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EB-5 2022 Regional Center Litigation FAQ

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EB-5 2022 Regional Center Litigation FAQ

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EB-5 2022 Regional Center Litigation FAQ

1. Who are the lawyers filing this case?

IMMpact Litigation, a joint litigation venture of the law firms Joseph & Hall in Denver, Kuck Baxter in Atlanta and Siskind Susser are teaming with award-winning EB-5 luminaries The Galati Law Firm (Philadelphia) in filing this case.

IMMpact Litigation’s lawyers are some of the most respected immigration attorneys in the country and the team has already had a number of major mass action victories including in Goh v. Blinken, Purdue University et. al. v. Scalia, Milligan v. Trump and Humane Society of New York v. Mayorkas. Matt Galati has also litigated a number of EB-5-related cases including the key mandamus cases Gutta v. Renaud and Nandu v. Jaddou. For more information, visit www.immpactlitigation.com and www.galati.law.

2. Who is the lawsuit aiming to help?

We are looking to assist individuals who a) have a pending I-526 immigrant investor petitions, b) have an approved I-526 and pending, related I-485 Adjustment of Status applications, or c)  have an approved I-526 and related immigrant visa applications pending with the Department of State. These applicants are facing delays and possible denial of their applications because USCIS has delayed adjudicating their immigration benefits and is now threatening to deny cases as a result of Congress’ failure to extend a provision of the law that reserves 30% of EB-5 visas for regional center applicants.

We confirm, based on our sources, that USCIS has informed congressional offices that it will deny EB-5 regional center related unless Congress takes action before March 12, 2022.

We will be seeking the following –

  • A court holding (declaratory judgment) that USCIS is citing a provision of the Immigration and Nationality Act which does not apply to its claim that it cannot adjudicate regional center EB-5 filings. In fact, the statute cited merely sets a minimum for EB-5 regional center visas to be allocated to an annual quota, and the remainder of the EB-5 allotment of visas is, in fact, available to regional center applicants as well. In other words, there is no statutory basis for the agency failing to adjudicate properly filed regional center-based EB-5 petitions or green cards.
  • If we are not successful, and USCIS and the State Department are allowed to deny cases, we will seek a full refund of all government filing fees paid by EB-5 applicants since they are not getting the service they paid for.
  • If we are successful and USCIS and the State Department are ordered to resume adjudications, we will pursue a writ of mandamus / APA suit alleging that the government has unlawfully delayed this application, and request a court order to adjudicate them immediately.

Note that in addition to direct pressure on USCIS and the State Department, we also hope that this case will put pressure on Congress to take action on or before March 11.

3. What is the legal basis for the suit?

Section 203(b)(5) of the Immigration and Nationality Act states

(A) In general 

Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise (including a limited partnership)- 

(i) in which such alien has invested (after November 29, 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C), and

(ii) which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant’s spouse, sons, or daughters).

(B) Set-aside for targeted employment areas

(i) In general

Not less than 3,000 of the visas made available under this paragraph in each fiscal year shall be reserved for qualified immigrants who invest in a new commercial enterprise described in subparagraph (A) which will create employment in a targeted employment area.

The part of the statute that has expired is the reservation (i.e. the floor) of 3,000 visas and not the regional center program itself. Yet, we will argue, USCIS has illegally treated the entire program as it were defunct.

As discussed above, the case will further seek a writ of mandamus based on inordinate delays by the State Department and USCIS. A writ of mandamus is a judge’s order to the government to immediately adjudicate a case that has been unreasonably delayed. Many EB-5 applicants have been waiting an unreasonable amount of time for their petitions, adjustments of status, and visas. We will also explain that for many, if USCIS and the State Department had timely adjudicated their cases, they would have been completed before the supposed expiration of the section of the statute USCIS and DOS are pointing to as justification for their failure to process cases.

Finally, if USCIS and the State Department prevail against our main argument and the cases face denial, we will seek refunds of all filing fees. While we know this will not make plaintiffs whole for the ordeal the agencies have inflicted on them, pursuing refunds will be an expensive price for the agencies to pay and may provide an additional incentive for them to settle this case by agreeing not to deny these cases.

4. What is the deadline to sign up to be in the case?

We anticipate that March 5, 2022 will be the deadline to sign up, and hope to file before March 12, 2022 If the case is ready to file and we have enough plaintiffs, we may file sooner. We do not guarantee that we will accept plaintiffs up to any particular date.

5. What remedy is this litigation seeking? What does a win look like?

Simply speaking, we are seeking to force the government to immediately adjudicate the applications of the plaintiffs in our litigation. We believe the basis for not working these cases is illegal and we believe the government should not only adjudicate the cases, but speed up processing for everyone affected.

A win will mean the resumption of processing of our plaintiffs’ cases and, hopefully, an order from the court to adjudicate the cases quickly. And if we fail to get this, we will seek a refund of all fees paid by our plaintiffs for the processing of their EB-5 cases.

6. Why is the case not being handled as a class action?

We have made the decision, as of now, not to handle the case as a class action because we believe the process of certifying a class will slow down our efforts and we may have less flexibility in the types of remedies available to our plaintiffs.

7. Where is the case being filed?

We are still researching which court is best for filing. However, the case will not be filed in jurisdictions we have identified where the mandamus claim is likely to fail or where there is negative precedent for our arguments.

8. How long will it take to get results?

We could start to see results soon after the case has been filed. We will be seeking a preliminary injunction and expect a hearing within a few weeks to a few months of filing. The preliminary injunction hearing is the hearing where a judge can order temporary relief until the case eventually gets to trial. For most, this is actually a more critical finding than the eventual decision in the case.

If we win on both the interpretation of the law and the mandamus claim, we would expect benefits for our plaintiffs to be adjudicated within a few weeks of the judge issuing his/her order. If we win on the mandamus and the government is not moving these cases in a satisfactory manner, we will seek redress from the court. The government can be held in contempt by a judge if they fail to move these cases.

9. Will there be a risk of backlash if I participate in the case?

We have found over the years that the opposite tends to be the case – people who file a lawsuit are likely to get better treatment than people who don’t. Knowing that an applicant is not afraid to sue – something that is time-consuming and expensive for the government to have to defend – usually means that the litigant will be treated respectfully. Among our thousands of plaintiffs for previous and ongoing mass litigation cases, we have not yet heard of any situation of government retaliation against a plaintiff. We firmly believe suing for mandamus has no effect on the ultimate outcome of a case and instances of “retaliation” are essentially non-existent.

Note that we are filing to speed up processing on these cases. If an individual’s case has significant problems, suing the government is not going to solve that.

10. What are the odds of success?

Any lawyer who promises success in litigation is not serving a client well. Litigation is unpredictable by nature. This case is not bullet-proof, nor is any similar case.  We do not know which judge will be assigned to the case, for example. We have had success when it comes to fighting similar cases and we also believe our arguments are strong and have been bolstered by what we have learned in those cases. So we are optimistic. But we do not believe it is appropriate to quantify odds.

11. What if I already have a lawyer or have filed a mandamus case?

We are not representing you with respect to your individual case and cannot advise on your individual case strategy. If you are represented by counsel, you should talk about the pluses and minuses of joining the lawsuit and whether it makes sense for you.

If you are already independently pursuing a mandamus action, you may join the case but we must exclude you from the mandamus part of this case. Accordingly, if we win on the statutory interpretation claim, USCIS or the State Department would have to consider your case and your existing mandamus complaint would be boosted by this decision. Also, if your case is denied and we are seeking a fee refund, you would also be able to participate in that part of the case.

12. What is the fee to participate in the litigation?

We are charging each family $4000 to participate in the case ($3000 for members of the American Immigrant Investor Alliance). The fee is a one-time charge and we will not be billing for additional expenses, court filing costs, travel, local counsel, or other legal fees. The fee is due at the outset. We will be tracking our hours for this case and if someone who retains us withdraws shortly after submitting the representation agreement and payment, but before filing, we would be able to offer a partial refund. However, once the complaint has been drafted and filed with the court all fees will be considered earned and no refunds will be issued after that point.

Note that one of the goals of this legislation is to pressure Congress to extend the visa set aside expiration date and, as such, their extending the program should be viewed as a win by our plaintiffs. We will NOT refund litigation fees if Congress extends the program except that in the case of those with pending mandamus cases who would not be participating after a congressional extension, we will refund 25% of their fee within 21 days of Congress’ extension.

Please note we are moving quickly on this lawsuit and aim to file no later than March 12th, barring Confressional action before that time.

NOTE THAT WE RESERVE THE RIGHT TO DECLINE TO PROCEED WITH THE CASE IF WE DO NOT HAVE 100 PLAINTIFFS WHO HAVE RETAINED US BY MARCH 10TH. IF WE, IN OUR OWN PERROGATIVE, DECIDE NOT TO PROCEED BECAUSE OF LACK OF PLAINTIFFS, WE WILL REFUND FEES IN FULL WITHIN 21 DAYS.

13. How will communications work?

We will have weekly livestreams to brief plaintiffs on the progress in the case and answer questions and we send out emails to clients when there is news on the case. We will also open a Telegram Channel for real-time communication.

We do NOT have the ability to discuss your individual case situations that involve representation of lawyers outside of this suit. You should be hiring (or probably already have hired) a lawyer on an individual process if you need to do this and you are welcome to hire any of the firms co-counseling on this case if you need talk to an immigration lawyer and do not have counsel already. Links to each firm are provided at the top of this document.

We also generally do not have the ability to answer your individual emails. We ask that you communicate with us about your cases ONLY via a web form we will make available after the complaint is filed in the case. Again, if getting your individual questions answered is a priority, you should consider filing your case individually. We have created a web form that you can use to update us about your individual cases. And you are welcome to post questions in our regular livestreams and/or telegram.

We also ask that you do not copy us on your emails to the IPO, NVC and the consulates. Instead, please share correspondence from the agencies in the web form for we are going to provide.

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