United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION TO DISMISS COUNTS TWO, THREE,
FOUR, AND FIVE; MOTION TO DISMISS COUNTS SEVEN AND EIGHT RE:
DKT. NOS. 163, 165, 182, 212
H. KOH, UNITED STATES DISTRICT JUDGE
the Court are Defendant Jennifer Yang's
(“Yang”) motion to dismiss Count Two, Three,
Four, and Five of the Superseding Indictment, ECF No. 163,
and Yang's motion to dismiss Counts Seven and Eight of
the Superseding Indictment, ECF No. 165. Having considered
the filings of the parties, the relevant law, and the record
in this case, the Court DENIES Yang's motion to dismiss
Counts Two, Three, Four, and Five of the Superseding
Indictment. The Court also DENIES Yang's motion to
dismiss Counts Seven and Eight of the Superseding Indictment.
Court takes the following facts from the Superseding
Indictment, as required on a motion to dismiss an indictment
for failure to state an offense. United States v.
Boren, 278 F.3d 911, 914 (9th Cir. 2002) (“On a
motion to dismiss an indictment for failure to state an
offense, the court must accept the truth of the allegations
in the indictment in analyzing whether a cognizable offense
has been charged.”).
The EB-5 Visa Program
EB-5 visa program permits foreigners and their immediate
family members to obtain a path to Lawful Permanent Residency
(“LPR”) in the United States by investing $1,
000, 000 in a commercial enterprise. ECF No. 4
(“SI”) ¶ 9. The investment need only be
$500, 000 if it is invested in certain geographic areas with
low employment rates. Id. After two years in the
EB-5 visa program, if the investor's commercial
enterprise creates ten or more jobs, United States Citizen
and Immigration Services (“USCIS”) will lift the
restrictions on the investor's temporary residency status
and grant the foreigner and her immediate family full LPR
status. Id. ¶ 11.
to participate in the EB-5 visa program is through the
creation of New Commercial Enterprises (“NCE”),
which is defined as an investment in a new or existing
business that generates new jobs in the United States.
Id. ¶ 12. USCIS permits multiple investors to
invest in the same NCE for the purposes of the EB-5 visa
program. Id. However, the job creation requirement
remains the same for each investor. Id. Thus, if two
individual investors opt to invest in the same NCE, a total
of twenty jobs must be created in order to satisfy the EB-5
visa program's job creation requirement. Id.
first step to apply for an EB-5 visa is to submit a form
I-526, Immigrant Petition by Alien Investor. Id.
¶ 13. The form I-526 requires the name and biographical
data of the proposed investor; the name, address, and
description of the investor's commercial enterprise; the
date and amount of investment; and the investor's job
title and duties. Id.
form I-526 also requires supporting documentation, such as
evidence that the investor has, among other things,
established a lawful business entity and invested, or is
actively in the process of investing, the required capital.
Id. ¶ 14. Additionally, the investor must
provide evidence that the enterprise will create at least ten
full-time positions, as defined by USCIS. Id.
Finally, the investor must provide evidence that the investor
will be engaged in the management of the commercial
enterprise. Id. The form I-526 requires the investor
to “certify, under penalty of perjury under the laws of
the United States of America, that this petition and the
evidence submitted with it is all true and correct.”
Id. ¶ 15.
approval of the I-526 petition, the investor must then file a
form I-485, Application for Conditional Permanent Residency
Status. Id. ¶ 16. The form I-485 confers
conditional permanent residency status to the investor, and
this conditional permanent residency status lasts for two
years. Id. Within 90 days of the second anniversary
of the date that the investor received conditional permanent
residency status, the investor must finally file a form
I-829, Petition by Entrepreneur to Remove Conditions.
form I-829 requests that USCIS grant LPR status to the
investor. Id. Similar to the form I-526, the form
I-829 requires the name and biographical data of the
investor; the name of the investor's immediate family
members that will receive LPR status; the date and amount of
the investment; and the number of jobs created by the
form I-829 requires supporting documentation such as evidence
that the commercial enterprise exists and was maintained
through the period of the investor's conditional
permanent residency status. Id. ¶ 17. The
investor must also provide evidence of the number of the
full-time employees of the commercial enterprise when the
investment was first made, and the number of full-time
employees of the commercial enterprise when the form I-829
was submitted. Id. This proof can consist of
documents such as I-9s and W-2s. Id. The form I-829
is subject to the same penalty of perjury provision as the
form I-526. Id. ¶ 18.
The Alleged Schemes
was a resident of Palo Alto, California, and a licensed
attorney since 2004. Id. ¶ 1. Daniel Wu
(“Wu”) was a resident of Las Vegas, Nevada and
before that, San Mateo, California. Id. ¶ 2.
Yang and Wu were married in 1993 and lived as husband and
wife until 1998. Id.
approximately 2007, Yang held herself out as a legal
specialist for individuals interested in applying to the EB-5
visa program. Id. ¶ 19. Yang founded, owned,
and served as control person of Capital Law Group, LLP
(“CLG”), a law firm located in Palo Alto,
California. Id. ¶ 3. CLG represented
individuals seeking benefits under the EB-5 visa program.
and Wu possessed ultimate authority over four entities: (1)
1-855-Lawyers, Inc., (2) 81 Law, Inc., (3) 81 Doc, Inc., and
(4) Searchcaser, Inc. Id. ¶ 20. Yang and Wu
also controlled the bank accounts associated with these four
entities. Id. Through their control of CLG and the
four entities, Yang and Wu allegedly filed petitions
connected to the EB-5 visa program for at least seven
different investors. Id. ¶ 21. In exchange,
Yang and Wu allegedly received at least $4, ...