EB-5 Regional Center and Investors File Lawsuit against U.S. Government to challenge visa allocation policy

 

A group of more than 450 Chinese EB-5 investors have filed a lawsuit against the U.S. government to challenge how the United States Citizenship and Immigration Service (USCIS) allocates visas under the EB-5 Alien Entrepreneur (EB-5 immigrant investor) visa category in an effort to reduce the growing visa backlog and waiting time for Chinese investors. The lawsuit alleges that the way the USCIS allocates visas under the EB-5 visa category is incorrect and should be changed.

Under current USCIS policy, one visa is allocated to the investor and each dependent family member.   Under this method, a family of four would use four visas.  This is important because there are approximately 10,000 EB-5 visas available each year, and for Chinese investors, the demand is so high that a Chinese investor and his family who begins the process now may wait up to 15 years for a visa to become available.   The lawsuit seeks to obtain a judicial ruling that the allocation of EB-5 visas should be made as one visa per investor including his or her dependents.   This would free up many of the 10,000 visas to be available for more investors and their family members.

The lawsuit is based on discussion in Congress at the time of enactment of the EB-5 visa category (by the Immigration Act of 1990) that allegedly indicates that it was the intent of the legislators that visa allocation should be made as one visa per investor including dependents.   Most stakeholders in the EB-5 industry hope that this allocation method can be adopted.  However, it is important to note that this method of visa allocation is used for all family and employment based preference immigrant visa categories so absent clear indication in the congressional record, it seems unlikely this USCIS policy would be overturned.

Don’t count on relief of a successful outcome anytime soon.  A lawsuit like this on such an important issue will probably take years to reach a final conclusion.  Of course, a Chinese investor might still shave of years of waiting time if the lawsuit is successful.

How would this impact Vietnamese investors?  It is difficult to predict if a successful outcome would significantly impact the estimated 6 year waiting time for Vietnamese investors who file an I-526 Petition today because there are so many Chinese investors already in the waiting line, but with 7% of EB-5 visas guaranteed for Vietnam, or 700 visas, counting only the investor and not all family members might reduce the waiting time to just a year or maybe not at all.

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