Law Offices of Jan Joseph Bejar A P.L.C.
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USCIS sued for unreasonably delaying EB-5 foreign investor visas

An investment firm supporting the alternative energy industry has sued the U.S. Citizenship and Immigration Services for delaying EB-5 visas for wealthy foreign investors. The California Energy Investment Center, LLC, claims that the USCIS has put unreasonable roadblocks in the way of EB-5 visas for 200 investors who have already provided $100 million in U.S. investments.

EB-5 visas are immigrant visas for international entrepreneurs who invest in commercial enterprises in the United States. To qualify, the entrepreneur must make an investment of between $500,000 and $1,000,000, depending on the area, in a way that will create or preserve 10 permanent, full-time jobs for U.S. workers. EB-5 visa holders who meet the qualifications are also eligible to adjust their status to that of lawful permanent resident (green card holder). The program was created to stimulate the U.S. economy and promote economic growth.

The California Energy Investment Center brokers wealthy international investors for the program. The 200 investors it represents in this case have contributed $500,000 each to the McCoy Solar energy plant in Riverside County. In order for them to receive their EB-5 visas, the USCIS must approve the solar plant as a recognized foreign investment.

According to the Investment Center, the USCIS has intentionally dragged out what is supposed to be a process lasting approximately 180 days. The agency initially issued a first notice of intent to deny approval after having reviewed the proposal for 16 months. The USCIS sent a list of objections in that first notice, which the Investment Center addressed. According to the lawsuit, the Investment Center provided "overwhelming evidence of EB-5 program compliance."

Seven months later, the USCIS sent a second notice with new objections. By law, according to the suit, USCIS approval must be granted if all the EB-5 program conditions are met.

Although federal law typically considers 180 days to be a reasonable processing time, the approval process for the solar plant has now taken over two years. In that time, the solar power plant has actually been completed and all of the jobs required by the EB-5 program -- and more -- have been created.

Admittedly, part of this is due to a somewhat reasonable backlog. A bill called the American Job Creation and Investment Promotion Reform Act was proposed in 2015 in an effort to delay approval of these foreign investments by a year. Although it never passed, its proposal prompted a rush of filings, according to the Courthouse News Service.

Now, according to its website, the USCIS is working on investment applications filed in November 2015. The Investment Center's application was filed in August 2015. The backlog apparently does not account for the second notice of intent to deny or its second list of objections.

The Investment Center points out that the USCIS has a non-discretionary legal duty to adjudicate the project in a timely fashion, and that it has failed to do so. Meanwhile, the Investment Center has provided a timely, thorough response to each of the agency's objections. Moreover, the delay is affecting the investors' visa applications, as these visas cannot be issued until the associated project is approved.

In its lawsuit, the Investment Center says the USCIS has "spun its wheels" to avoid approving the solar energy plant project for 26 months. It is asking the federal court to compel the USCIS to adjudicate the solar plant project within 30 days.

Since the beginning of the Trump administration, there have been a series of changes to U.S. immigration policy that have resulted in lawsuits. Immigrant investors who choose to participate in a popular program like this have a right to expect that their investment will result in a fair and timely adjudication.

If you are interested in an EB-5 visa or have run into difficulties obtaining one, we recommend contacting an attorney with experience handling employment and investor visas.

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