EB-5 2022 Regional Center Litigation FAQ

EB-5 2022 Regional Center Litigation FAQ

1. Who are the lawyers filing these cases?

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 are the lawsuits aiming to help?

We are looking to assist individuals who a) have 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 have faced severe delays because agencies have refused to process their cases since December of 2021, due to an unlawful interpretation of the law authorizing EB-5 Regional Center green cards.  Congress has now taken action by changing the EB-5 law and confirming that pending applications will be “grandfathered” (adjudicated under the law existing at the time the application was filed). However, the government is still refusing to process these cases; the State Department’s April Visa bulletin shows EB-5 visas as “unavailable,” and we fear that USCIS will incorrectly claim that they need to implement new regulations before adjudicating these cases.

We will be filing three separate lawsuits for each of the three groups of plaintiffs:

• Individuals with a pending I-526 Petition (filed before March 15, 2022) 
• Individuals with an approved I-526 Petition and pending I-485 adjustment of status application. We will also include folks who were unable to file I-485 adjustment of status applications during the period USCIS refused to accept or adjudicate them,
• Individuals with an approved I-526 Petition and pending DS-260 for immigrant visa processing at a consulate. We will also include individuals who wanted to file a DS-260 but were unable to during the period that DoS refused to accept them. 

3. What will the lawsuits be asking for?

We will be requesting that the judge in each case do the following:

• For pending I-526 cases: a writ of mandamus ordering USCIS to promptly adjudicate our plaintiffs’ cases.
• For pending I-485 cases: a writ of mandamus ordering that USCIS promptly adjudicate our plaintiffs’ cases
• For pending consular cases: a writ of mandamus ordering that the Department of State promptly process these cases through the NVC and the consulates

4. What is the legal basis for the suit?

Before it was revised on March 15, Section 203(b)(5) of the Immigration and Nationality Act stated:

(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 had expired was 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 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 were pointing to as justification for their failure to process cases.

We will also argue that the Department of State is illegally misinterpreting the new law by refusing to make visa numbers available to EB-5 applicants in April.  If the agencies do not act on these cases soon, visa numbers for Fiscal Year 2022 may be wasted, and plaintiffs will have to wait even longer for their green cards.

5. Why would I join your EB-5 suit versus other mass litigation suits?

While we do not opine on the merits of other cases or the qualifications of other firms, there are a couple of factors that we think worth noting when deciding which suit to select:

• The lawyers in this IMMpact Litigation case not only have extensive mass litigation experience (including cases with well over 1000 plaintiffs), but they’re substantive immigration law experts as well. They’re not just hired litigators suing on an immigration issue and relying on outside substantive experts to explain the immigration system to them. The venture’s partners have over 100 years of experience actually filing immigration cases. And on this case, they’ve sought out as co-counsel Matt Galati, one of the top EB-5 experts in all of immigration law.
• Our team has kept careful track of changes in law, policy, and practice over the last few weeks, and have rapidly adjusted our litigation strategy to get the best outcomes for our plaintiffs.
• Our team is big. We have more than 30 lawyers in the IMMpact Litigation firms and are able to move quickly to be able to respond to the array of submission requirements and filing deadlines that come up in federal litigation.
• We’re able to deploy technology to manage the large number of plaintiffs in our cases. We are using cutting-edge, artificial intelligence-based expert system software to be able to rapidly collect information and assemble documents for clients. In fact, IMMpact has just been awarded the American Bar Association’s 2022 James Keane Award for the use of legal technology in advancing the practice of law.
• We keep our clients informed of what’s happening in our cases. We conduct a weekly hour-long live video streaming event on social media (Twitter, Facebook, LinkedIn and Youtube) that’s recorded and available for later viewing. We take plaintiff questions during those weekly events.
• In the EB-5 case, we’re also not suing in the same venue as the other case we’re aware of. We’ve made that decision based on our analysis of case precedent related to the issue of how much deference a federal agency is entitled to when it comes to its interpretation of a federal statute (since that’s at the heart of this lawsuit).

6. What is the deadline to sign up to be in the cases?

Due to the changes in law and strategy, we have extended the deadline to join the suit.  

Please complete the sign-up process by the end of the day, Friday, March 25.  

7. 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 on 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. 

8. May / should I still participate in this case if…

• …China is my country of chargeability, and my priority date is after November 22, 2015.
  • NO! → In the September 2021 Visa Bulletin, the Department of State indicated that Nov. 22, 2015, would be a cutoff date for China RC-based EB-5. We would not be able to bring the suit to demand visas be issued for backlogged individuals. While retrogression is always a risk, we are establishing Nov. 22, 2015 as a cutoff date for our China-chargeable plaintiffs to avoid lack of visas being a basis for mooting your delay claims. We may revisit this upon filing an amended complaint if dates advance significantly.
• …I have not yet had my biometrics taken for my I-485?
  • Yes! The whole point is to get your case moving.
• …I already have my EAD or combo card based on my pending I-485?
  • Yes! This suit is to get the green card case moving. It doesn’t matter whether or not you have your EAD.
• …I already have a separate mandamus lawsuit pending for my I-526, I-485 or DS-260?
  • NO!  If you are already suing the government regarding unreasonable delays on your I-526, I-485, or consular application, you may not also participate in this lawsuit. However, if your lawsuit is ONLY about other benefits like your Employment Authorization Document or Advance Parole, you may still join our suit.

9. Why are the cases not being handled as class actions?

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.

10. Where are the cases 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. That said, attorneys have previously had successes in California, and, accordingly, the suits are likely to be filed there.

11. How long will it take to get results?

We could start to see results soon after the case has been filed. Although the government has 60 days to respond to our initial complaint, we sometimes see government actions take notice and move plaintiffs’ cases before they answer the complaint.

We may also seek a preliminary injunction and/or temporary restraining order, asking the judge to order the government to continue processing these cases while the lawsuit is ongoing.  These orders are harder to win but may bring results quicker for our plaintiffs if we are successful.

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 go back to court. The government can be held in contempt by a judge if they fail to move these cases.

12. 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.

13. 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.

14. 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 for your I-526, DS-260, or I-485, you cannot join this lawsuit.

However, if you have a separate mandamus only for your EAD or another ancillary benefit, you may still join our suit.

15. 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 and plaintiffs from IMMpact’s prior EB-5 consular processing case, Fang v. Blinken). The fee is a one-time charge and we will not be billed 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.

16. How will communications work?

We will have weekly livestreams to update 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 the 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 to 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 live streams 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 we will provide.