EB-5 Investors File Lawsuit Against USCIS Claiming the Agency is Unlawfully Refusing to Process Their Applications

02.21.22 | Government Affairs

A group of current EB-5 regional center investors has filed a lawsuit against U.S. Citizenship and Immigration Services (USCIS). The investors who applied prior to the EB-5 lapse in June 2021 argue that the Immigration and Nationality Act requires USCIS to process their applications regardless of EB-5 reauthorization status.

In the complaint, the investors argue that the expiration of the Regional Center Program meant that USCIS no longer needed to grant a preference for EB-5 applications but that the INA still required the agency to process existing applications and set aside the visas for qualified applicants.

IIUSA remains confident in the advocacy efforts to ensure a long-term reauthorization for the Regional Center Program but also believes it is critically important to protect good-faith investors regardless of the Programs status. The full complaint can be reviewed below:

From the Compliant

“Defendants refuse to issue immigrant visa numbers to Plaintiffs based on Defendants’ unlawful application of, or failure to apply, the Public Law section creating the Regional Center Program and providing for a general set aside of visas for those investors with approved petitions involving investments in authorized regional centers. See Public Law No. 102-395, Title VI § 610(a) (Oct. 6, 1992); see also 8 U.S.C. § 1153, Statutory Notes – Immigration Program. The text and plain meaning of the Section 610(a) of the Public Law and 8 U.S.C. § 1153(b)(5)(A) unambiguously require Defendants to set aside visas for foreign national investors with petitions based on their investments under the Regional Center Program. Defendants attempt to justify their withholding of visa numbers based on Congress’s failure to extend the temporal designation under a separate provision of the Public Law relating to a specifically earmarked set aside of visas for the Regional Center Program on a provisional basis. See Public Law No. 102-395, Title VI § 610(b); see also 8 U.S.C. § 1153, Statutory Note – Immigration Program. However, despite the lapse of the temporal designation under Section 610(b) of the Public Law, Section 610(a) of the Public Law remains in effect and requires Defendants to issue visa numbers to Plaintiffs from the general pool of visas specified in 8 U.S.C. § 1153(b)(5)(A) in line with all other foreign national investors not participating in the Regional Center Program. By withholding visa numbers from Plaintiffs, Defendants misapply or fail to apply Section 610(a) of the Public Law contrary to the text and plain meaning of that provision and 8 U.S.C. § 1153(b)(5)(A).”

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