By Anayat Durrani
For EB-5 industry stakeholders, big and small wins matter when it comes to any litigation filed against the U.S. Citizenship and Immigration Services (USCIS). There have been numerous cases filed against the agency on behalf of EB-5 investors. The latest could bring greater insight into how USCIS handles EB-5 applicants.
Last year, on behalf of 15 plaintiffs, Kuck Baxter Immigration Partners LLC filed a mandamus/APA delay litigation case in the Northern District of California that alleged that the USCIS failed to follow their own rules on visa availability and priority date processing. Other similar cases have also been filed.
Charles Kuck, founder and managing partner of the firm, says the USCIS did not file a Motion to Dismiss, but after the Court had ordered the production of basic background information, the USCIS filed for summary judgment.
“Rather than just filing our own Motion for Summary Judgment, we moved for additional discovery under Rule 56(d) which allows litigants to argue that they cannot file for summary judgment without certain types of information, information which we did not have, and which was only in the possession of the government,” says Kuck.
Successful litigation benefiting EB-5 investors
He says others have sought such documents but that this is the first time after oral argument that the request has been granted by a Court. The documents will provide more information on approvals by country and timing. Per the court document, this includes the following:
• A listing of the number of unadjudicated Forms I-526, by country of birth of the principal applicant, and the earliest priority date of each country’s oldest pending Form I-526.
• The number of Forms I-526 received by quarter since 2018, and the number of Forms I-526 adjudicated by quarter since 2018, broken down by assigned country of birth for the principal applicant.
It also includes an indication of any adjudicated petitions that were expedited. The Court stated it is limiting the discovery to the year 2018. USCIS needs to provide the information no later than July 14, 2023, according to the court papers.
What role EB-5 litigation can have for investors
While the Court did not provide all of the information initially requested in the lawsuit, the information that will now be provided can prove very beneficial for EB-5 investors going forward.
“We anticipate receiving information from the government which will show that they violated their own case processing “rule of reason” guidelines,” says Kuck. “And we anticipate being successful in securing an order for the USCIS to adjudicate all of our clients’ cases immediately upon a decision from the court.”
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