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009589.0024\4738077.1 DEC. ROBERT C. DIVINE ISO RECEIVER’S MOTION FOR ORDER FOR MARKETING AND SALE OF RUNWAY Wendel, Rosen, Black & Dean LLP 1111 Broadway, 24t h Floor Oakland, California 94607-4036 

Elizabeth Berke-Dreyfuss (Bar No. 114651) 

WENDEL, ROSEN, BLACK & DEAN LLP 

1111 Broadway, 24th Floor 

Oakland, California 94607-4036 

Telephone: (510) 834-6600 

Fax: (510) 834-1928 

Email: edreyfuss@wendel.com 

Attorneys for Susan L. Uecker, 

Receiver and Monitor 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

SECURITIES AND EXCHANGE 

COMMISSION, 

Plaintiff, 

vs. 

SAN FRANCISCO REGIONAL CENTER, LLC; 

THOMAS M. HENDERSON; CALIFORNIA 

GOLD MEDAL, L.P.; CALLSOCKET, L.P.; 

CALLSOCKET II, L.P.; CALLSOCKET III, 

L.P.; COMPREHENSIVE CARE OF 

OAKLAND, L.P.; NA3PL, L.P.; WEST 

OAKLAND PLAZA, L.P.; CALLSOCKET, 

LLC; CALLSOCKET II, LLC; CALLSOCKET 

III, LLC; COMPREHENSIVE CARE OF 

CALIFORNIA, LLC; IMMEDIA, LLC; and 

NORTH AMERICA 3PL, LLC, 

Defendants, 

-andCALLSOCKET HOLDING COMPANY, LLC; 

CALLSOCKET III HOLDING COMPANY, 

LLC; BERKELEY HEALTHCARE 

DYNAMICS, LLC; CENTRAL CALIFORNIA 

FARMS, LLC; and JL GATEWAY, LLC, 

Relief Defendants. 

 Case No. 3:17-CV-00223-RS 

DECLARATION OF ROBERT C. 

DIVINE IN SUPPORT OF MOTION 

FOR ORDERS: (i) APPROVING 

COMMISSION AGREEMENT; (ii) 

SALE OF RUNWAY ASSETS TO 

ACTIVE NET, INC.; AND (iii) AND 

APPROVING AUCTION AND 

OVERBIDDING PROCEDURES FOR 

SALE 

Date: June 22, 2017 

Time: 1:30 p.m. 

Place: Courtroom 3 

 450 Golden Gate Ave., 17th Floor 

 San Francisco, CA 94102 

Judge: The Hon. Richard Seeborg 

 

Case 3:17-cv-00223-RS Document 177-3 Filed 06/13/17 Page 1 of 11
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009589.0024\4738077.1 2

DEC. ROBERT C. DIVINE ISO RECEIVER’S MOTION FOR ORDER FOR SALE OF RUNWAY

Wendel, Rosen, Black & Dean LLP 

1111 Broadway, 24t h Floor 

Oakland, California 94607-4036 

I, Robert C. Divine, declare: 

1. I am an attorney licensed to practice in the State of Tennessee, and a shareholder in 

the law firm of Baker Donelson, Bearman, Caldwell, & Berkowitz, P.C. (“Baker Donelson”). The 

following facts are true of my own personal knowledge, and if called upon to do so, I would and 

could competently testify thereto except as to those matters that are alleged upon information and 

belief and as to those matters, I believe them to be true. I make this declaration in support of 

Susan L. Uecker, Receiver’s motion for an order authorizing the marketing and sale of Runway. 

Writer's Background and Qualifications 

2. I have practiced immigration law for 30 years as a member of the American 

Immigration Lawyers Association. I am the author of Immigration Practice (Juris Publishing), a 

comprehensive treatise on U.S. immigration law, now in its 15th edition. I served from 2004 to 

2006 as Chief Counsel and for a time Acting Deputy Director of U.S. Citizenship & Immigration 

Services, a bureau within the Department of Homeland Security that adjudicates immigration 

benefit requests and administers the EB-5 Investor Program. For the last seven years I have been 

elected Vice President of IIUSA (see www.iiusa.org), the primary industry association of regional 

centers involved in the EB-5 Program. 

3. I have extensive experience serving clients throughout the world in the arrangement 

of all types of business-based temporary and permanent immigration status, including specialty 

occupations (H-1B, TN, E-3), individual and blanket international transferee programs (L-1), 

traders and investors (E-1/E-2, EB-5), medical workers, religious workers, labor certification, 

national interest waivers and extraordinary ability aliens. I have represented and assisted 

employers and other parties in some of the largest immigration enforcement investigations and 

prosecutions. I provide strategic advice and training for employers in their immigration 

compliance efforts. 

Case 3:17-cv-00223-RS Document 177-3 Filed 06/13/17 Page 2 of 11
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009589.0024\4738077.1 3

DEC. ROBERT C. DIVINE ISO RECEIVER’S MOTION FOR ORDER FOR SALE OF RUNWAY

Wendel, Rosen, Black & Dean LLP 

1111 Broadway, 24t h Floor 

Oakland, California 94607-4036 

4. I also represent many business developers in creating, managing and using 

“Regional Centers” that can create indirect jobs toward the 10 new U.S. jobs whose creation can 

give rise to EB-5 permanent residence for investment in the developers’ projects. I also represent 

many regional centers, mostly private but some owned by state governments, in obtaining and 

maintaining their designation with USCIS and overseeing, monitoring, and reporting to USCIS 

about investment projects and participating investors they sponsor. I coordinate this work with 

attorneys supporting securities law compliance in offerings to investors, with economists 

identifying “targeted employment areas” and projecting indirect job creation, with licensed 

securities brokers coordinating offerings, and with attorneys obtaining U.S. Government (OFAC) 

licenses to serve investors from restricted countries. I also represent individual investor 

immigrants in obtaining conditional permanent residence and in removing conditions from 

permanent residence. 

5. I am a frequent speaker on immigration matters at professional events, especially in 

relation to EB-5 issues. On January 7, 2011, I testified before the Senate Judiciary Committee 

regarding the job-creating effects of the EB-5 immigrant investor program and the importance of 

renewing the regional center authorizing legislation. I have written numerous articles about 

immigration topics and particularly about EB-5 issues. Many of those articles are linked and 

viewable from my law firm biography at www.bakerdonelson.com/robert-c-divine. I have served 

as an expert witness in U.S. and foreign courts about various topics of U.S. immigration. 

6. I have been retained by the Receiver, Susan Uecker of Uecker & Associates 

(“Receiver”), to advise and assist her concerning immigration matters in relation to her service as 

receiver in this action. 

7. I have been asked to address the question of whether the sale of Runway, which has 

been identified as a dba of CallSocket, L.P., would have any negative impact on the investors in 

CallSocket, L.P. with respect to their goal of obtaining unconditional lawful permanent residence 

Case 3:17-cv-00223-RS Document 177-3 Filed 06/13/17 Page 3 of 11
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009589.0024\4738077.1 4

DEC. ROBERT C. DIVINE ISO RECEIVER’S MOTION FOR ORDER FOR SALE OF RUNWAY

Wendel, Rosen, Black & Dean LLP 

1111 Broadway, 24t h Floor 

Oakland, California 94607-4036 

under the EB-5 program. For the reasons discussed below, I believe that the sale of Runway will 

not have a detrimental impact on the EB-5 immigration prospects of the CallSocket, L.P. 

investors. 

EB-5 Background 

8. By way of background, the USCIS administers a program that is intended to 

provide a means by which foreign nationals who invest a minimum of $500,000 in a new 

commercial enterprise principally doing business in a Targeted Employment Area in the United 

States to create a minimum of ten full-time jobs for U.S. workers can obtain permanent resident 

status in the United States. This is commonly referred to as the “EB-5 Program.” (See 8 U.S.C. 

§1153(b)(5).) The statute sets up a two-step process. The investor submits a Form I-526, together 

with evidence of his or her legitimate source of investment funds and of the job-creating capital 

investment project to be funded by the new commercial enterprise invested in. Upon approval of 

the I-526 and availability of a visa number, the immigrant investor may process for admission as a 

conditional lawful permanent resident evidenced by a "green card" (Form I-551) valid for two 

years from such admission. During the 90-day window leading up to the expiration of that green 

card, the investor must submit a Form I-829 to remove the conditions to permanent residence by 

submitting documentation showing that the investor has sustained the investment in the enterprise 

and has created or within a reasonable time will finish creating the minimum of ten jobs per EB-5 

investor in the enterprise (i.e., permanent green card). 

9. USCIS has indicated that in order to meet the EB-5 requirements, all of the 

immigrant investor’s capital must be placed “at risk” in the new commercial enterprise upon 

which the investor’s I-526 petition is based. Relying on Matter of Izummi, 22 I&N Dec. 169 

(AAU 1998),1

 when a regional center is involved allowing credit for indirect job creation, USCIS 

requires that the NCE make all EB-5 capital available to the "job creating enterprise(s)" (JCE(s)) 

and used for job creating purposes and not for payment of marketing and other expenses of 

 

1

 Available at https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3360.pdf. 

Case 3:17-cv-00223-RS Document 177-3 Filed 06/13/17 Page 4 of 11
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009589.0024\4738077.1 5

DEC. ROBERT C. DIVINE ISO RECEIVER’S MOTION FOR ORDER FOR SALE OF RUNWAY

Wendel, Rosen, Black & Dean LLP 

1111 Broadway, 24t h Floor 

Oakland, California 94607-4036 

originating EB-5 capital, of administrative expenses of organizing the new commercial enterprise, 

of regional center or related fees, or of personal expenses of organizers. 

10. According to the USCIS’s Policy Manual on Investors (at Chapter 5(A)(2)), for I829 approval, the investor must show that he or she sustained this at-risk investment through the 

period of conditional residence. The most conservative approach to satisfying this requirement is 

to make sure that the capital remains invested at risk in the job-creating activity of the JCE as 

described in the I-526. However, in a draft policy published August 10, 2015, USCIS suggested 

that an investor could meet the "sustainment" requirement by showing that the capital was lost in 

at risk business activity or, in the event of a liquidation of the NCE's interest in job-creating assets 

after the requisite jobs have been created, by the NCE's "redeployment" of the proceeds in some at 

risk activity for the remainder of the sustainment period. In discussing the draft policy with 

stakeholders in 2015, USCIS representatives also tentatively opined (without recording their 

statements in writing) that the requirement to sustain the investment would end by the time an I829 petition is due, which is at the end of the two-year period that begins upon the admission of 

the EB-5 investor as a conditional permanent resident. 

11. Since publishing the draft 2015 memo, USCIS has not finalized policy about 

liquidation and redeployment, but it has confirmed that USCIS does not require the jobs, once 

created, to persist until the I-829 filing or approval in order to count toward I-829 approval. The 

recently-published USCIS Policy Manual states at Chapter 5(B): 

In making the determination as to whether or not the immigrant investor has 

created the requisite number of jobs, USCIS does not require that the jobs still be in 

existence at the time of the petition to remove conditions adjudication in order to be 

credited to the investor. Instead, the job creation requirement is met if the investor 

can show that at least 10 full-time jobs for qualifying employees were created by 

the new commercial enterprise as a result of his or her investment and such jobs 

were considered to be permanent jobs when created. 

* * * * * 

Direct jobs that are intermittent, temporary, seasonal, or transient in nature do not 

qualify as permanent full-time jobs. However, jobs that are expected to last for at 

least 2 years generally are not considered intermittent, temporary, seasonal, or 

transient in nature. 

Case 3:17-cv-00223-RS Document 177-3 Filed 06/13/17 Page 5 of 11
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009589.0024\4738077.1 6

DEC. ROBERT C. DIVINE ISO RECEIVER’S MOTION FOR ORDER FOR SALE OF RUNWAY

Wendel, Rosen, Black & Dean LLP 

1111 Broadway, 24t h Floor 

Oakland, California 94607-4036 

A Potentially Over-Arching Problem 

12. The SEC complaint alleges that SFRC and its principals commingled the EB-5 

capital, including from CallSocket LP, for these enterprises and diverted much of the capital to 

purposes other than those job creating activities for their respective Enterprises as allowed under 

the EB-5 program. USCIS could determine, as it has in other cases with similar allegations by the 

SEC, that such actions preclude investors from establishing that they met the requirement to 

"sustain investment" in at risk job creating activity, resulting in denial of their I-829 petitions 

regardless of what happens with the Runway asset. This issue will be the subject of more 

discussion in the Receiver's Plan of Recovery. USCIS also could use such actions as a basis to 

terminate SFRC's designation as a regional center, creating an independent basis for denial of I829 petitions of investors, but with I-829 petitions already filed for all CallSocket LP investors 

they might be immune to this particular basis for denial. 

Runway-Specific Issues 

13. In light of the USCIS’ stated policies and its interpretation and application of those 

policies, determining whether the sale of Runway could have a negative impact on the investors’ 

immigration status requires an assessment of two factors: 

(a) Did CallSocket, L.P.’s business plan and economic analysis submitted to 

USCIS with the investors’ I-526 and I-829 petitions show that jobs were created at Runway using 

the investors’ capital for the purpose of satisfying the immigrant investors’ EB-5 requirements? 

(b) Even if that were true, would selling Runway's assets and closing it down 

meaningfully increase the risk of denial of the investors’ I-829 petitions? 

14. As for the first question, I reviewed CallSocket, L.P.’s business plan and that plan 

provided only for the establishment and operation of a call center as a means of direct job creation. 

A copy of the undated CallSocket Business Plan (“Plan” or “Business Plan”) I reviewed is 

attached hereto as Exhibit A and is incorporated herein by this reference. This appears to be the 

same plan that was attached as Exhibit A to the November 21, 2016 Declaration of Max Shapiro 

submitted in support of San Francisco Regional Center LLC’s Supplemental Information 

Regarding Runway dated November 18, 2016 (“SFRC Supplement”) filed in the State Court 

Case 3:17-cv-00223-RS Document 177-3 Filed 06/13/17 Page 6 of 11
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009589.0024\4738077.1 7

DEC. ROBERT C. DIVINE ISO RECEIVER’S MOTION FOR ORDER FOR SALE OF RUNWAY

Wendel, Rosen, Black & Dean LLP 

1111 Broadway, 24t h Floor 

Oakland, California 94607-4036 

Action.2 According to the Plan, the call center would be operated at two locations—one in the 

Tribune Tower at 409-13th Street in Oakland, California, and one in the “Twitter” Building at 1355 

Market Street in San Francisco, California. The Plan anticipated the creation of “at least 191 

direct full-time jobs and 267 indirect jobs for a total of 458 jobs within 24 months of operation.” 

Plan, p. 19. According to the Plan, “[a] wide spectrum of positions will be filled to meet the needs 

of a thriving call center operation, including the positions in the following table and graph.” Plan, 

pp. 19-20. There is no mention of a technology incubator in the Plan. Attached as Exhibit B is a 

September 2011 report of Beacon Economics prepared for San Francisco Regional Center 

estimating the economic impact of investments in a "CallSocket" call center business with 

operations in Oakland and in San Francisco and an unnamed "comprehensive care facility" in 

Oakland (which appears to be a senior housing project completely unrelated to CallSocket) (the 

"Economic Report"). The Economic Report categorizes CallSocket, LP under NAICS code 

561422 for telemarketing bureaus and other contact centers and the broader RIMS II industry 

561400 for business support services. The Economic Report presumes $22.7 million in projected 

revenue based on the business plan, applies the RIMS II multiplier of 20.4832 jobs for each 

million dollars of revenue for that industry and area, and concludes the business would generate 

458.8 total new jobs (direct, indirect, and induced). I presume that this report was given to 

CallSocket investors along with Exhibit A to show USCIS how their investment would create 10 

direct and indirect jobs for them to show USCIS in their I-526 petitions how they would create the 

jobs. 

15. I have reviewed the Declaration Of James D. Yang (“Yang Declaration”) dated 

November 18, 2016, and filed as part of the SFRC Supplement in the State Court Action opposing 

the Receiver's motion in that court for approval to sell Runway. In Paragraph 3 of that declaration, 

Mr. Yang asserts that “CallSocket’s business plan indicated that it would use the EB-5 

investments from foreign investors to create jobs both at its Oakland call-center facility and San 

 

2 Young v. Henderson et al., Case No. RG15778891, pending before the Superior Court of the 

State of California, County of Alameda (“State Court Action”). 

Case 3:17-cv-00223-RS Document 177-3 Filed 06/13/17 Page 7 of 11
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009589.0024\4738077.1 8

DEC. ROBERT C. DIVINE ISO RECEIVER’S MOTION FOR ORDER FOR SALE OF RUNWAY

Wendel, Rosen, Black & Dean LLP 

1111 Broadway, 24t h Floor 

Oakland, California 94607-4036 

Francisco Runway.” The Business Plan makes no reference either to "Runway" or a technology 

incubator. Instead it refers only to call center operations that would potentially be conducted at 

two specific locations in Oakland and San Francisco. Assuming that Exhibit A is the business 

plan submitted by investors to USCIS in their I-526 petitions, Mr. Yang’s assertion in Paragraph 6 

of his declaration that the “sale of CallSocket’s San Francisco Runway will further jeopardize the 

limited partners’ chances of getting approvals on the I-829 petitions because it will cause the 

company to further deviate from its initial plan” is incorrect since the Plan makes no mention of 

Runway or a technology incubator. 

16. I have reviewed the project-related portion of an I-829 petition of an investor who 

filed in 2015. That filing contains a June 1, 2015 letter from Tom Henderson on behalf of 

CallSocket LP, attached as Exhibit C, stating that the company operated its call center operations 

in the Tribune building and used the Twitter building (1355 Market Street in San Francisco) for 

marketing of the call center. Henderson's letter said nothing about a technology incubator. The 

exhibits to the letter contained a printout from an accounting system reflecting categories of 

expenditures for build-out (over $2 million), furniture (over $200,000), and computer equipment 

($55,000) for "Runway, 1355 Market Street." So in effect Henderson claimed to have spent 

significant capital on the facilities we now know as Runway but did not identify for USCIS what 

we now understand to be its type of business. It is not clear to me whether the 2015 letter from 

Henderson consciously hid the different nature of the Runway operations from what had been 

stated in the original Business Plan or whether the use of the Runway facility only later morphed 

into an incubator and technology center. 

17. CallSocket LP and its investors could claim to USCIS that any jobs created through 

investment in Runway as a technology incubator could be credited to the investors because such 

investment was immaterially different from the business plan approved in the I-526 petitions or 

was done after the investors were admitted as conditional residents-- either way within USCIS 

policy. It could be argued to USCIS that the services of a technology company incubator facility 

fall under the RIMS II industry 561400 for business support services, so that the revenues-to-jobs 

multiplier in the Economic Report submitted in the I-526 petitions was still applicable and the 

Case 3:17-cv-00223-RS Document 177-3 Filed 06/13/17 Page 8 of 11
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009589.0024\4738077.1 9

DEC. ROBERT C. DIVINE ISO RECEIVER’S MOTION FOR ORDER FOR SALE OF RUNWAY

Wendel, Rosen, Black & Dean LLP 

1111 Broadway, 24t h Floor 

Oakland, California 94607-4036 

change was not material to the critical USCIS analysis of job creation from the investment. 

However, as stated in Max Shapiro's declaration, "Runway as a technology incubator earns 

revenue in three primary ways: membership fees or desk rental fees, corporate sponsorships, and 

events." It is not apparent that Runway's business creates the concentration of jobs per square foot 

of space or per million dollars of revenue that the Economic Report claims call centers do, and 

USCIS probably would challenge use of the same jobs multiplier for incubator revenues. 

Nevertheless, investors might argue that they need not claim revenues of Runway as a basis for the 

NCE's job creation and instead that Runway served as a vehicle to drive sales and thereby increase 

employment levels of the call center services of CallSocket, as described in the October 27, 2013 

email of Allan Young attached as Exhibit C to Max Shapiro's Declaration. Because Runway has 

been operated as part of CallSocket LP without separate FEIN, the employees of Runway in the I829 package are indistinguishable from the call center employees. I have read in a transcript from 

initial hearings in the State Court Action receivership that there were only six relatively highly 

paid employees at Runway. If that is accurate, the impact of Runway in demonstrating 10 jobs per 

investor for 36 investors is minimal. I have reviewed the project portion of the I-829 petition 

package of the last batch of CallSocket LP investors, and that package suggested that there were 

240 direct jobs. The economic analysis had said that 146 indirect jobs would result from 230 direct 

jobs for a total of 376. With 240 direct jobs, the indirect might be about five more, for a total of 

391. The loss of 6 direct jobs and perhaps 3 indirect jobs from sale of Runway might still leave 

380 jobs, enough to cover the 36 CallSocket LP investors even if (1) USCIS disavowed its policy 

that jobs count even if they are lost before the end of conditional residence and even if (2) USCIS 

found that an obligation to maintain employment lasted beyond the point of I-829 filing. 

18. Moreover, if USCIS considered the use of EB-5 capital for Runway as a "material 

change," then USCIS could consider this a basis for revocation of the I-526 petitions and 

termination of conditional permanent residence of the CallSocket LP investors if it found this 

change to have occurred before the investors were admitted as conditional residents. See USCIS 

Policy Manual Vol. 6, Ch. 4C and 5C. It might be in the investors' best interest, in obtaining I-829 

Case 3:17-cv-00223-RS Document 177-3 Filed 06/13/17 Page 9 of 11
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009589.0024\4738077.1 10

DEC. ROBERT C. DIVINE ISO RECEIVER’S MOTION FOR ORDER FOR SALE OF RUNWAY

Wendel, Rosen, Black & Dean LLP 

1111 Broadway, 24t h Floor 

Oakland, California 94607-4036 

approval, for CallSocket LP to sell Runway and use the proceeds to create more jobs in the call 

center industry that was the subject of the Business Plan and economic analysis. 

19. Even if one investor has not yet filed his or her I-829 Form for the same reasons 

stated above the loss of jobs resulting the sale of Runway probably would not itself negatively 

impact that investor's I-829 adjudication if enough job creation to cover that investor had occurred 

before the sale. 

20. The analysis above relates only to the requirement of job creation. USCIS also 

requires that each investor sustain his or her investment through the end of conditional residence. 

USCIS has not clarified exactly when the "sustainment period" ends. The safest course for 

investors and NCEs is to sustain the investment to the point of USCIS adjudication of the 

investor's I-829, but USCIS has informally indicated that it may find instead that the sustainment 

requirement ends at the end of the two year period following the investor's admission, which 

coincides with the due date for filing the investor's I-829 petition. In a draft policy document 

USCIS has suggested that, in the event of a liquidation of an NCE's job-creating assets after the 

creation of sufficient qualifying jobs, the investor can be found to have sustained the investment if 

the NCE "redeploys" the liquidated capital in some other "at risk" investment. USCIS has not 

finalized the policy and has not clarified such questions as what constitutes such at risk 

investment, how much time may pass between liquidation and re-deployment, etc. 

21. It is my understanding that almost all of the CallSocket, L.P. investors had already 

filed their I-829 petitions prior to the closing of the call center on July 20, 2016. For USCIS 

purposes, pursuant to the USCIS policy quoted above in paragraph 11 of this Declaration, so long 

as the claimed jobs were created before the end of the two year period of conditional residence, the 

fact that the jobs are no longer in existence while their I-829 petitions are pending should not harm 

their immigration status or trigger a denial of their I-829 petitions. Therefore, I do not expect that 

sale of any of the assets after the filing of all investors' I-829 petitions will subject the I-829 

petitions to denial, since I think the obligation to sustain the investment ends at the point of such 

filing. 

Case 3:17-cv-00223-RS Document 177-3 Filed 06/13/17 Page 10 of 11
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009589.0024\4738077.1 11

DEC. ROBERT C. DIVINE ISO RECEIVER’S MOTION FOR ORDER FOR SALE OF RUNWAY

Wendel, Rosen, Black & Dean LLP 

1111 Broadway, 24t h Floor 

Oakland, California 94607-4036 

I declare under penalty of perjury that the foregoing is true and correct and that this 

declaration was executed on June 7, 2017 at Chattanooga, Tennessee. 

 /s/ Robert C. Divine 

 ROBERT C. DIVINE 

Case 3:17-cv-00223-RS Document 177-3 Filed 06/13/17 Page 11 of 11