Investor Immigrants Sue State, DHS, Over Idled Visa Program (2)

A group of immigrant investors is suing to force the Biden administration to process visas and adjustment of status applications in limbo since congressional authorization for an investor visa program expired last year.

The EB-5 visa program allows immigrants to obtain a green card if they invest $1 million, or half that amount in economically depressed areas, and create at least 10 jobs. But lawmakers failed to reach a deal to reauthorize the EB-5 Regional Center program—which allows multiple investors to pool funding in large enterprises—before it lapsed last June.

Statutory reauthorization is only necessary to prioritize applications for investors in those regional centers, but the expiration has been incorrectly understood to apply to the issuing of visas at all, said Jon Wasden, a partner at Wasden Banias LLC and an attorney for the alliance.

“The suit is arguing they wrongly interpreted the lapse as applying to the whole program,” he said in an interview.

Investors from India, Russia, Canada, Brazil, and the Czech Republic claim that the State Department and U.S. Citizenship and Immigration Services—a Department of Homeland Security unit—have violated the Administrative Procedure Act by failing to process applications for immigrant investors under the EB-5 program since the authorization expired. They also argue that the freeze on applications stems from a misunderstanding of the agencies’ authority.

Their lawsuit, filed Thursday at the U.S. District Court for the District of Washington in Seattle, contends that the government must simply draw visas for those regional center investors from the same pool for all other foreign national investors.

Previous Court Rulings

If a foreign investor is outside the United States, they may use an approved EB-5 petition to apply for an immigrant visa at a U.S. consular office. If they are already in the country, they may use an approved petition to apply for an adjustment of status to become a lawful permanent resident.

Before authorization for the regional center program expired, judges sided with the government in multiple lawsuits alleging unreasonable delays by immigration officials in processing EB-5 visa applications. But a federal judge last year also threw out a Trump administration rule raising minimum amounts EB-5 investors must commit for green cards.

Instead of alleging unreasonable wait times, the alliance’s lawsuit argues that DHS and the State Department unlawfully withheld administrative actions.

The EB-5 program has operated on a pilot basis for decades. A bipartisan reauthorization bill (S. 831) would have included new measures to tackle fraud in the program. It was blocked on the Senate floor when lawmakers sought to advance it through unanimous consent.

The lawsuit asks the court to order the State Department to adjudicate pending visa applications submitted by plaintiffs and order USCIS to adjudicate petitions and adjustment of status applications from the plaintiffs.

U.S. Citizenship and Immigration Services and the Department of State said in separate statements that they do not comment on pending litigation.

The case is Bajaj et al v. Blinken et al, W.D. Wash., 2:22-cv-00189, 2/17/22

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