D.C. Circuit Court Rules Derivatives Count Against EB-5 Visa Cap

07.12.21 | Government Affairs

On Friday, July 9, 2021 the D.C. District Court ruled that family members count towards the annual EB-5 visa cap. The ruling found that existing immigration law requires the spouses and children on the principle EB-5 investors to be tailled the same as other visa categories. The full ruling can be reviewed below. 

IIUSA continues to advocate for investor protections, solutions to EB-5 visa backlogs, and derivative relief. IIUSA Exectuve Director, Aaron Grau, was quoted in a Law360 article on the decision stating “We believe Congress developed the EB-5 visa to faciliate economic development and job creation and that the law should be interpreted as such: faciliting the most number of investor visas possible” continuing “This case represented a well-reasoned legal solution to provide that relief and economic stimulus.” 

To learn more about IIUSA’s ongoing advocacy efforts please visit our advocacy page here

From the Ruling 

The Immigration and Nationality Act makes a limited number of visas available to foreign investors who create jobs in the United States. It also grants investors’ spouses and children the “same status” and “same order of consideration” for those visas as the investors. 8 U.S.C. § 1153(d). When the Department of State calculates how many visas it may issue for foreign investors, it includes an investor’s spouse and children in the total count. So, for example, if there are 10,000 investor visas available in a year, and if the first 3,000 of those visas go to investors with 7,000 spouses and children, no additional visas are available to foreign investors.

 

The Plaintiffs challenge this counting practice. They claim the Department should have stopped counting family members against the total number of investor visas after Congress relocated the controlling text within the Act in 1990. We disagree. The Act required the Department’s approach before 1990, and it still does. Congress did nothing in 1990 to change the text’s meaning. We therefore affirm the district court’s dismissal of the Plaintiffs’ lawsuit.

 

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