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To Remedy Long Processing Times, EB-5 Investors are Turning to Federal Court Litigation
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/393429-article-to-remedy-long-processing-times-eb-5-investors-are-turning-to-federal-court-litigation-by-matt-galati#bio”>
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Matt Galati
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<p>
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
<a
href=”https://www.eb5investors.com/blog/common-issues-i829-processing”
target=”_blank”
>
also nothing new
</a>
. So it has been for the U.S. residency-by-investment program in its modern
age.
</p>
<p>
Then, 2019 happened. And 2019 was very different. Because hardly any
adjudications happened in 2019. <strong>That – we argue – was illegal. USCIS broke the law.</strong>
Consequently, investors are fighting back in the Federal Courts in record
numbers.
</p>
<p>
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.
</p>
<p>
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 <strong>29 to 45.5 months</strong> 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?”
</p>
<p>
The statistics do not lie. One can
<a
href=”https://ebfive.files.wordpress.com/2020/03/trackrecord.jpg”
target=”_blank”
>
pinpoint a major curtailing of productivity
</a>
following the appointment of current IPO head Sarah Kendall in late 2018.
USCIS’ own
<a
href=”https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Employment-based/I526_performancedata_fy2019_qtr4.pdf”
target=”_blank”
>
fiscal-year I-526 statistics
</a>
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
<a
href=”https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Employment-based/I829_performancedata_fy2019_qtr4.pdf”
target=”_blank”
>
I-829 statistics
</a>
are equally distressing, with only 1,733 adjudications in FY2019 versus
2,714 the year prior. Remember too that the I-829 adjudications
<a
href=”https://www.uscis.gov/archive/archive-news/sunset-date-affect-regional-center-proposals-under-immigrant-investor-pilot-program”
target=”_blank”
>
are not dependent
</a>
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?
</p>
<p>
The real salt in the wound to EB-5 stakeholders came from comments made
<a
href=”https://www.uscis.gov/sites/default/files/files/nativedocuments/EB-5_Modernization_Stakeholder_Call.pdf”
target=”_blank”
>
during a September 2019 listening session
</a>
:
</p>
<p>
<em>
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.
</em>
</p>
<p>
<em>
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.
</em>
</p>
<p>
<em>These reasons, </em>
<strong>
<em>
<u>
along with temporary assignment of some staff to other agency
priorities
</u>
</em>
</strong>
<em>
, have resulted in longer processing times, which you may have noticed
with the May update to our online processing times
</em>
.
</p>
<p>
In other words, despite EB-5 product lines carrying the heftiest filing
fees against all other visa types, the
<a href=”https://www.uscis.gov/forms/our-fees” target=”_blank”>
I-526 more than doubling its fee in 2016
</a>
, 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.
</p>
<p>
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.
</p>
<h2>
<strong>
Thus, we are fighting back. Because Federal court actions can ensure
results.
</strong>
</h2>
<p>
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.
</p>
<p>
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.
</p>
<p>
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 <em>within months</em> of filing federal court actions whereby otherwise
the timeframe of adjudications would be greatly uncertain.
</p>
<hr/><h4>
<a name=”bio”></a>
About The Author<br/>
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<p>
<b>Matthew T. Galati </b> is the Principal of <a href=”https://www.galati.law/” target=”_blank”>The Galati Law Firm, LLC</a>. A seasoned litigator and EB-5 attorney, he has represented hundreds of plaintiff-clients in federal and state court litigation over the course of his career. To contact Matt, please email
<a href=”mailto:matt@galati.law” target=”_blank”>matt@galati.law</a>
.
</p>
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