APA E-2 Treaty Investor Remand Victory: All Bright Sanitation v. USCIS

"In this case, All Bright seeks a determination under the Administrative Procedure Act ("APA"), 5 U.S.C. §706 et seq., that the Government improperly denied its petition for a foreign national to receive United States Non-Immigrant Investor Status pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(E), and certain Federal Regulations, 8 CFR §214.2(e).  All Bright requested that the Agency change the nonimmigrant visa status of its sole owner and shareholder, Simon Geisler, to "E-2 Treaty Investor" from "F-1 Student," the visa classification Geisler previously enjoyed.  The Agency denied All Bright's application principally because it found Geisler, the treaty investor, had not satisfied the requirements of an "investment" under 8 C.F.R. § 214.2(e)(12). The question before the Court is whether the Agency properly determined that Geisler was not eligible for the "E-2 Treaty Investor" classification. ... the Agency's determination that Geisler did not have "possession" and "control" over certain of the assets under investment constitutes an abuse of discretion and is arbitrary and capricious.  So, too, is the Agency's finding that Geisler had nothing at risk with respect to the two loans.  ... The Court ... holds that the Agency's decision does not pass muster under the relevant legal standards and, as such, must be set aside.  The Agency must issue a new decision on All Bright's petition consistent with this Order." - All Bright Sanitation v. USCIS, Sept. 11, 2012.