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New Lawsuit Challenges EB-5 Visa Methodology

The wait for a green card for immigrants in some family and employment categories can take decades, or even extend beyond a normal human life span. In July 2018, however, a lawsuit was filed in the U.S. District Court for the D.C. Circuit that has the potential to significantly impact the wait times for at least one immigration category. The lawsuit challenges the federal government’s methodology in counting spouses and children when determining the annual limit for the EB-5 category, which is employment-based fifth preference.

New Lawsuit Challenges EB-5 Visa Methodology

The plaintiffs in the lawsuit claim that because the U.S. government counts one visa for every spouse and child of the EB-5 investor, as well as one visa for the investor. As a result, an investor with a family of four takes up four visa spots instead of one visa spot, which reduces the quota much more quickly than if family members were not counted. This has created substantial, if not impossible wait times for investors; for instance, a Chinese investor who invests $1 million in a U.S. business that creates 10 jobs for U.S. workers now has a 10 to 15-year wait for a visa, which can mean that his or her children turn 21 and then no longer become eligible to immigrate under this category.

These unreasonably lengthy waits thus have jeopardized the point of the entire EB-5 program. Overall, the U.S. government effectively is granting about 3,500 investor visas, as opposed to 100,000 investor visas, as the EB-5 program had intended. The remainder of the visas end up going to family members each year. In the lawsuit, the plaintiffs claim that the current policy directly contradicts the legislative history of the authorizing statute and violates the notice and comment provisions of the Administrative Procedure Act.

Peek & Toland dedicates a large part of its practice to helping both individuals and businesses resolve their immigration-related issues. Immigration law is a complex, ever-changing area of the law that necessitates legal advice from experienced immigration lawyers who keep up-to-date with all relevant changes in law and policy. We will work with you to achieve the most positive outcome possible in your situation. Call our office today and set up a consultation with our skilled immigration attorneys today.

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