EB-5 Awaiting the Outcome of USCIS Lawsuit

  Author: Samuel B. Silverman

Recent litigation filed on behalf of 15 plaintiffs could shed light on USCIS practices concerning EB-5 applicants.

The EB-5 industry is closely following litigation cases against the United States Citizenship and Immigration Services (USCIS), as even small victories can have significant implications on transparency.

Writ of Mandamus/APA

A recent writ of mandamus/Administrative Procedure Act (APA) case filed in the Northern District of California in 2022 alleged that USCIS had disregarded its own regulations regarding visa availability and priority date processing. Similar cases have been filed in the past, but this particular litigation has the potential to provide valuable insights.

The APA is a federal law in the United States that establishes the procedures by which federal administrative agencies operate and make decisions. It sets forth guidelines for rulemaking, adjudication, and judicial review of agency actions. The APA requires agencies to follow specific procedures when making decisions that affect individuals or organizations.

A writ of mandamus is a court order that commands a government official or agency to perform a specific action that they are legally obligated to do. It is a remedy sought when an agency unreasonably delays or fails to take action required by law. By seeking a writ of mandamus, the petitioner asks the court to order the agency to fulfill its legal obligations and expedite the decision or action that has been unduly delayed.

Request for Summary Judgement

In this case, instead of filing a Motion to Dismiss, USCIS sought summary judgment after the court ordered the production of basic background information. In response, the plaintiffs requested additional discovery under Rule 56(d), citing the need for specific information that only the government possessed.

While other cases have previously requested similar documents, this is the first time that a court has granted the request after an oral argument. The documents to be provided will offer details on approvals and timing, including the number of unadjudicated Forms I-526 and the earliest priority dates for each country.

The information will also cover the number of Forms I-526 received and adjudicated per quarter since 2018, categorized by the country of birth of the principal applicant. Additionally, it will indicate any expedited adjudicated petitions. The court has limited the discovery to 2018, and USCIS must provide the information by July 14, 2023.

Rule of Reason

It is also anticipated that the forthcoming government information could demonstrate USCIS’s violation of its own case processing guidelines, known as the “Rule of Reason.”

The concept of the “Rule of Reason” generally refers to a standard used to evaluate the legality of certain actions or conduct. It is often applied to assess whether a particular action violates antitrust laws. Under the “Rule of Reason,” the court or administrative agency considers both the anti-competitive effects and the pro-competitive justifications of the action in question.

In the context of immigration, USCIS primarily administers and adjudicates applications and petitions related to immigration benefits, such as visas, green cards, and naturalization. USCIS decisions are generally based on the relevant immigration laws, regulations, and policies established by the U.S. Congress and the Department of Homeland Security (DHS).

It’s important to note that specific legal procedures and requirements may vary depending on the jurisdiction and the nature of the administrative process in question.

EB-5 Implications

Although the court did not grant all of the initially requested information, the provided details are expected to be highly beneficial for EB-5 investors. With this evidence, the plaintiff’s representation anticipates securing a court order for immediate adjudication of many more outstanding cases of the same nature.

Following the final decision of the court, if it should find that USCIS did, in fact, violate their “Rules of Reason”, it seems safe to assume that this case and all similar outstanding cases will be successful in securing an order for USCIS to adjudicate all petitions affected with immediate effect.

If you are interested in learning more about the EB-5 Immigrant Investor Program, or any current investment offerings, schedule a free consultation with EB5AN.