通过行使卖出选择权避免支付这最后一笔款项，则这290,000美元不能被视为处于风险之中。 即使申请人有义务在行使卖出选择权之前支付这笔气球付款，这290,000美元仍不能说是处于风险之中，因为无论企业成功与否，该款项都保证会被返还。如果申请人签署的投资协议具有控制力，那么在他支付这最后一笔款项的那一刻，申请人就可以行使卖出选择权，款项将立即被返还；这290,000美元永远不会处于风险之中。如果合伙协议具有控制力，那么申请人同意支付这290,000美元，实质上是一种债务安排，即他提供资金，以换取一项无条件的合同承诺，即在固定的到期日（六个月后）偿还。此类安排为法规所明确禁止。见8 C.F.R. § 204.6(e)。 在1997年12月19日的意见中，OGC在税法背景下对证明债务和权益的因素进行了冗长的讨论；该意见引用了各种税务案件，并得出结论认为，诸如AELP的计划所具有的债务特征超过了任何权益特征。AAU认为此种讨论没有必要，且对此事项并无特别帮助。此处所涉的考量与法院试图确定企业是否试图逃税时的考量并不相同。此外，那些税务案件中审查的企业是为使外国人获得移民福利而设立的标准企业之外的普通企业。正如律师在口头辩论中所承认的，潜在的外国投资者

In other words, AELP has created a program to which most people would be unwilling to subscribe. 16 A discussion of the numerous debt and equity factors set forth in the tax cases unnecessarily complicates the

换言之，AELP创建了一个大多数人都不愿参与的计划。16 对税务案件中提出的众多债务和权益因素的讨论，不必要地使

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attempt to ascertain the true substance of the transaction. Very simply, the payment of the $290,000 constitutes a straight loan; the petitioner would be making this money available to AELP with the contractual expectation that it would be returned to him six months later. The risk that the petitioner might not receive payment if the Partnership fails is no different from the risk any business creditor incurs. Counsel states on page 30 of his brief on behalf of the petitioner, “The payment of the sell-option price was dependent upon the Partnership’s abil- ity and willingness to pay. Thus, substantial risk existed in that the Partnership might be unable or unwilling to pay the investor.” At oral argument, counsel claimed that the redemption provisions were entirely unenforceable; no partner could bring a lawsuit to enforce them. Aside from the question of why not, counsel’s statements raise questions of good faith. For AELP to entice aliens to invest in AELP by promising them redemption rights, but then for counsel (who is counsel for both AELP and the peti- tioner) to suggest in his brief that AELP might not be “willing” to honor the redemption rights, and to add at oral argument that the redemption provi- sions are not enforceable anyway, is disturbing. While most normal investors in the business world realize that they risk losses due to business downturns, the aliens participating in AELP may not realize that their attor- ney believes that their risk instead involves the refusal of their attorney’s other client to comply with the written contract it executed with them. The Service cannot endorse illusory promises and does not recognize this type of “risk” as the kind of risk contemplated by 8 C.F.R. § 204.6(j)(2). More importantly, the AAU must look to the plain language of the doc- uments executed by the petitioner and not to subsequent statements of coun- sel; these documents provide the petitioner with the right to redemption and a certain price. As mentioned earlier, section 2.C of the investment agree- ment specifies that the failure of AELP to pay the sell-option price consti- tutes a breach of AELP’s obligations to its limited partners. In its memorandum of September 10, 1993, OGC stated its opinion at page 8 that it was “entirely appropriate for an alien to enter into an agree- ment with the investment fund whereby the seller agrees to repurchase the investor’s shares upon, but not before, removal of the conditional basis of the alien’s permanent residence.” OGC qualified this statement by adding that such a redemption agreement “may not be used as a vehicle to avoid or reduce the risk of capital loss to the alien investor during the two-year peri- od of conditional residency.” To ensure that the capital remained at risk dur- ing the two-year period, OGC believed that the repurchase agreement should expressly provide that the price of the shares to be resold could not exceed the fair market value of the shares at the time of repurchase; “[a]ny other repurchase arrangement would impermissibly shift the risk of loss from the investment from the alien to the party promising to buy back the alien’s interest in the investment.” In a subsequent memorandum dated

确定交易真实实质的尝试变得复杂。非常简单地讲，支付290,000美元构成一笔直接贷款；申请人将把这笔钱提供给AELP，并具有合同上的预期，即六个月后该款项将返还给他。如果合伙企业失败，申请人可能收不到款项的风险，与任何企业债权人承担的风险并无不同。 律师在其代表申请人提交的辩护状第30页指出：“卖出选择权价格的支付取决于合伙企业的支付能力和意愿。因此，存在重大风险，即合伙企业可能无法或不愿向投资者付款。”在口头辩论中，律师声称赎回条款完全不可执行；任何合伙人都不能提起诉讼以执行这些条款。除了为何不可执行的问题之外，律师的陈述还引发了诚信问题。AELP通过向外国人承诺赎回权来诱使其投资AELP，但随后律师（同时是AELP和申请人的律师）却在辩护状中暗示AELP可能不“愿意”履行赎回权，并在口头辩论中补充说赎回条款无论如何都不可执行，这令人不安。虽然商业世界中的大多数普通投资者都意识到他们因商业低迷而面临损失风险，但参与AELP的外国人可能并未意识到，他们的律师认为他们的风险反而在于其律师的另一客户拒绝遵守与其签署的书面合同。移民局不能认可虚假承诺，也不承认此类“风险”属于8 C.F.R. § 204.6(j)(2)所设想的那类风险。 更重要的是，AAU必须审视申请人所签署文件的字面语言，而不是律师的后续陈述；这些文件赋予申请人赎回权和确定的价格。如前所述，投资协议第2.C条规定，AELP未能支付卖出选择权价格构成AELP对其有限合伙人义务的违反。 在1993年9月10日的备忘录中，OGC在第8页陈述其意见认为，“外国人与投资基金签订协议，由卖方同意在外国人永久居留权的附条件基础被取消之时（而非之前）回购投资者的股份，是完全适当的。”OGC对此陈述作了限定，补充说此类赎回协议“不得被用作在两年附条件居留期内避免或减少外国投资者资本损失风险的工具”。为确保资本在两年期内仍处于风险之中，OGC认为回购协议应明确规定，拟转售股份的价格不得超过回购时股份的公允市场价值；“[任]何其他回购安排都会将投资损失风险从外国人身上不可允许地转移给承诺买回外国人在投资中权益的一方。” 在随后日期为

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June 27, 1995, OGC explained at page 10 that such a redemption agreement was permissible “since the alien risks losing all or part of his own capital in the event the fair market value of the investment has fallen at the time of the repurchase.” The AAU does not entirely agree with the opinions of OGC. To enter into a redemption agreement at the time of making an “investment” evi- dences a preconceived intent to unburden oneself of the investment as soon as possible after unconditional permanent resident status is attained. This is conceptually no different from a situation in which an alien marries a U.S. citizen and states, in writing, that he will divorce her in two years. The focus here is on the green card and not on the business. Despite counsel’s repeat- ed claims that the Service’s current position is hurting U.S. workers and U.S. businesses, and despite counsel’s accusations regarding the Service’s allegedly cavalier attitude toward them, one could argue that an alien who enters into a redemption agreement considers the continued success of the U.S. workers and U.S. businesses secondary. His primary concern is obtain- ing permanent resident status for as little money as possible. For the alien’s money truly to be at risk, the alien cannot enter into a partnership knowing that he already has a willing buyer in a certain num- ber of years, nor can he be assured that he will receive a certain price. Otherwise, the arrangement is nothing more than a loan, albeit an unse- cured one. The fair-market-value limitation on the sale price referenced by OGC, while well-intended, is not workable. It is not clear how this fair market value would be determined. For example, at page 31 of his brief on behalf of the petitioner, counsel discusses the two five-year payment options offered by AELP prior to the offering of the $120,000 option subscribed to by this petitioner. “Since the AELP sell-option prices were either $150,000 or $140,000 less than the $500,000 cash contribution recently completed, it seemed obvious that the sell-option prices would be substantially below fair market value.” The only reason this would be “obvious” would be if coun- sel already knew what the fair market value would be in five years. True fair market value cannot be known five years in advance. Fair market value assumes the existence of a market. In this case, no public market exists for the AELP partnership interest. The sale of the partnership interest would not be an arms-length transaction, and the valuation of the parties would not reflect a true fair market value. The AAU does not find that an alien investor may never sell back his partnership interest. Rather, the AAU finds that, prior to completing all his cash payments under a promissory note (whether to the partnership or to some third-party lender), an alien investor may not enter into any agreement granting him the right to sell his interest back to the partnership. In no event may he enter into such an agreement prior to the end of the two-year peri- od of conditional residence. An investment assumes that a risk exists. The

1995年6月27日，OGC在第10页解释说，此类赎回协议是允许的，“因为如果回购时投资的公平市场价值已经下跌，该外国人将面临损失其全部或部分自有资本的风险。” AAU不完全同意OGC的意见。在作出“投资”时即订立赎回协议，表明了一种预谋意图，即在获得无条件永久居民身份后尽快摆脱该投资。这在概念上与以下情形并无不同：一名外国人与美国公民结婚，并书面声明他将在两年后与她离婚。此处的焦点在于绿卡，而非企业。尽管律师反复声称移民局目前的立场正在损害美国工人和美国企业，也尽管律师指控移民局对他们据称态度轻率，人们可以争辩说，订立赎回协议的外国人认为美国工人和美国企业的持续成功是次要的。他的首要关切是以尽可能少的钱获得永久居民身份。 要使该外国人的资金真正处于风险之中，该外国人不能在明知自己已有确定的买家将在若干年后接手的情况下加入合伙企业，也不能被保证将获得某一确定价格。否则，该安排不过是一笔贷款，尽管是一笔无担保贷款。 OGC提到的对出售价格的公平市场价值限制，虽然用意良好，但不可行。目前不清楚这一公平市场价值将如何确定。例如，在其代表申请人提交的辩护状第31页，律师讨论了AELP在本申请人认购的120,000美元选项提出之前所提供的两个五年付款选项。“由于AELP的出售选项价格比最近完成的500,000美元现金出资分别低150,000美元或140,000美元，出售选项价格将大幅低于公平市场价值似乎显而易见。”这之所以会“显而易见”，唯一的原因是律师已经知道五年后的公平市场价值将是多少。真正的公平市场价值无法提前五年得知。公平市场价值假定存在市场。在本案中，AELP合伙权益不存在公开市场。合伙权益的出售不会是公平交易，双方的估值也不会反映真正的公平市场价值。 AAU并不认为外国投资者永远不能将其合伙权益卖回。相反，AAU认为，在完成其根据期票（无论是向合伙企业还是向某些第三方贷款人）支付的全部现金之前，外国投资者不得订立任何授予其将权益卖回合伙企业的权利的协议。在任何情况下，他不得在两年条件居留期结束之前订立此类协议。投资假定存在风险。该

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alien must go into the investment not knowing for sure if he will be able to sell his interest at all after he obtains his unconditional permanent resident status; and if he is successful in selling his interest, the sale price may be disappointingly low (or surprising high and more than what he paid), This way, the alien risks both gain and loss. To allow otherwise transforms the arrangement into a loan. 17 The petitioner contends that the AAU, in the unpublished C&W deci- sion from 1995, had previously considered the issue of whether a structure identical to AELP’s constituted a debt arrangement. According to the peti- tioner, the Vermont Service Center had found that the plan in question appeared to represent a good-faith commitment on a debt agreement, and representatives of the AAU “advised that they had analyzed the investment agreements and had concluded that the C&W program did not constitute a debt arrangement.” “The C&W decision reversing the Vermont Service Center and ordering that the petitions be approved rejects the argument that this structure constitutes a debt arrangement,” the petitioner continues. The petitioner misreads the decisions. The Vermont Service Center’s statement regarding a “good faith commitment on a debt agreement” was a reference to a comment in the Federal Register from someone suggesting that the Service “should state in the regulations that a good faith commit- ment on a debt agreement, which is secured by the alien entrepreneur’s assets, should suffice to meet the requirement that the alien entrepreneur has, in good faith, substantially met the capital investment requirement...” (emphasis added). In other words, the “debt agreement” referred to by the Vermont Service Center was the promissory note executed by the petition- er, who had agreed to make cash payments to the partnership; as such, the “debt” at issue was the petitioner’s debt to the partnership, not the partner- ship’s subsequent debt to the petitioner. Neither the center decision nor the AAU decision specifically considered whether the investment structure at issue involved a prohibited debt arrangement (i.e., loan) as is at issue here. Neither decision made reference to a sell option. The petitioner points to another program, which he calls the “Pardini/Tony Roma program.” According to the petitioner’s counsel, the California Service Center stated, in a notice of intent to deny, that the effect of the partnership arrangement appeared to be “a series of loans called investments made by the Limited Partners, the foreign investors, to the General Partner who is to be repaid by the General Partners at 10% inter- est.” Brief at 54. Counsel claims that, in his response, he set forth the AAU decision in C&W; “[t]he AAU’s rejection of the debt arrangement argument proved persuasive to the California Service Center, which in turn rejected

外国人必须在不确知自己在获得无条件永久居民身份后究竟能否出售其权益的情况下进行投资；而如果他成功出售其权益，出售价格可能令人失望地低（或令人惊讶地高，高于他所支付的金额）。这样，该外国人既承担收益风险也承担损失风险。允许相反做法会将安排转变为贷款。17 申请人主张，AAU在1995年未公布的C&W决定中，曾考虑过与AELP相同的结构是否构成债务安排的问题。据申请人称，佛蒙特服务中心曾认定，所涉计划似乎代表对债务协议的善意承诺，且AAU的代表“告知他们已分析投资协议并得出结论，C&W计划不构成债务安排”。申请人继续称：“C&W决定推翻了佛蒙特服务中心并命令批准申请，该决定驳回了此种结构构成债务安排的论点。” 申请人误读了这些决定。佛蒙特服务中心关于“对债务协议的善意承诺”的陈述，是对《联邦公报》中某人评论的引用，该评论建议移民局“应在法规中规定，由外国企业家资产担保的对债务协议的善意承诺，应足以满足外国企业家已善意实质满足资本投资要求的规定……”（着重号为原文所加）。换言之，佛蒙特服务中心所指的“债务协议”是申请人签署的期票，申请人已同意向合伙企业支付现金；因此，所涉“债务”是申请人对合伙企业的债务，而非合伙企业随后对申请人的债务。无论是中心决定还是AAU决定，均未具体考虑所涉投资结构是否涉及本案所涉的被禁止的债务安排（即贷款）。两项决定均未提及出售选项。 申请人指出另一个项目，他称之为“Pardini/Tony Roma项目”。据申请人的律师称，加利福尼亚服务中心在意图拒绝通知中表示，合伙安排的效果似乎是“有限合伙人即外国投资者向普通合伙人提供的一系列称为投资的贷款，普通合伙人将以10%的利息偿还。”辩护状第54页。律师声称，在其答复中，他陈述了AAU在C&W中的决定；“AAU对债务安排论点的驳回被证明对加利福尼亚服务中心具有说服力，该中心随后驳回了

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the ‘debt’ argument and approved the Pardini/Tony Roma investor peti- tions.” As noted above, the AAU’s C&W decision did not address the issue of loans extended by the limited partners to the partnership. Therefore, the California Service Center would have been in error if it had relied on the C&W decision to conclude that the Tony Roma plan did not involve an impermissible debt arrangement. Moreover, the C&W decision was unpub- lished and, even if it were relevant to Tony Roma or to this case, would not have any binding precedential value. Furthermore, even if the Service has, in the past, approved petitions that contained redemption agreements, these approvals were in error because the Service now recognizes that such agree- ments are in fact debt arrangements.

‘债务’论点并批准了Pardini/Tony Roma投资者申请。” 如上所述，AAU的C&W决定并未处理有限合伙人向合伙企业提供贷款的问题。因此，如果加利福尼亚服务中心依据C&W决定得出结论认为Tony Roma计划不涉及不允许的债务安排，那将是错误的。此外，C&W决定未公布，即使它与Tony Roma或本案相关，也不具有任何有约束力的先例价值。再者，即使移民局过去曾批准包含赎回协议的申请，这些批准也是错误的，因为移民局现在认识到此类协议实际上是债务安排。

This statement makes no sense and certainly does not support the peti- tioner’s contentions. The petitioner characterizes this memorandum as “all- important”; far from being “all-important,” this memorandum was meant only to provide general policy statements, not to analyze specific fact patterns. 18 As far as the petitioner’s criticism that the Texas Service Center’s deci- sion in this case failed to mention, distinguish, or explain away the above prior decisions and OGC opinions, it is not clear why the center director would reference them at all. Neither of the above decisions had any prece- dential value, and neither case originated from the Texas Service Center. OGC memoranda, as counsel himself stated after oral argument, are mere- ly opinions. OGC is not an adjudicative body and is in the position only of being an advisor; as such, adjudicators are not bound by OGC recommen- dations. See 8 C.F.R. § 103.1(b)(1). Because the petitioner here has entered into an agreement to pay $290,000 in exchange for a promise that he can receive the $290,000 back six months later, he has in effect entered into a debt arrangement as prohib- ited by 8 C.F.R. § 204.6(e). 19 The $290,000 cannot be considered to have been properly “invested” and is not at risk.

这一陈述毫无意义，当然也不支持申请人的主张。申请人将该备忘录描述为“至关重要”；该备忘录远非“至关重要”，它仅旨在提供一般政策声明，而非分析具体事实模式。18 至于申请人批评德克萨斯服务中心在本案中的决定未提及、区分或解释上述先前决定和OGC意见，目前不清楚中心主任为何会提及它们。上述两项决定均无任何先例价值，且两案均非源自德克萨斯服务中心。正如律师本人在口头辩论后所述，OGC备忘录仅仅是意见。OGC不是裁决机构，仅处于顾问地位；因此，裁决者不受OGC建议的约束。见8 C.F.R. § 103.1(b)(1)。 由于本案申请人已订立协议支付290,000美元，以换取其可在六个月后收回该290,000美元的承诺，他实际上已订立8 C.F.R. § 204.6(e)所禁止的债务安排。19该290,000美元不能被视为已适当“投资”，且不处于风险之中。

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The definitions section and section 4.04 of the original partnership agreement state that the general partner may deposit portions of the limited partners’ capital contributions, designated as “reserve funds,” in escrow or sub-escrow accounts. According to section 4.04.A(i) of the agreement, the banks holding these accounts shall invest the funds “in securities or other financial instruments and obligations in amounts sufficient to satisfy the requirements of Section 8.05,” (emphasis in original). Section 4.04.B adds that the general partner “shall deposit with the Banks from the Initial Cash Payments sufficient Reserve Funds to satisfy the Partnership obligations under Section 8.05 and to defray such costs and expenses of the Partnership as determined by the General Partner,” (emphasis in original), Section 8.05 of the partnership agreement is entitled “Limited Partner Sell Option” and sets forth the timing and price of the sell option. Section 4.03.B explains that after all the requirements of section 4.04.B are satisfied, any funds remaining from the initial cash payments and all subsequent capital contributions may be used to meet the obligations of the Partnership, as determined by the general partner in its sole discretion, with any excess to be used in the business of the Partnership. In other words, pursuant to the above sections of the original partner- ship agreement, the general partner would be obligated to deposit sufficient portions of the initial $120,000 and/or the remaining $380,000 into the reserve funds such that the deposits and their earnings (from securities or other financial instruments) would enable the Partnership to fulfill its own obligations to buy back Partnership interests. The creation and maintenance of these reserve funds take priority over any other use of the capital contri- butions. Under these terms, any leftover money would be used for other Partnership obligations, and whatever was left thereafter would then be used for business activities. As the director stated in his decision, these reserve funds are, by agreement, not available for purposes of job creation and therefore cannot be considered capital placed at risk for the purpose of generating a return on the capital being placed at risk. In his brief, the petitioner claims, “It is estimated in the business plans of AEP [the general partner] that no more than 10% of the total amount invested will ever be placed in bank accounts as reserves.” The petitioner argues that since the sell-option price is $290,000, the initial payment of $120,000 and the installment payments totalling $90,000 would never become the subject of reserve accounts because they would yield an insufficient amount ($210,000) to cover the sell-option price. As such, these payments would be able to be used fully by the Partnership. Furthermore, the petitioner points out that if all of the limited partners’ initial contributions and annual payments had been withheld as cash reserves, the subsidiary credit corporation could not have extended the

原合伙协议的定义部分和第4.04条规定，普通合伙人可以将有限合伙人出资中指定为“储备资金”的部分存入托管账户或次级托管账户。根据协议第4.04.A(i)条，持有这些账户的银行应将该等资金“投资于证券或其他金融工具及债务，其金额足以满足第8.05条的要求”（原文强调）。第4.04.B条补充规定，普通合伙人“应从初始现金付款中向银行存入足够的储备资金，以满足合伙在第8.05条项下的义务，并支付普通合伙人确定的合伙的该等成本和费用”（原文强调）。合伙协议第8.05条标题为“有限合伙人出售选择权”，规定了出售选择权的时间安排和价格。 第4.03.B条解释称，在第4.04.B条的所有要求得到满足后，初始现金付款及所有后续出资中剩余的任何资金可用于履行合伙的义务，由普通合伙人自行全权决定，任何超出部分应用于合伙的业务。 换言之，根据原合伙协议的上述条款，普通合伙人有义务将初始120,000美元和/或剩余380,000美元中足够的部分存入储备资金，以使存款及其收益（来自证券或其他金融工具）能够使合伙履行其回购合伙权益的自身义务。该等储备资金的设立和维持优先于出资的任何其他用途。根据这些条款，任何剩余资金将用于其他合伙义务，此后剩余的任何资金将用于业务活动。正如主任在其决定中所述，根据协议，该等储备资金不可用于创造就业的目的，因此不能被视为为产生所投入资本回报之目的而置于风险中的资本。 申请人在其简报中主张：“AEP[普通合伙人]的商业计划中估计，投资总额中不超过10%将作为储备存入银行账户。”申请人辩称，由于出售选择权价格为290,000美元，120,000美元的初始付款和总计90,000美元的分期付款永远不会成为储备账户的对象，因为它们产生的金额（210,000美元）不足以覆盖出售选择权价格。因此，这些付款能够被合伙完全使用。此外，申请人指出，如果所有有限合伙人的初始出资和年度付款均被作为现金储备留存，则附属信贷公司无法发放其已发放的

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loans that it has. 20 First, the partnership agreement states that the reserve funds are sup- posed to be invested in securities and other financial instruments, so the amount withheld from the capital contributions would not necessarily have to be $290,000. Second, the reserve provisions do not say that the reserves deducted from the contributions of a limited partner must be used to pay the sell-option price to that same limited partner; reserves drawn from later partners could conceivably be used to help pay the sell-option price to ear- lier partners. Third, the reserve provisions probably have more significance as far as the final balloon payment of $290,000 than with respect to the initial pay- ments. This final payment might have to be returned to the limited partner within six months, and the Partnership has a contractual obligation under sections 4.04.A(i) and 4.04.B to reserve sufficient funds to meet its redemp- tion obligation of $290,000. 21 This is assuming, of course, that the partner- ship agreement is controlling; if the investment agreement executed by the petitioner is controlling, the money would be returned immediately instead of six months later. In his brief, the petitioner states that in 1992 a Service official had delivered to counsel a model EB-5 investor petition that had been approved; at oral argument, counsel added that he was assured that if he followed this model petition, his petitions would also be approved. According to the peti- tioner, the one million dollars in capital invested in that case “would create reserves for inventory, working capital, expansion, and other partnership expenses, in the sum of $450,000. Thus, the model petition established that $450,000 of the $1,000,000 to be invested, or 45%, would be set aside as bank reserves.” The record does not contain a copy of this “model petition,” and the AAU cannot ascertain whether the cash reserves in that case were manda- tory or inadvertent, temporary or long-term. The opinions of one Service official, moreover, cannot work to remove from the AAU’s jurisdiction the authority to review individual cases. See 8 C.F.R. § 103.1(f)(3)(iii), The Service does not pre-adjudicate investor petitions; 22 each petition must be adjudicated on its own merits. The fact that a particular petition (which did not result in a precedent decision) was considered qualifying in 1992, when the Service was less experienced with these types of cases, has no bearing

贷款。20 第一，合伙协议规定储备资金应投资于证券和其他金融工具，因此从出资中留存的金额不一定必须是290,000美元。第二，储备条款并未规定从某一有限合伙人出资中扣除的储备必须用于向该同一有限合伙人支付出售选择权价格；从后来合伙人处提取的储备可以设想用于帮助向较早合伙人支付出售选择权价格。 第三，就最终一次性付款290,000美元而言，储备条款可能比就初始付款而言具有更大的意义。该最终付款可能必须在六个月内返还给有限合伙人，且合伙根据第4.04.A(i)条和第4.04.B条负有合同义务，须储备足够资金以履行其290,000美元的赎回义务。21 当然，这是假设合伙协议具有控制力；如果申请人签署的投资协议具有控制力，则资金将立即返还而非六个月后返还。 申请人在其简报中称，1992年一名移民局官员曾向律师提供了一份已获批准的EB-5投资移民申请范本；在口头辩论中，律师补充称，他得到保证，如果他遵循该范本申请，其申请也将获得批准。据申请人称，该案中投资的一百万美元资本“将创造用于库存、营运资金、扩张和其他合伙费用的储备，金额为450,000美元。因此，该范本申请确立，在拟投资的1,000,000美元中，有450,000美元，即45%，将作为银行储备留存。” 记录中不包含该“范本申请”的副本，行政上诉单位无法确定该案中的现金储备是强制性的还是非故意的、是临时的还是长期的。此外，一名移民局官员的意见不能使行政上诉单位丧失审查个案的主管权。参见8 C.F.R. § 103.1(f)(3)(iii)。移民局不对投资移民申请进行预先裁决；22 每份申请必须根据其自身案情进行裁决。某一特定申请（未产生先例决定）在1992年移民局对此类案件经验较少时被认为符合资格，这一事实与本案所涉储备条款是否也应被视为符合资格无关

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on whether the reserve provisions in question here should also be consid- ered qualifying.

本案所涉储备条款是否也应被视为符合资格。

Therefore, he states, pursuant to Stage I amendments the reserve provi- sions have since been eliminated. The plain language of section 4.04.B of the original partnership agree- ment, however, clearly states that the general partner “shall” deposit suffi- cient reserves for the purpose of enabling the Partnership to meet its obli- gations under the sell-option agreement; the reference to the section per- taining to the sell option is even in bold face. It is difficult to imagine what the intent of this provision could be other than to require the creation and maintenance of reserves for such purpose. The assertion that the deletion of the reserve provisions is a Stage I amendment is not well taken; this revi- sion does not conform the partnership agreement to the investment agree- ment executed by the petitioner and is a material change in position from the original partnership agreement. It is more in the nature of an unaccept- able Stage II amendment. 23 (See earlier discussion of revisions to the part- nership agreement.) Even if the issue of cash reserves were the sole ground for denial, the elimination of the cash-reserve requirement could not form the basis of an approval of this petition.

因此，他表示，根据第一阶段修订，储备条款此后已被删除。 然而，原合伙协议第4.04.B条的明确措辞清楚规定，普通合伙人“应”存入足够的储备，以使合伙能够履行其在出售选择权协议项下的义务；对涉及出售选择权条款的引用甚至以粗体显示。很难想象该条款的意图除了要求为此目的设立和维持储备之外还能是什么。关于删除储备条款属于第一阶段修订的主张不能成立；该修订并未使合伙协议与申请人签署的投资协议相一致，且属于对原合伙协议立场的重大变更。它更属于不可接受第二阶段修订的性质。23（参见前文关于合伙协议修订的讨论。）即使现金储备问题仅是拒绝的唯一理由，消除现金储备要求也不能构成本申请获批的基础。

As stated in 8 C.F.R. § 204.6(e), all capital must be valued at fair mar- ket value in United States dollars. Counsel claims that the petitioner has made a capital contribution of $500,000 because he has executed a promis- sory note for $500,000. One issue to be examined when determining the fair market value of a promissory note is whether it is adequately secured. According to the Secured Promissory Note executed by the petitioner on October 14, 1997, the obligation of the petitioner to make payments is secured by the petitioner’s personal assets, “which are identified in the Attachment hereto.” The promissory note does not include any document entitled “Attachment,” although the record does contain a Summary of Bank Account Balances. This summary does not specify that the bank

如8 C.F.R. § 204.6(e)所述，所有资本必须以美元按公平市场价值估值。律师主张，申请人已出资500,000美元，因为他签署了一份500,000美元的本票。在确定本票的公平市场价值时需审查的一个问题是其是否获得充分担保。 根据申请人于1997年10月14日签署的担保本票，申请人的付款义务由其个人资产担保，“该等资产在本票附件中列明”。该本票不包含任何题为“附件”的文件，尽管记录中确实包含一份银行账户余额摘要。该摘要未指明该银行

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accounts listed are securing the note. The summary and accompanying bank statements verify that the peti- tioner’s accounts at Sumitomo Bank in Japan contained a total of $42,376.70 as of October 3, 1997; the petitioner’s savings accounts at Sanwa Bank in Japan contained a total of $500,558.60 as of October 6, 1997; the petitioner’s checking account at Sanwa Bank in California con- tained $70,985.80 as of October 10, 1997; and the petitioner’s account at South Bay Bank in California contained $51,500 as of October 14, 1997. The Summary states that these accounts represent a total of $665,421.10 in funds. 24 Assuming, arguendo, that the bank accounts do constitute the security for the promissory note, the petitioner has not demonstrated how AELP could reach the funds in the overseas accounts if the petitioner were to default, and it is not clear what expenses and effort would be involved. In the absence of such information, and in the absence of any details regard- ing the laws of Japan and the enforceability, by U.S. entities, of security interests taken in Japanese bank accounts, the petitioner has failed to estab- lish that the security interest in the foreign accounts has any value. More importantly, funds in bank accounts can easily be dissipated. As none of the above accounts is, for example, an escrow account or trust account in favor of AELP, no guarantee exists that the money contained in the accounts would remain there for the entire six years over which the peti- tioner would be obligated to make payments on the promissory note. For this reason, too, the petitioner has failed to show that his promissory note is adequately secured. The fair market value of a promissory note also depends on the terms of the note itself. The petitioner contends that the promissory note at issue here is for $500,000, not $380,000; he urges the Service not to view his con- tribution as an initial payment of $120,000, plus annual payments totalling $90,000, plus a balloon of $290,000. The petitioner states that the regula- tions allow him either to have already invested or to be in the process of investing the requisite amount of capital. Therefore, the petitioner could either pay all $500,000 now or pay it over time. The regulations do not require that a petitioner pay extra to compensate for the fact that money paid now is worth more than money paid later, he argues. The petitioner points out that, at the time an alien investor seeks to remove the conditions of his permanent resident status, he need only demonstrate that he has “sub- stantially” complied with the investment requirement. The petitioner main-

所列账户为该票据提供担保。 摘要及随附的银行对账单证明，截至1997年10月3日，申请人在日本住友银行的账户共包含42,376.70美元；截至1997年10月6日，申请人在日本三和银行的储蓄账户共包含500,558.60美元；截至1997年10月10日，申请人在加利福尼亚州三和银行的支票账户包含70,985.80美元；截至1997年10月14日，申请人在加利福尼亚州南湾银行的账户包含51,500美元。摘要称这些账户合计代表665,421.10美元的资金。24 假设（arguendo）银行账户确实构成期票的担保，申请人并未证明如果申请人违约，AELP如何能够取得海外账户中的资金，也不清楚将涉及何种费用和努力。在缺乏此类信息的情况下，并且缺乏关于日本法律以及美国实体对日本银行账户所设担保权益的可执行性的任何细节，申请人未能证明外国账户中的担保权益具有任何价值。 更重要的是，银行账户中的资金很容易被挥霍。例如，上述账户均不是以AELP为受益人的托管账户或信托账户，因此不存在保证账户中的资金将在申请人有义务按期票付款的整整六年内留在那里的保障。也正因如此，申请人未能证明其期票获得了充分担保。 期票的公允市场价值还取决于票据本身的条款。申请人主张，此处的期票金额为500,000美元，而非380,000美元；他敦促移民局不要将其出资视为120,000美元的首付款，加上总额90,000美元的年度付款，加上290,000美元的期末整付。申请人称，法规允许他已经投资或正在投资所需金额的资本。因此，申请人可以现在支付全部500,000美元，也可以分期支付。他辩称，法规并不要求申请人额外支付以补偿现在支付的钱比以后支付的钱更有价值这一事实。申请人指出，在外籍投资者寻求解除其永久居民身份条件时，他只需证明他“实质上”遵守了投资要求。申请人

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tains that by delivering the executed promissory note for the full $500,000, he has already made the full investment, and the schedule of payments is irrelevant. The petitioner has failed to demonstrate that his promissory note, if it is to be considered capital, has a fair market value equal to its face value of $500,000. The question to be asked is what a third party would pay for the petitioner’s note. In the real business world, promissory notes, such as mort- gages, are regularly sold and are regularly discounted; present value is always relevant. The petitioner has submitted no evidence whatsoever as to the fair market value of his promise to finish paying $500,000 over six years. 25 In fact, applying standard formulae for computing the fair market value of annuities and future payments, the present value of five annual pay- ments of $18,000 plus a payment due in six years of $290,000 plus a com- pleted payment of $120,000 would be approximately $375,000 instead of $500,000. 26 Under certain circumstances, a promissory note that does not itself con- stitute capital could instead constitute evidence that the petitioner is “in the process of investing” other capital, such as cash. In that situation, 8 C.F.R. § 216.6(c)(1)(ii) requires that a petitioner substantially complete his pay- ments on the note prior to the end of the two-year conditional period. In the present case, however, the promissory note is not evidence that the peti- tioner is in the process of investing $500,000 of cash. As discussed earlier, the five $18,000 annual payments are covered by the guaranteed annual dis- tributions. The $290,000 balloon payment is not due until well after the two-year period. In administering this program, the Service has a responsibility to ensure that the requisite amount of money is actually paid by the petitioners. Over the years, the Service has observed that the terms of promissory notes have grown progressively longer; AELP, for example, started with due dates of four and five years, while the petitioner’s payment plan, a more recent AELP development, involves six years. The schedule of payments under a promissory note, whether the note is used as capital or as evidence of a

主张，通过交付全额500,000美元的已签署期票，他已经完成了全部投资，付款时间表无关紧要。 申请人未能证明，如果其期票被视为资本，该期票的公允市场价值等于其500,000美元的面值。应当问的问题是第三方会为申请人的票据支付多少。在真实商业世界中，期票（如抵押贷款）经常被出售并经常被折价；现值始终是相关的。申请人未提交任何证据证明其在六年内付清500,000美元的承诺的公允市场价值。25 事实上，适用计算年金和未来付款公允市场价值的标准公式，五笔18,000美元年度付款加上六年内到期的290,000美元付款加上已完成的120,000美元付款的现值将约为375,000美元，而非500,000美元。26 在某些情况下，本身不构成资本的期票反而可以构成证据，证明申请人正在“投资过程中”其他资本，例如现金。在这种情况下，8 C.F.R. § 216.6(c)(1)(ii)要求申请人在两年有条件期间结束前实质完成其票据付款。然而，在本案中，期票并非证明申请人正在投资过程中500,000美元现金的证据。如前所述，五笔18,000美元的年度付款由保证年度分配覆盖。290,000美元的期末整付直到两年期间结束后很久才到期。 在执行该计划时，移民局有责任确保申请人实际支付所需金额的资金。多年来，移民局观察到期票的条款逐渐变长；例如，AELP最初规定的到期日为四年和五年，而申请人的付款计划（AELP较近期的发展）涉及六年。期票下的付款时间表，无论该票据被用作资本还是作为

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commitment to invest, is relevant to the issue of whether a petitioner has, in good faith, committed the requisite amount of his personal funds. It is also relevant to the issue of the amount of funds at risk and available to the job- creating enterprise(s). Therefore, at a minimum, nearly all of the money due under a promissory note must be payable within two years, without provi- sions for extensions. 27 To allow otherwise would permit the admission of aliens who, by the terms of their investment plans, would be ineligible for removal of the conditions of their permanent resident status. See 8 C.F.R. § 216.6(c)(1)(iii). If the instant petition were to be approved, the petitioner would have paid at most $123,600 of his own funds at the time he sought removal of the conditions of his permanent resident status. 28 This is far short of the requi- site $500,000 and hardly evidences a good-faith commitment of funds. As noted above, the petitioner has also failed to show that the promissory note is adequately secured and that it otherwise has an adequate fair market value.

投资承诺的证据，与申请人是否善意承诺了所需金额的个人资金这一问题相关。它也与处于风险中并可供创造就业的企业使用的资金金额问题相关。因此，至少期票下到期的几乎所有资金必须在两年内支付，不得有延期条款。27 允许相反做法将导致接纳那些按其投资计划条款将不符合解除永久居民身份条件资格的外籍人士。见8 C.F.R. § 216.6(c)(1)(iii)。 如果本申请获得批准，申请人在寻求解除其永久居民身份条件时，最多将支付其自有资金123,600美元。28 这远低于所需的500,000美元，几乎不能证明资金的善意承诺。如上所述，申请人也未能证明期票获得了充分担保，并且在其他方面具有充分的公允市场价值。

8 C.F.R. § 204.6(j) states, in pertinent part, that:

8 C.F.R. § 204.6(j)的相关部分规定：

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While the record contains a letter from Wells Fargo Bank dated October 14, 1997, acknowledging the receipt of $120,000 and advising the petition- er that the funds had been deposited into a custody account, the record does not reveal from where these funds originated. It is not known if the money came from the petitioner’s overseas accounts, from his U.S. accounts, or from some other source. As the petitioner has not documented the path of the funds, such as by wire-transfer records, the petitioner has failed to meet his burden of establishing that the initial $120,000 were his own funds. See Matter of Soffici, 22 I&N Dec. 158 (Comm. 1998). The petitioner has also failed to document the source of the hundreds of thousands of dollars in his bank accounts. The petitioner is 30 years old and, according to counsel, began his “entrepreneurial activities” in May 1993. The petitioner is said to be the president of a company that imports and sells vintage Levis jeans in Japan. The only evidence of earnings contained in the record consists of two documents from the Director of Nerima Higasi Taxation Office. These doc- uments indicate that, for the taxable year of June 3, 1996, to May 31, 1997, South Bay Trading Japan, Inc., declared Y12,674,887 in corporate income and paid Y3,992,100 in taxes. Counsel states that, applying an exchange rate of 122 Japanese yen to one U.S. dollar, the company’s taxable income was $103,892.52 for this period. After subtracting taxes paid, however, the net income of South Bay Trading was approximately $71,170. Furthermore, this figure says nothing about the petitioner’s level of income that year, and the petitioner has not submitted any documentation about his level of income during other years. Assuming that the petitioner had taken all of South Bay’s net income for himself, and assuming that the petitioner’s business activities had been just as successful in the previous three years, and assuming that the petitioner had had no living expenses, he could have saved no more than $300,000; counsel claims that the petition- er’s bank accounts contain over $650,000. Therefore, the petitioner has failed to meet the requirements of 8 C.F.R. § 204.6(j)(3).

尽管记录中包含一封富国银行日期为1997年10月14日的信函，确认收到120,000美元并告知申请人该资金已存入一个托管账户，但记录并未显示这些资金来自何处。尚不清楚该款项是来自申请人的海外账户、其美国账户，还是来自其他来源。由于申请人未记录资金的流转路径，例如通过电汇记录，申请人未能履行其举证责任，证明最初的120,000美元是其自有资金。见Matter of Soffici, 22 I&N Dec. 158 (Comm. 1998)。 申请人也未能记录其银行账户中数十万美元的来源。申请人现年30岁，据律师称，他于1993年5月开始其“创业活动”。据称申请人是某公司的总裁，该公司在日本进口和销售复古Levis牛仔裤。 记录中唯一包含的收入证据是来自练马东税务署署长的两份文件。这些文件表明，在1996年6月3日至1997年5月31日的纳税年度，South Bay Trading Japan, Inc.申报了12,674,887日元的公司收入并缴纳了3,992,100日元的税款。律师称，按122日元兑1美元的汇率计算，该公司此期间的应税收入为103,892.52美元。然而，扣除已缴税款后，South Bay Trading的净收入约为71,170美元。 此外，该数字并未说明申请人当年的收入水平，且申请人未提交任何关于其其他年份收入水平的文件。假设申请人将South Bay的全部净收入据为己有，并假设申请人的商业活动在前三年同样成功，并假设申请人没有生活开支，他最多也只能存下不超过300,000美元；律师声称申请人的银行账户中有超过650,000美元。因此，申请人未能满足8 C.F.R. § 204.6(j)(3)的要求。

In his brief on behalf of the petitioner, counsel refers to instances in which he was supposedly guaranteed that his clients’ petitions would be approved. Counsel states that in 1992 he was given a model petition and advised that if he patterned his investment structures in the same way, his clients’ petitions would be approved. In the fall of 1996, counsel met with “the Senior INS representative in charge of immigrant investor programs” and this person

在其代表申请人提交的辩护状中，律师提及了他据称曾被保证其客户的申请将获得批准的若干情形。律师称，1992年他获得了一份示范申请，并被告知如果他以相同方式构建其投资结构，其客户的申请将获得批准。 1996年秋，律师会见了“负责移民投资者项目的移民局高级代表”，此人

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Brief at 46. Counsel states, at page 14, “Thereafter, INS kept its word. Approximately 95 petitions of AELP were approved by INS including over 50 petitions involving the initial payment option of $120,000.” The opin- ions of a single Service official, however, are not binding, and as stated ear- lier, no Service officer has the authority to pre-adjudicate an immigrant- investor petition. Counsel states that he has submitted 11 different partnership plans to the Service and that they are all identical; since the first petitions were approved, the Service is bound to approve the petition at issue here. Counsel further claims that on more than 30 occasions, he had been promised that no “changes” would be made except by formal rulemaking. Counsel is say- ing, in effect, that the approval of his programs is nonreviewable except upon a writing of formal regulations. Opinions purportedly expressed by a few Service officials cannot remove the AAU’s regulatory authority to review these cases. To say that an agency’s knowledge cannot grow, and that an agency is prohibited from benefiting from its experience, is unreason- able. The petitioner argues that the OGC opinion of December 19, 1997, constitutes a rule change that the Service is now retroactively applying in violation of the Administrative Procedure Act (“APA”). Brief at 4-7, 114- 43; Second Supplemental Brief at 5-12. This OGC opinion, however, is not a “rule.” Under the APA, a rule is a binding legal principle “designed to implement, interpret or prescribe law or policy.” 5 U.S.C. § 551. As noted in the OGC opinion itself, the opinion in no way modifies existing law, but is intended merely to provide guidance to the Service in understanding many factual issues that have arisen over the years with respect to immi- grant-investor petitions. Providing this type of guidance is the very mission of OGC, as specifically provided at 8 C.F.R. § 100.2(a)(1) and 103.1(b)(1). These regulations do not delegate any authority to OGC to establish bind- ing legal principles or to exercise any other rulemaking power. Neither the AAU nor other Service adjudicators, therefore, are bound to follow the OGC opinion of December 19, 1997. The AAU’s decision in this case is based entirely on the application of longstanding statutory and regulatory law to the facts presented in this petition. The petitioner incorrectly argues that the Service should be estopped from finding that his investment plan is inconsistent with § 203(b)(5) of the Act and the relevant regulations. The Supreme Court has never upheld a claim that a Government agency may be estopped from deciding a case before it, such as this case, in accordance with the law. See Office of Personnel Management v. Richmond, 496 U.S. 414, 422 (1990).

辩护状第46页。律师在第14页称，“此后，移民局信守了其承诺。移民局批准了AELP约95份申请，其中包括超过50份涉及120,000美元首付款选项的申请。”然而，单个移民局官员的意见不具有约束力，且如前所述，没有任何移民局官员有权对移民投资者申请进行预先裁决。 律师称，他已向移民局提交了11份不同的合伙计划，且它们完全相同；既然首批申请已获批准，移民局就有义务批准本案所涉申请。律师进一步声称，他曾30多次被承诺，除通过正式规则制定外，不会作出任何“变更”。律师实际上是在说，其项目的批准是不可复审的，除非有正式的法规文本。少数移民局官员据称表达的意见不能剥夺AAU审查这些案件的监管权力。声称一个机构的知识不能增长，并禁止一个机构从其经验中受益，是不合理的。 申请人主张，1997年12月19日的OGC意见构成了一项规则变更，移民局现正追溯适用该变更，违反了《行政程序法》（“APA”）。辩护状第4-7、114-43页；第二补充辩护状第5-12页。然而，该OGC意见并非一项“规则”。根据APA，规则是一项具有约束力的法律原则，“旨在实施、解释或规定法律或政策”。5 U.S.C. § 551。正如OGC意见本身所指出的，该意见绝未修改现行法律，而仅旨在为移民局理解多年来就移民投资者申请出现的许多事实问题提供指导。提供此类指导正是OGC的使命，8 C.F.R. § 100.2(a)(1)和103.1(b)(1)对此有明确规定。这些法规并未授予OGC任何确立具有约束力的法律原则或行使任何其他规则制定权的权力。因此，AAU或其他移民局裁决者均不受1997年12月19日OGC意见的约束。AAU对本案的决定完全基于将长期存在的成文法和法规适用于本申请中呈现的事实。 申请人错误地主张，移民局应被禁止认定其投资计划不符合该法第203(b)(5)条及相关法规。最高法院从未支持过这样的主张，即可以禁止政府机构依照法律裁决其面前的案件，例如本案。见Office of Personnel Management v. Richmond, 496 U.S. 414, 422 (1990)。

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Furthermore, even if estoppel were applicable to the Service under these circumstances, the petitioner has completely failed to establish the requisite elements therefor. For example, the petitioner has shown no affirmative misconduct on the part of the Service. Moreover, the petitioner has not shown that he has detrimentally relied on any prior representation by a Service official. First, no basis exists for a claim that the petitioner or his counsel “reasonably” or “justifiably” believed that informal discussions between counsel and any Service officer were an acceptable substitute for following the normal rules applicable to the filing and adjudication of investor-visa petitions. It is basic immigration law that the only way to obtain a determination on eligibility for immigrant- investor classification is to file a petition with the Service. See section 204(a)(1)(F); 8 C.F.R. § 2.1 and 204.6(a), Furthermore, the Service may approve a petition only if the Service makes a formal adjudication “[a]fter an investigation of the facts in each case,” that the alien is eligible for the classification sought, § 204(b) of the Act. In addition, even if the petitioner were able to establish reasonable reliance, he has not shown that he has done so to his detriment. For exam- ple, according to the investment plan, the petitioner is only obligated to pay the required investment upon the approval of his visa petition. Brief at 29.

此外，即使禁止反言在此情况下适用于移民局，申请人也完全未能确立其所要求的要素。例如，申请人未显示移民局方面有任何积极的不当行为。 此外，申请人未显示其已不利地依赖移民局官员的任何先前陈述。首先，没有任何依据支持这样的主张，即申请人或其律师“合理”或“有正当理由”地相信律师与任何移民局官员之间的非正式讨论可以可接受地替代适用于投资者签证申请提交和裁决的正常规则。基本的移民法规定，获得移民投资者类别资格认定的唯一方式是向移民局提交申请。见第204(a)(1)(F)条；8 C.F.R. § 2.1和204.6(a)。此外，移民局只有在“[对每起案件的事实进行调查]后”作出正式裁决，认定该外国人符合所寻求类别的资格，方可批准申请，该法第204(b)条。 此外，即使申请人能够确立合理信赖，他也未显示其已因此受损。例如，根据投资计划，申请人仅在签证申请获批后才有义务支付所需投资。辩护状第29页。

THE PETITIONER HAS NOT ESTABLISHED A NEW COMMERCIAL ENTERPRISE

申请人未确立新的商业企业

8 C.F.R. § 204.6(h) states that the establishment of a new commercial enterprise may consist of:

8 C.F.R. § 204.6(h)规定，新的商业企业的设立可以包括：

8 C.F.R. § 204.6(e) states that:

8 C.F.R. § 204.6(e)规定：

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According to the plain language of § 203(b)(5)(A)(i) of the Act, a peti- tioner must show that he is seeking to enter the U.S. for the purpose of engaging in a new commercial enterprise that he has established. As coun- sel maintains, the new commercial enterprise at issue here is AELP. AELP, however, was established on March 25, 1996. The petitioner executed the various partnership documents on October 14, 1997. The petitioner did not indicate, at Part 4 of the Form I-526, in what way he was creating a new enterprise. While AELP is a new commercial enterprise, in that it was formed after November 29, 1990, the petitioner had no hand in its creation and was not present at its inception. 29 Therefore, the petitioner must demonstrate that he will restructure or reorganize AELP to the degree that a new business will result, or he must demonstrate that he will expand AELP’s net worth or number of employees by 40 percent, or he must demonstrate that AELP is a troubled business as defined above. AELP was an ongoing business prior to the petitioner executing the investment agreement, and it intends to continue in its current form; there- fore, the petitioner has not established the requisite restructuring or reor- ganization. As the petitioner has noted on numerous occasions, 95 investors have previously been approved with respect to AELP. Taking his claims at face value, and assuming that all 95 investors have made capital investments of $500,000, it is not possible for this petitioner to expand AELP by 40 per- cent with a single “investment” of $500,000. Finally, the petitioner has not submitted evidence to show that AELP has suffered the degree of loss in net worth specified by 8 C.F.R. § 204.6(e) to qualify as a troubled business; in addition, AELP was not in existence for at least two years prior to the time the petitioner signed the investment agreement. The AAU recognizes that the Service has previously approved petitions involving plans in which limited partners joined partnerships over varying periods of time. Experience has shown, however, that some of these pool-

根据该法第203(b)(5)(A)(i)条的明文规定，申请人必须证明其寻求进入美国是为了从事其已设立的新商业企业。正如律师所主张的，此处的争议新商业企业是AELP。然而，AELP设立于1996年3月25日。申请人于1997年10月14日签署了各项合伙文件。申请人在I-526表格第4部分未说明其以何种方式创建了一个新企业。 虽然AELP是一个新商业企业，因为其成立于1990年11月29日之后，但申请人并未参与其创建，且在其成立时并不在场。29 因此，申请人必须证明其将对AELP进行重组或重整，达到产生一个新企业的程度，或者其必须证明将把AELP的净资产或雇员人数扩大40%，或者其必须证明AELP属于上文所定义的困难企业。 在申请人签署投资协议之前，AELP是一个持续经营的企业，且其打算以目前的形式继续经营；因此，申请人未能证明所要求的重组或重整。正如申请人在多个场合所指出的，此前已有95名投资者就AELP获得批准。按其主张的表面价值采信，并假设全部95名投资者均已作出500,000美元的资本投资，本申请人以单笔500,000美元的“投资”不可能将AELP扩大40%。最后，申请人未提交证据表明AELP遭受了8 C.F.R. § 204.6(e)所规定的净资产损失程度，从而符合困难企业的资格；此外，在申请人签署投资协议之前，AELP的存在时间未满至少两年。 AAU认识到，移民局此前曾批准过涉及有限合伙人于不同时间段加入合伙企业的计划的申请。然而，经验表明，其中一些汇集

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ing arrangements are being used to circumvent the establishment require- ment set forth by Congress. The petitioner has failed to show that he has established a new com- mercial enterprise, as required by § 203(b)(5)(A)(i) of the Act.

安排正被用来规避国会规定的设立要求。 申请人未能证明其已按照该法第203(b)(5)(A)(i)条的要求设立了一个新商业企业。

THE PLAN DOES NOT MEET THE EMPLOYMENT-CREATION REQUIREMENT

该计划不符合创造就业的要求

8 C.F.R. § 204.6(j)(4)(i) states:

8 C.F.R. § 204.6(j)(4)(i)规定：

8 C.F.R. § 204.6(g) deals with multiple investors and states, in pertinent part:

8 C.F.R. § 204.6(g)涉及多个投资者，相关部分规定：

As discussed earlier, the petitioner has failed to demonstrate that the subsidiary credit corporation has extended loans in the past to export-relat- ed businesses located within the geographical limitation of the regional cen- ter. Similarly, the credit corporation’s loan prospects do not appear to involve businesses within the geographical limitation. No reason exists to believe that this petitioner’s money will be lent to businesses within the geo- graphical area. Therefore, he must establish direct employment creation.

如前所述，申请人未能证明附属信贷公司过去曾向位于区域中心地理限制范围内的出口相关企业发放贷款。同样，信贷公司的贷款前景似乎不涉及地理限制范围内的企业。没有理由相信本申请人的资金将被贷给该地理区域内的企业。因此，其必须证明直接创造就业。

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The petitioner has failed to show that AELP has hired or will hire a suffi- cient number of employees to allocate 10 full-time positions to each of the 95 previously-approved petitioners as well as to this petitioner and the remaining 64 petitioners whose cases have not been decided.

申请人未能证明AELP已经或将会雇用足够数量的雇员，以便为此前已获批准的95名申请人中的每一名以及本申请人和其余64名案件尚未裁决的申请人各分配10个全职岗位。

CONCLUSION

结论

In his brief, counsel states, “INS is supposed to grant immigrant investor petitions, not to deny them. INS is to interpret the laws and regula- tions liberally and generously so as to achieve [this] Congressional pur- pose.” He presents statistics showing that, of the total number of visas made available, only six percent has been used. The fact that counsel con- siders this category to be under-utilized is irrelevant. The alien-entrepreneur classification is for a special kind of person, and it is not surprising that, notwithstanding the random number fixed by Congress, few people have both the financial means and the entrepreneurial spirit to apply. The Service will not eviscerate the meaning of the regulations or the essence of the law simply to “fill up” the numbers. The measure of success or failure of the EB-5 program is not the number of petitions granted; rather, it is the extent to which proper compliance is achieved and genuine investments are made. Counsel continues, “Failing to comply reflects adversely upon INS as having failed to properly communicate to those attempting to comply, that which is necessary to comply.” The foregoing decision should offer some guidance as to what is necessary to comply. The burden of proof in these proceedings rests solely with the petition- er. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden. Accordingly, the petition is denied. ORDER: The decision of the director is affirmed. The petition is denied.

律师在其简报中称，“移民局应当批准移民投资者申请，而不是拒绝它们。移民局应当宽松、慷慨地解释法律和法规，以实现[这一]国会目的。” 他提交的统计数据显示，在可供使用的签证总数中，仅使用了6%。律师认为该类别利用不足这一事实无关紧要。外国人企业家分类面向的是一种特殊类型的人，尽管国会确定了随机数字，但既具备财力又具备创业精神的人寥寥无几，这并不令人意外。移民局不会仅仅为了“填满”数字而掏空法规的含义或法律的实质。EB-5计划成功或失败的衡量标准不是获批申请的数量；而是实现适当合规和作出真实投资的程度。 律师继续称，“未能合规对移民局产生了不利影响，因为其未能向那些试图合规的人妥善传达合规所必需的事项。”上述决定应当为合规所必需的事项提供一些指引。 在这些程序中，举证责任完全由申请人承担。该法第291条，8 U.S.C. § 1361。申请人未能满足该举证责任。因此，申请被拒绝。 命令：主任的决定予以维持。申请被拒绝。

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