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Motion to Reopen and Reconsider I-526 Case

Motion to Reopen and Reconsider in I-526 Investor Case

Applicant: Ms. Liang
Nationality: China
Applying for: Motion to Reopen and Reconsider [I-290B]
Case Type: I-526
Time: 2 months
Challenges:

  • Client’s previous attorney had been disbarred during the adjudication of her case, denying her access to case documents.
  • Her case was denied as a result.
  • Client did not have access to her denial letter and request for evidence as they were with her now-disbarred previous attorney, and she could not find by any other means.
  • Without the RFE, it was not possible to know why the case was denied.
  • By the time the case came to us, it was already past the 30-day filing window for a Motion to Reopen.

 

BACKGROUND

Desperate, Ms. Liang came to Tsang and Associates seeking assistance in reopening her I-526 case. She was unable to get ahold of her previous attorney, who was presumably in possession of her case’s I-526 denial letter and RFE. However, the previous attorney had been disbarred and his office closed. If the letter could not be located, then it would not be possible to reopen the case. And if his petition did not get reopened, she would have to leave the United States at the expiration of her current visa or go through the entire filing process again hoping for a more favorable outcome. To make matters worse, Ms. Liang’s case had been denied because her previous attorney had been disbarred by the state of California, denying her access to the USCIS request for evidence that was critical to her case, and directly resulting in her case’s denial. Without the Request for Evidence, she was not able to respond to it and her case was denied as a direct result. We were confident that we could overcome the denial by filing a Motion to Reopen the case.

 

KEYS TO SUCCESS

On September 22, 2014 Ms. Liang filed a form I-526 with USCIS. On August 13, 2015 her previous attorney was deemed ineligible to practice law by the State Bar of California. The previous attorney did not notify the petitioner of this order, nor did he notify petitioner when his office subsequently closed. On November 14, 2015 Ms. Liang was issued a Request for Evidence for her I-526, with a date of December 17, 2015 as the latest possible response. The RFE challenged that the business she invested in was in fact a “new business enterprise”. However, the petitioner never received her RFE because it was mailed to her prior attorney’s office. When the RFE deadline came and went on December 17 without challenge. Ms. Liang never received her Notice because it was mailed to her prior attorney’s office, which had already closed and ceased operations. Her previous attorney was disbarred on January 28, 2016. No notice of any disciplinary proceedings that led to the disbarment were ever provided to the Petitioner. Her I-526 petition was officially denied on April 18, 2016. She never knew of the RFE issued to her and had no chance to respond to it. According to regulations at 8 CFR 103.5(a)(2), “Requirements for motion to reopen,” states: “A motion to reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be supported by affidavits or other documentary evidence.”

The first challenge in this case was the fact that it was filed outside the regular 30 day filing window. We were able to get it filed nevertheless, as we were committed to filing and winning the case. To overcome this problem, we presented evidence that this would have been impossible considering that the petitioner never saw the RFE in her case, making a timely response impossible. Next, we responded to the issues challenged in the RFE. For example, it stated that the company that the petitioner invested $1 million in was not a new commercial enterprise. We provided documents that it had been established on February 19, 2013, only three years prior. We also referenced a law which stated that an immigrant investor could invest in an existing business provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results. Accordingly, the petitioner would still meet the requirements that the infusion of $1 million into the company was a restructuring in any case. Therefore, the company had been restructured as a new commercial enterprise

 

OUTCOME

We filed the case on September 7, 2016 and managed to receive the denial notice and reopen Ms. Liang’s case within 2 months. We were also able to obtain the original RFE along with the denial. With this we were able to address the issues that her previous attorney was unable to address.

When Ms. Liang lost contact with her prior attorney following his disbarment, she was very pessimistic that her case would have any chance of success. Following our successful filing of the MTR, Ms. Liang was extremely satisfied with the results and she retained our services for our successful challenge in the denial of her case.

*Name has been changed to protect client identity.