By Anayat Durrani
The Galati Law Firm has filed yet another lawsuit against USCIS for their alleged violation of the Freedom of Information Act (“FOIA”) and more specifically their lack of response to a FOIA request made by the American Immigrant Investor Alliance. The firm is suing on behalf of AIIA to have the USCIS reveal EB-5 visa set aside demand.
“We alleged in our Complaint that USCIS provides monthly reporting to the Department of State regarding demand and chargeability so that DOS can determine the cut-off dates for the ensuing Visa Bulletin,” says Matthew T. Galati, The Galati Law Firm, LLC. “Without that data, neither agency would have any idea when visa quotas would be triggered and if/how cut off dates should be established. The data we are seeking is what keeps the immigration system going. We think there is no reason why this kind of data cannot be made public.”
The role of the EB-5 visa bulletin for investors
At a USCIS stakeholder engagement in April 2023, Galati says questions about I-526/I-526E receipt data by TEA category/country were left unaddressed with investors being directed to refer to the Visa Bulletin. The AIIA, an organization that advocates on behalf of EB-5 investors, says the Visa Bulletin is not an accurate reflection of the Immigrant Investor Program Office’s petition inventory. Having the actual inventory of pending petitions, they say, can provide investors with a better idea about the length of time it may take to obtain an EB-5 visa prior to investing.
The AIIA issued a FOIA request back in May seeking I-526/I-526E receipt data by TEA category/country, in order to monitor and avoid backlogs in the new visa set asides. However, AIIA has not received a response from USCIS.
“Our most recent FOIA filed with USCIS asks for the specific inventory of EB-5 petitions which have accumulated at the Immigrant Investor Program Office since the passage of the EB-5 Reform and Integrity Act, broken down by country and visa category,” says Isabella Getgey, Program Manager at AIIA.
Getgey says not having this information means investors from a high demand country such as China could face indefinite wait times, children aging out, redeployment and having to postpone financial and family planning for several years.
In the complaint filed, the USCIS’ behavior was likened to an airline offering unlimited standby tickets for a high-demand flight, but the airline not revealing the number of tickets that have already been sold. Without a waiting list to view, the complaint said, a passenger would buy a ticket and get a surprise at the gate by the group of passengers there with earlier priority for the limited seats.
“We are filing this lawsuit in the hopes we can avoid another catastrophic visa shortfall like we have seen over the past decade for EB-5 China unreserved,” says Galati.
EB-5 lawsuit aims to increase transparency for investors
The complaint states that a lack of transparency about incoming EB-5 demand has created massive backlogs in the legacy 5th Unreserved visa category. For example, the complaint notes that the July 2023 Visa Bulletin has a final action date of September 8, 2015 for China mainland-born applicants in the 5th Unreserved category, which means that Chinese EB-5 applicants who invested and filed I-526 before September 2015 are only now obtaining EB-5 visas, eight years on.
“The lengthy wait for visa availability originated from excess I-526 filings by Chinese leading up to September 2015. That excess could have been at least knowable and thus potentially avoidable back in 2015, if Defendant published country-specific I-526 receipt data,” per the complaint.
Without data as to the number of I-526/I-526E petitions that have been filed, EB-5 investors cannot estimate how many have already filed ahead of them. The complaint states that Form I-526/I-526E data is a must to allow for backlog/wait time predictions.
“We have new visa set-asides that breathe life back into the program, especially for China. But we are not being told the new demand. History could be repeating itself,” says Galati.
The EB-5 Reform and Integrity Act of 2022 established set-aside categories with a limited number of EB-5 visas for investors that invest in rural-area, high- unemployment-area, and infrastructure projects. The complaint states that if the USCIS provides information about incoming I-526/I-526E filings for the new set-aside categories, “then EB-5 users will be empowered to monitor incoming demand and choose to avert future backlogs in those categories.”
The suit is the third such suit on behalf of AIIA. A response is expected from USCIS’ by August 21.
“The goal here is to get present and future investors the data they need to set accurate expectations,” says Galati.
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