On Apr 27 2020 by H. Ronald Klasko
How to Prevent EB-5 Numbers from Being Lost Forever
The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
Demand for EB-5 visas from qualified job creating investors far exceeds the congressional limit of approximately 10,000 immigrant visas per year (including family), resulting in lengthy quota backlogs for most EB-5 investors, and up to 15 years for investors from China.
For a combination of reasons that will be discussed below, despite the huge demand and the lengthy quota backlog, EB-5 numbers for this fiscal year will likely not be used, in large quantities, and will be lost forever.
President Trump issues an Executive Order (“Proclamation”) stating that virtually all immigrant visa categories will be shut down for the next 60 days. Most expect that the ban on immigrant visas will be extended beyond 60 days, possibly through the election. Notably, EB-5 is exempted from the immigrant visa ban, presumably because the ban is based on unprecedentedly high unemployment whereas EB-5 is a job-creating visa.
I suggest that at a time when EB-5 demand is far greater than supply, qualified EB-5 immigrants are waiting in line, EB-5 quota numbers are in jeopardy of being lost forever and the President issues an Executive Order favoring EB-5 because of the importance of job creation especially in these times, we should not be sitting back and allowing the EB-5 numbers to be lost. The good news is that we are not sitting back and waiting.
There are six reasons why we are in jeopardy of EB-5 numbers not being used this year in large quantities and being lost forever:
- USCIS processing times are longer than ever (with USCIS considering 4 years to be average processing time). Fewer I-526 petitions are being adjudicated than at any time in recent memory.
- For EB-5 investors with approved I-526 petitions who are in the U.S., USCIS has increased processing times for the I-485 applications and in many cases instituted an interview requirement, which creates further delays.
- Many EB-5 immigrants with approved I-526 petitions who have been interviewed for their immigrant visas at U.S. consulates have been placed in indefinite administrative processing with no reasons given.
- The Department of State, faced with the spectrum of EB-5 numbers being lost, decided to move Chart A for China by only a total of 6 weeks during the last 2 months.
- Faced with the spectrum of lost EB-5 visas, USCIS has chosen not to implement Chart B, which would allow for more adjustment of status applications that could be adjudicated during this fiscal year.
- S. consulates are closed around the world, resulting in delays in interviewing investors with approved I-526 petitions. The good news is that it is likely that consulates will be reopening in plenty of time for EB-5 applicants with approved I‑526 petitions to be scheduled for interviews this fiscal year, especially if no interviews can be scheduled for other immigrants because of the Executive Order.
There are two possible strategies for preventing the loss of EB-5 numbers forever. The first strategy would be to get USCIS and the Department of State, on their own initiatives or with prodding from the Administration, to take steps to expedite the processing of all EB-5 petitions, EB-5 immigrant visa applications and EB-5 adjustment of status applications. This author views the chances of that happening as being exceedingly slim.
The other option is litigation, and that is the option that our law firm will be pursuing imminently because time is short.
Depending upon the number of interested investors, we intend to file at least three or four separate multiple plaintiff mandamus/APA unreasonable delay complaints in federal court in early May.
- Complaint seeking USCIS expeditious adjudication of adjustment of status applications for approved EB-5 immigrants.
- Complaint seeking expedited adjudication of pending I-526 petitions to enable those applicants to complete the adjustment of status process or immigrant visa process by the end of this fiscal year.
- Complaint seeking expedited adjudication of all DS260 immigrant visa applications for EB-5 immigrants who have already been interviewed and whose applications are in administrative processing.
- Complaint seeking expedited adjudication of all EB-5 immigrants with approved I-526 petitions who have filed DS260 immigrant visa applications and are awaiting interviews.
All of these complaints will share certain elements in common:
- They will all seek adjudication before September 30, which is the end of the fiscal year and the date on which unused EB-5 numbers will be lost;
- They will all include counts for mandamus and unreasonable delay under the Administrative Procedure Act;
- They will all cite to the Executive Order, both for the proposition that the Executive Order indicates a clear intention to give priority to EB-5 and because the result of the Executive Order is that no other immigrant visas can be issued;
- All complaints will include as many plaintiffs as possible since relief will only apply to the named plaintiffs. It is our goal to have as many EB-5 immigrants approved for immigrant visas during this year’s quota, both to ensure usage of all available EB-5 numbers this year and to prevent the largest number of people possible going into the next year’s quota.
There are only five months left in this fiscal year. Quick action is necessary. Anyone interested in learning more about, or participating in, this litigation strategy should contact a member of the Klasko EB‑5 team:
Ron Klasko at firstname.lastname@example.org
Dan Lundy at email@example.com
Anu Nair at firstname.lastname@example.org
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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