Like many organizations, IIUSA relies on the Freedom of Information Act (FOIA) to gather data from the federal government and the U.S. Citizenship and Immigration Services (USCIS) in particular. The information we request and receive is broken down and analyzed for data reports to identify industry trends like growing and shrinking investor markets, USCIS processing times and procedures, petition adjudication information, and agency activity and trends.
The information is critical to the guidance we provide our members; a valuable resource for succeeding in the EB-5 marketplace. To this end, the federal government’s replies’ timeliness is just as important as the information itself.
Previous articles on IIUSA’s FOIA process were written in Spring 2018 and Fall 2019. They demonstrated the increasingly frustrating FOIA process, particularly the exponentially growing time between USCIS receiving a request and USCIS sending responsive records. Amazingly, IIUSA often waits well over a year to receive responsive records from our requests. In many cases, we wait 2+ years. This trend, we determined, was unacceptable.
In December 2019, IIUSA requested USCIS’s EB-5 adjudicator training materials for I-526 petitions. Two separate requests were made: one for I-526 adjudications for petitions received before November 21, 2019 and one for I-526 adjudications for petitions received on or after November 21, 2019, the date the new EB-5 regulations were implemented.
Importantly, our requests cited remarks from Immigrant Investor Program Office (IPO) Chief Sarah Kendall at IIUSA’s 2019 EB-5 Industry Forum in Seattle who noted that IPO updated I-526 adjudicator training in the past year.
FOIA statute requires a response within 20 days of receiving the request, not counting weekends and public holidays. This time, when the 20 days elapsed with no response, IIUSA went to work filing a lawsuit to compel USCIS to send us responsive records.
Our lawsuit finally produced a court ordered “Joint Status Report” requiring USCIS to produce the responsive records: Nearly 2,000 pages worth in 500-page increments, beginning July 31, 2020!
We are happy to report that IIUSA received the first installment of these records and is in the process of combing through, analyzing, and summarizing them. A full report of what the materials contain will be available to IIUSA members soon. In the meantime, IIUSA members have access to review the records themselves in the Member Portal.
While we prefer that FOIA responses come in the traditional and timely manner, USCIS and the National Records Center have shown they cannot be relied on to do so. IIUSA will continue to use the courts to compel necessary and critical documents to better inform the EB-5 industry and IIUSA members on agency policy, procedure and data.