Last week the US Court of Appeals for the District of Columbia found that EB5 immigrant investors do not have unreasonable wait times when the US Citizenship and Immigration Services fails to follow its own rules for adjudicating the petitions. The immigrant investor plaintiffs also alleged that even if USCIS was following its own policy, that wait times are unreasonable. However, the court ruled that excessive wait times are not unreasonable. Specifically, the court stated,
“The period that Plaintiffs’ petitions have been pending includes both the nine month pause in statutory authorization and the serious practical challenges posed by a global pandemic.”
“Considering those obstacles together with the competing demands on the agency, we cannot say as a matter of law that the processing time itself establishes that USCIS lacks a rule of reason.”
IIUSA filed an amicus brief in the matter in support of the plaintiff immigrant investors. IIUSA’s amicus can be reviewed in its entirety below.
IIUSA AMICUS BRIEF IIN THE MATTER
A group of South African immigrant investors lost a challenge to what they say are unreasonable wait times in getting their visa petitions adjudicated after a federal appeals court sided with the government in the case The EB-5 investor visa applicants alleged in two consolidated cases that US Citizenship and Immigration Services failed to follow its own rules for adjudicating the petitions, instead processing some petitions out of order in instances of favoritism.
Even if the agency was following the official policy, the wait times they faced were unreasonable, they argued.
But suggestions of misconduct don’t support a finding that USCIS isn’t following official policy, the US Court of Appeals for the District of Columbia Circuit found Friday. Nor do wait times alone show unreasonable delays, according to the court.
“The period that Plaintiffs’ petitions have been pending includes both the nine month pause in statutory authorization and the serious practical challenges posed by a global pandemic,” Judge Cornelia Pillard wrote for the court. “Considering those obstacles together with the competing demands on the agency, we cannot say as a matter of law that the processing time itself establishes that USCIS lacks a rule of reason.”The D.C. Circuit affirmed findings by two lower courts that the plaintiffs hadn’t made a legally viable claim of unreasonable delays. The requested relief, the appeals court found, would also involve “line-jumping” by putting them ahead of other applications who had filed visa petitions earlier.
