We Filed Suit in an Effort to get to the Bottom of USCIS’ Arbitrary Vietnamese EB-5 Adjudications
This week, on March 27, 2023, our firm filed a Freedom of Information Act (FOIA) lawsuit designed to force USCIS to produce key documentation relating to its adjudication of Vietnamese EB-5 petitions, specifically source of funds policies and statistics. We are proud to represent the American Immigrant Investor Alliance (AIIA) pro bono in our mutual efforts. The court docket can be found here and we are happy to share a copy of the complaint with this post.
By way of background, Vietnam (and many other countries where EB-5 is popular) has currency laws which restrict the conversion of local cash into U.S. dollars. Investors accordingly have utilized alternative methods to transfer funds to the U.S. as part of the EB-5 process, such as informal value exchanges, transferring to friends and family members to utilize quotas, and even cryptocurrency. For decades, USCIS has not questioned these methods as being detrimental to petition adjudication, provided that the methods themselves were disclosed and documented.
Indeed, this is how EB-5 found its success over the last 20 years and key stakeholders became comfortable utilizing the program. As stated by CanAm Enterprises’ Founder and CEO Tom Rosenfeld in a 2015 EB5Investors.com interview:
Because of its troubled history, there was limited investor interest in the EB-5 program[.] We understood the potential of the China market and wanted to introduce the EB-5 program in China. But, obviously, if China’s currency restriction policy was going to be a USCIS source of funds concern, we didn’t want to waste our time or money in that market. We openly vetted the issue with [the former head of USCIS’ EB5 Unit], who understood our concern, but indicated that he needed to raise the issue internally and get a determination from more senior agency officials. It took several months, but eventually [that official] advised that USCIS concluded that it was charged with determining if an applicant earned his or her capital legally and that it was not the agency’s job to enforce China’s restrictive currency policy. That green light is why we pursued the China market.
The rest is history.
Things however have changed. Stakeholders now report rampant RFEs and even denials on currency issues, despite there being no announcement in a policy shift by USCIS or any relevant change in regulatory text. As we alleged in the Complaint, EB-5 stakeholders “have no idea what USCIS’ current policy is, was, or will be.” Unfortunately, Vietnamese investors have borne the brunt of these arbitrary changes in agency policy.
Accordingly, last Fall, we assisted AIIA with a FOIA request seeking the following:
(1) records relating to USCIS’ process of adjudicating Forms I-526 and Forms I-829 with regard to the use of currency swaps or informal value transfer systems;
(2) records relating to the conversion of the Vietnamese Dong to the U.S. Dollar;
(3) records relating to the process of adjudicating Forms I-526 and Forms I-829 where an EB-5 investor utilizes one of the following companies or natural persons for a currency swap:
· Eastern & Allied Pty. Ltd., Dong Tai Trading Service Company Limited,
· Compass Global Holdings Pty. Ltd
· CamLy Duong; or
· VNT Trading and Investment Pty. Ltd., and
(4) records relating to the process of adjudicating Forms I-526 and Forms I-829 where an EB-5 investor utilizes cryptocurrency.
USCIS was required to respond to our FOIA but they ignored us. So, we sued and are demanding these records be produced. USCIS’ deadline for a response to our lawsuit is on or around May 1, 2023.
AIIA is one of the only EB-5 focused organizations whose sole focus is on immigrant investors. It strives to be an authoritative, investor-focused advocacy organization representing interests of all EB-5 investors regardless of their country of birth, adjudication status, or prior residency in the United States. When the EB-5 Regional Center program lapsed in June 2021 impacting the immigration process of over 80,000 individuals for several months, AIIA advocated for the grandfathering of all existing applicants and was successfully able to lobby Congress for the enactment of their grandfathering proposal in the EB-5 Reform and Integrity Act which passed in March 2022.
We are proud to support their efforts and have done so since the organization’s inception. We encourage all readers to donate to their laudable cause and for fellow immigration attorneys to volunteer their time and spread the word about the incredible results AIIA is accomplishing.