The Petitioner seeks classification as an immigrant investor pursuant to the Immigration and Nationality Act (the Act) Section 203(b)(5), 8 U.S.C. § 1153(b)(5) (2018). 1 This employment-based fifth preference (EB-5) classification makes immigrant visas available to individuals who invest the requisite amount of qualifying capital in a new commercial enterprise (NCE) that will benefit the U. S. economy and create at least 10 full-time positions for qualifying employees.
The Chief of the Immigrant Investor Program Office denied the petition, concluding that the record did not establish the lawful source of the Petitioner's funds. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
Law
An alien may be classified as an immigrant investor if they invest the requisite amount of qualifying capital in an NCE. An alien may invest the required funds directly in an NCE or through a regional center, as the Petitioner has done in this case. Regional centers can pool immigrant ( and other) investor funds for qualifying projects that create jobs directly or indirectly. 8 C.F.R. § 204.6(j)(4)(iii). An investor seeking EB-5 classification must show that their investment will benefit the U.S. economy and create at least 10 full-time jobs for qualifying employees. 8 C.F.R. § 204.6(j)(4). An NCE may be relied upon by multiple investors each seeking EB-5 classification, provided that each investor has invested or is actively in the process of investing the required amount, and that each individual investment results in the creation of at least 10 full-time positions for qualifying employees. 8 C.F.R. § 204.6(g)(l ).
An alien must demonstrate that they have placed their own capital at risk in the NCE. See Matter of Ho, 22 I&N Dec. 206, 213 (Assoc. Comm'r 1998); Matter ofSoffici, 22 I&N Dec. 158, 165 n.3 (Assoc. Comm'r 1998) ( stating that "[a] petitioner must ... establish, pursuant to 8 C.F.R. § 204.6( e ), that funds invested are [their] own"). In addition, the alien must show that their invested capital did not derive, directly or indirectly, from unlawful means. 8 C.F.R. § 204.6(e). To show the lawful source of the funds, an investor must submit evidence such as foreign business and tax records or documentation identifying sources of the capital. See 8 C.F.R. § 204.6(j)(3). Bank letters or statements corroborating the deposit of funds by themselves are insufficient to demonstrate their lawful source. Matter ofHo, 22 I&N Dec. at 210-11; Matter ofIzwnmi, 22 I&N Dec. 169, 195 (Assoc. Comm'r 1998). The record must trace the path of the funds back to a lawful source. 2 Matter ofHo, 22 I&N Dec. at 210-11; Matter ofIzummi, 22 I&N Dec. at 195.
Analysis
The Petitioner asserts eli ibilit for the EB-5 classification based upon a $500,0003 investment into , LLC (the NCE), an entity which is associated with the regional center 1------------"""T""""'
~---------~· The NCE proposed to pool $6,000,000 from 12 immigrant investors.
The Chief denied the petition, finding that the Petitioner did not establish that the invested funds were obtained through lawful means. On appeal, the Petitioner contends that he has established his eligibility and submits additional evidence related to the source of the funds invested into the NCE. As we discuss below, we conclude that the evidence in the record, including the additional evidence submitted on appeal, is insufficient to demonstrate the invested funds did not derive, directly or indirectly, from unlawful means. See 8 C.F.R. § 204.6(e).
The Petitioner asserts that the funds invested into the NCE originated from his controlling interest in a Brazilian company,~---------~Ltda., through which he has derived income from salary and profit distributions. The Petitioner asserts that these funds were transferred from several different personal bank accounts and investment accounts in Brazil to his personal bank account in the United States, and subsequently wired to the NCE in February 2019.
The Chief concluded that the Petitioner sufficiently demonstrated the movement of the funds from his Brazilian bank accounts to the U.S. account and thereafter into the NCE. However, the Chief concluded that the Petitioner did not sufficiently demonstrate the source of the funds that were transferred. First, the Chief found that the Petitioner did not sufficiently demonstrate the accrual and maintenance of the funds over time, because the Petitioner did not submit, for example, sufficient monthly bank account statements showing income earned and maintained in his Brazilian bank or investment accounts over time.No interest from users, customers or investors Second, the Chief found that the Petitioner did not sufficiently demonstrate the lawful source of the income from which the funds were derived, because the Petitioner's tax records show that he earned significant income in dividends from two other companies, 2 These requirements "serve a valid government interest; i.e., to confirm that the funds utilized in the [EB-5] program are not of suspect origin." Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1040 (E.D. Cal. 2001) (holding that a petitioner had not established the lawful source of her funds because, in part, she did not designate the nature of all of her employment or submit five years of tax returns), aff'd, 345 F.3d 683 (9th Cir. 2003). 3 Because the NCE is located in a targeted employment area, the requisite amount of qualifying capital is downwardly adjusted from $1,000,000 to $500,000. See 8 C.F.R. § 204.6(f)(2) (2018). p. 3 but he did not provide evidence related to these two companies to establish that this income was lawfully obtained.
On appeal, the Petitioner asserts the same claim, previously presented to the Chief, that all the amounts used for the investment came from the Petitioner's salary and dividends from I ILtda., and that any evidence related to the other two business ventures is.__no_t_r_e-le_v_a_n_t-to-th_e_. adjudication of the petition. Additionally, in response to the Chief's conclusion that the Petitioner did not sufficiently document the accumulation and maintenance of the invested funds, the Petitioner submits on appeal monthly bank statements from two personal bank accounts and two investment accounts in Brazil.
Upon de novo review, we conclude that the evidence and arguments presented on appeal are insufficient to overcome the basis for denial. First, we are unpersuaded by the Petitioner's claim that the income he has derived from his ownership in the two other companies is immaterial to our inquiry into the lawful source ofthe Petitioner's funds. The Petitioner has not established that the distributions from the other two companies, which vary by year in the Petitioner's tax returns but are nevertheless significant amounts,4 have not been comingled in the accounts the Petitioner used for his invested funds.
For example, the monthlY. bank account statements submitted on appeal from the Petitioner's! I D account endin in show continuous and frequent deposits with the abbreviated descriptions of' L___.r-------------,___J·" Because the names ofthe two entities are similar to each other and to'---,-----,-------,----,--'Ltda., these abbreviated descriptions are not sufficient to show that the Petitioner has not comingled income from all three of these companies into this account. Further, as noted by the Chief, the record lacks evidence, such as foreign business registration documents, corporate tax returns, or other evidence related to the other two companies as required. See 8 C.F.R. § 204.6(i)(3). Additionally, the I Ibank statements, which show credits and deposits that frequently exceed R$200,000 monthly, also show regular, significant deposits from unidentified sources. Finally, we note that although the Petitioner claimed to submit bank statements for another one of his personal accounts withl Ithe English translations of these documents are incomplete and contain no substantive information. See 8 C.F.R. § 103.2(b)(3) (requiring that any document submitted to USCIS containing foreign language be accompanied by a full, certified English translation).
Although the Petitioner contends that he has only used income received froml I, Ltda. to fund his EB-5 investment, the evidence shows that the salary, profit, and dividends received from this entity were heavily comingled with other, significant unidentified income sources. As noted above, the record must be sufficient to trace the path of the funds back to a lawful source. Matter of lzummi, 22 I&N Dec. at 195. The Petitioner has not established which amounts financed the EB-5 investment, and as such the evidence does not support the Petitioner's claim.
Second, the submission on appeal of additional bank statements and investment account statements is not sufficient to establish that the income accrued and maintained over time by the Petitioner did not derive, directly or indirectly, from unlawful means. See 8 C.F.R. § 204.6(e). As discussed above, the bank records show significant, frequent deposit amounts for which the Petitioner has not explained the source. We therefore conclude that the Petitioner has not provided evidence identifying any other sources of capital, as required, or that the invested amounts did not derive from unlawful means. 8 C.F.R. § 204.6(e); (j)(3)(iii).
Conclusion
For the reasons discussed above, we conclude that the Petitioner has not established, by a preponderance of the evidence, his eligibility for the classification. Specifically, he has not demonstrated the lawful source of his purported EB-5 investment. See 8 C.F.R. § 204.6(j)(3), (e); Matter ofHo, 22 I&N Dec. at 210-11; Matter ofIzummi, 22 I&N Dec. at 195. It is the Petitioner's burden to demonstrate eligibility for the EB-5 classification, which includes establishing the lawful source of the invested funds. Here, the Petitioner has not made such a showing.
ORDER: The appeal is dismissed.