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Keywords

appealmotionsummary judgmentregulationvisanaturalizationlegislative intentmotion for summary judgmentdeclaratory judgment
motionsummary judgmentregulationvisanaturalizationmotion for summary judgment

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Kenkhuis v. Immigration and Naturalization Service

Facts

Kenkhuis filed an I-526 petition for an EB-5 visa based on his operation of the Hen-Lin Dairy, claiming he increased his investment by over $500,000 after November 1990 by leaving his profits in the enterprise. The INS initially approved his petition in 1998 but later revoked it in 2000, stating that Kenkhuis had not satisfied the statutory requirements of investing $500,000 in a new commercial enterprise that created full-time employment. Kenkhuis appealed the decision, which was affirmed by the Administrative Appeals Office (AAO) in 2001, leading to this declaratory judgment action.

Kenkhuis filed an I-526 petition for an EB-5 visa based on his operation of the Hen-Lin Dairy, claiming he increased his investment by over $500,000 after November 1990 by leaving his profits in the enterprise.

Issue

Whether the INS correctly interpreted the investment requirement under 203(b)(5) of the Immigration Act of 1989, specifically whether leaving profits in the business constituted an investment of new capital.

Whether the INS correctly interpreted the investment requirement under 203(b)(5) of the Immigration Act of 1989, specifically whether leaving profits in the business constituted an investment of new capital.

Rule

The regulations specifically state that an investment is a contribution of capital, and not simply a failure to remove money from the enterprise. The definition of 'invest' in the regulations does not include the reinvestment of proceeds.

The regulations specifically state that an investment is a contribution of capital, and not simply a failure to remove money from the enterprise. The definition of 'invest' in the regulations does not include the reinvestment of proceeds.

Analysis

The court applied Chevron deference to the INS' interpretation of the investment requirement, determining that the INS did not abuse its discretion in concluding that Kenkhuis had not invested the required capital. The court found that the INS' definition of 'invest' necessitated an infusion of new capital rather than merely retaining profits, which aligned with the legislative intent of the EB-5 program to promote job creation through new investments.

The court applied Chevron deference to the INS' interpretation of the investment requirement, determining that the INS did not abuse its discretion in concluding that Kenkhuis had not invested the required capital.

Conclusion

The court granted the INS's motion for summary judgment and denied Kenkhuis's motion, affirming the INS's decision to revoke the approval of his petition for immigrant investor status.

The court granted the INS's motion for summary judgment and denied Kenkhuis's motion, affirming the INS's decision to revoke the approval of his petition for immigrant investor status.

Who won?

The Immigration and Naturalization Service (INS) prevailed in the case because the court upheld its interpretation of the investment requirement, concluding that Kenkhuis did not meet the statutory criteria for immigrant investor status.

The Immigration and Naturalization Service (INS) prevailed in the case because the court upheld its interpretation of the investment requirement, concluding that Kenkhuis did not meet the statutory criteria for immigrant investor status.

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