A lawsuit by a foreign investor who did not get a green card as part of her $500,000 investment into the Ragged Mountain ski area expansion is set for trial in June.
Olga Liytovskikh’s civil case against NH Mountain LP, which was also known as New Hampshire Ragged Mountain Resort Investment Limited Partnership, will be held in Merrimack County Superior Court.
Liytovskikh was among around 70 foreign investors who invested more than $500,000 apiece during the last decade into the $35 million Ragged Mountain expansion project. The investments were connected to the EB-5 program which encourages foreign investors and offers a pathway to immigrant visas, or green cards.
While an estimated 50 of the investors had their immigrant visa applications approved, as many as 20 like Liytovskikh did not. She alleges that NH Mountain LP breached their subscription agreement by not returning her $500,000 investment after she was denied an immigrant visa by the United States Citizenship and Immigration Service (USCIS) in 2021.
In December 2022, Merrimack County Superior Court Judge John Kissinger allowed Liytovskikh’s case to move forward by rejecting three NH Mountain LP motions to dismiss the case. Liytovskikh brought counts of breach of contract, a violation of the state’s consumer protection act, and unjust enrichment.
In addition to not receiving a refund after her green card application was denied, Liytovskikh has accused NH Mountain LP in court filings of not only failing to complete its renovations plans that the investments were based on but never intended to do so.
NH Mountain LP has denied all accusations in its court filings. Jason Gottlieb, a New York-based lawyer representing NH Mountain LP, told NH Business Review in an email, “We are aware that some investors were denied green cards because they could not satisfy the USCIS conditions, for reasons having to do with their own personal situations, and nothing to do with Ragged Mountain. While we will not comment on any individual situations, refund requests from such investors are handled, as they must be, on a case-by-case basis depending on their situation, with an eye on maintaining the integrity of the project, so that it continues to create jobs and provide green card eligibility for all of its EB-5 investors.”
Michael Tierney, a Manchester based co-counsel for Liytovskikh, said his client was not denied a green card for personal reasons. In an August 2022 court filing, Tierney and Florida co-counsel Andre Raikhelson said the denial “was because the USCIS determined that Ragged Mountain had not kept up to its end for site improvements and required job additions, which was required for green card approval of investors.”
Charlie Elison, a USCIS public affairs officer, declined to comment on the Liytovskikh case or the status of the Ragged Mountain EB-5 program. “As a matter of practice, and due to privacy considerations, USCIS does not comment on individual immigration cases, and the agency cannot share, confirm or deny immigration information about specific individuals,” he said in an email.
Judge Kissinger had also cleared the way for a December trial by investor Sergei Simakov against NH Mountain LP. But Tuvia Slayton, Simakov’s Florida lawyer, said his client had recently reached a settlement and the lawsuit was on track to be dismissed.
The EB-5 program has had its shares of compliant hits and some fraudulent misses since it was created in 1990 by Congress to stimulate the economy through job creation and capital investment by foreign investors. In particular, each investment must, at a minimum, create or preserve 10 permanent jobs.
The Securities and Exchange Commission undertook 45 successful fraud enforcement actions against EB-5 programs from 2016 to 2021, according to a 2023 Government Accountability Office report. During the same period, the U.S. State Department issued more than 37,000 visas for EB-5 applicants and their family members, and refused over 3,600 EB-5 visa applications.
Though rare, some of the most publicized fraudulent cases during the past decade were in California, New York and at Jay Peak in Vermont. Charges were brought in 2016 in the Vermont case, and the civil and criminal cases led to the imprisonment of the resort’s former owner and president and more than $200 million in monetary penalties. The state of Vermont eventually reached a $16.5 million settlement with defrauded Jay Peak investors in 2023.
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