State Department, DHS, sued over backlog of investor visa documents


An immigrant investor group is suing to force the Biden administration to process visas and adjusting 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 disadvantaged areas, and create at least 10 jobs. But lawmakers failed to reach an agreement to reauthorize the EB-5 regional center program – which allows multiple investors to pool funding in large companies – before it expires last June. .

The legal reauthorization is only needed to prioritize investor applications in these regional hubs, but the expiration has been misinterpreted as applying to visa issuance, said Jon Wasden, partner at Wasden Banias LLC and alliance lawyer.

“The suit argues that they misinterpreted the forfeiture as applying to the entire program,” he said in an interview.

Investors from India, Russia, Canada, Brazil and the Czech Republic say the State Department and the United States Citizenship and Immigration Services, a unit of the Department of Homeland Security , violated the Administrative Procedure Act by not processing immigrant investor applications under the EB. -5 program since authorization expired. They also argue that the freeze on applications stems from a misunderstanding of agency authority.

Their lawsuit, filed Thursday in U.S. District Court for the District of Washington in Seattle, argues that the government should simply pull visas for these regional hub investors from the same pool for all other foreign domestic investors.

Previous court decisions

If a foreign investor is outside the United States, they can 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 can use an approved petition to request an adjustment of status to become a lawful permanent resident.

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

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

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

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

The State Department and USCIS did not immediately respond to emailed requests for comment on the lawsuit.

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


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