Foreign Investors File Lawsuit Against USCIS for Failure to Process EB-5 Visas Filed Under Lapsed Program

A number of foreign investors who have spent a minimum of $500,000 to participate in the EB-5 investor program have now filed a lawsuit against the United States Citizenship and Immigration Services (USCIS) due to failure to process their visas as well as the lapse in the Regional Center Program.

The EB-5 program allows foreign investors to apply for lawful permanent residence, often known as a green card, if they make a minimum investment of $500,000 and create 10 or more full-time jobs for American workers. The minimum investment of $500,000 applies if the investor chooses to make it in a project located in an area with depressed employment or a rural region; otherwise, it must be at least $1 million.

Traditionally the investor would set up their own business entity, and this is still acceptable under the EB-5 program. However, the more popular option has been to instead invest through a recognized EB-5 Regional Center, which would then, in turn, use the funds to invest in sponsored business entities. This program proved popular, with at least 90% of foreign investors choosing to go this route. Unfortunately, the program has since lapsed starting back on June 30th, 2021, leaving many investors stuck in limbo, uncertain what will become of their investment or immigration plans.

The EB-5 investor program has recently proven popular among H-1B workers in the U.S. as a means to gaining a green card far faster than they could have under employment-based green card programs, which often take decades.

The EB-5 program outlines a relatively straightforward means for individuals to receive a green card. Under the program, investors receive a conditional permanent residence status for themselves, their spouse, and any children younger than 21 years of age. After a two-year period, these investors may apply for removal of these conditions, and if approved, they and their family will receive a green card granting them the right to indefinitely live and work in the U.S.

The plaintiffs, in this case, participated in the EB-5 Regional Center Program prior to its lapse, have made the minimum investments, and USCIS has already approved their Form I-526 applications. However, USCIS has announced that due to the lapse in the program, they will no longer process any visas or green cards related to the program unless Congress takes action.

The plaintiffs argue that though the lapse in the program means that the agency need not grant preference to those in the program, it still must process their applications and set visas aside for them if they qualify.

USCIS has not responded to the case yet, but should the plaintiffs succeed in their case, it is possible that the agency may begin processing thousands of still-pending applications under the program.

Increase your hiring and verification efficiency today with I-9 Compliance automation.