To Remedy Long Processing Times, EB-5 Investors are Turning to Federal Court Litigation
Long EB-5 processing times have been the norm. Unlike other visa petition types, there are no 15-day guarantees of premium processing. A year-plus wait for a Green Card, for even non-backlogged countries, has been the norm for at least the last half of the past decade. Further, lengthy Condition Removal (I-829) processing times – frustrating hopes of a quick naturalization and violating a statutory mandate that they be handled within 90 days – are also nothing new. So it has been for the U.S. residency-by-investment program in its modern age.
Then, 2019 happened. And 2019 was very different. Because hardly any adjudications happened in 2019. That – we argue – was illegal. USCIS broke the law. Consequently, investors are fighting back in the Federal Courts in record numbers.
A quick recent history lesson: 2019 began with an unprecedently-long government shutdown over the Administration’s wishes for taxpayer funding for a Border Wall. Once government reopened, and the Regional Center Program authorization was restored, the Immigrant Investor Program Office (IPO) never quite resumed its full operational capacity compared to months and years before.
The IPO then shocked all its stakeholders in the Spring when it essentially doubled its I-526 processing times overnight – going from 20.5 to 27 months in April to 29 to 45.5 months in May. By the time Summer and Fall EB-5 industry conferences came about, most of the conversation among EB-5 attorneys was centered around the same questions: “Have you gotten any approvals lately? No? Well… any this year?”
The statistics do not lie. One can pinpoint a major curtailing of productivity following the appointment of current IPO head Sarah Kendall in late 2018. USCIS’ own fiscal-year I-526 statistics corroborate a major drop-off in adjudications. In Fiscal Year 2019 (Oct 2018 – Sept 2019), the agency adjudicated a mere 4,673 Forms I-526, compared to 15,122 in FY2018. The I-829 statistics are equally distressing, with only 1,733 adjudications in FY2019 versus 2,714 the year prior. Remember too that the I-829 adjudications are not dependent on ongoing Regional Center Program Authorization. One would have expected I-829 processing times to accelerate during the government shutdown, yet the data shows the opposite. What, exactly, has the IPO been doing?
The real salt in the wound to EB-5 stakeholders came from comments made during a September 2019 listening session:
During fiscal year 2019, the sunset of the Regional Center program during the last part of December and through most of January, cost IPO adjudicative time even after the program was reauthorized. IPO was forced to pivot to stand alone petitions and I-829 work and halted production on I-924s and I-526s associated with a Regional Center.
Additionally, IPO has taken significant steps in building more robust quality assurance and control programs to better ensure consistent adjudication practices, including conducting an extensive training session for all I-526 adjudicators and economists.
These reasons, along with temporary assignment of some staff to other agency priorities, have resulted in longer processing times, which you may have noticed with the May update to our online processing times.
In other words, despite EB-5 product lines carrying the heftiest filing fees against all other visa types, the I-526 more than doubling its fee in 2016, and extremely high I-924 and I-924A filing fees borne by the Regional Centers, investors now can expect longer than ever processing times while ongoing pending volume remains at historic lows. The whole point of an Exemplar I-526 was to make investor filings more efficient. Meanwhile, the agency has transferred IPO adjudicators to non-IPO functions, all while collecting more fees than ever.
What can investors do? Emails to the IPO go un-replied if submitted within processing times. Congressional assistance has inherent limitations. USCIS Ombudsman reports can, and have for years, been ignored.
Thus, we are fighting back. Because Federal court actions can ensure results.
By law, agencies cannot indefinitely delay adjudications – instead, processing must be done within a reasonable time and in good faith. What explains the IPO’s possible delay? It cannot be due to a lack of agency resources. Congressional appropriations are not part of the equation. USCIS sets the fees it charges to pay for personnel to process petitions in a timely fashion. It more than doubled those fees in 2016 – when it was much more efficient. Moreover, the current historic delay durations accelerated after additional employees were hired and fees were increased.
To date, we have represented over 50 investor-plaintiffs in federal court actions from coast to coast. So far, the majority of our cases ripe for intervention have resulted in adjudications.
Certainly, previous experience is no indication of future results. Every case is different and filing a federal complaint is by no means “premium processing” Nevertheless, these plaintiffs have, for the first time, been able to correspond with a singular person responsible for the ultimate handling of their cases. Many have now secured approvals within months of filing federal court actions whereby otherwise the timeframe of adjudications would be greatly uncertain.
2019 happened. USCIS stopped regularly adjudicating EB-5 filings. So, it’s time to fight back.