My I-526 petition was filed last February. I had not heard anything from USCIS until today, with my attorney not providing updates during that time. (My WAC number now indicates that my case is still under initial review). Meanwhile, I went to the EB-5 project twice, and am not satisfied with the progress that it has made so far. What can I do if I don”t feel like the EB-5 project I invested in is proceeding according to schedule?
It is understandable that things may appear frustrating in the processing of your application. However, do not confuse that with what appears to be lack of communications with all the parties involve(d) in the EB-5 processing. Seek advise and additional information from another EB-5 attorney(s). The EB-5 processing is worthwhile. With regards to the disaffection issue, it may not be a reason by itself to end your agreement in the EB-5 project in question; look at your agreement and consult an attorney to determine your next best action(s).
An experienced EB-5 immigration and securities attorney will be able to analyze the securities offering documents. There may be a basis to request return of your funds, such as the minimum raise not being reached or your reliance on misrepresentations.
As an investor, you are doing yourself great service by taking initiative. Having said that, you need to understand that I-526 processing times now stand at 13.8 months as of Jan. 20, 2015. Based upon this processing estimate, although your case has been pending for 12 months, it may be just normal. However, you made a good point in finding it troubling that the project construction seems to not have made much progress. You perhaps need to have your attorney examine the project''s business plan to see if it is significantly behind schedule. If it is, that may cause problems with the targeted job creation. To a certain extent, it may also indicate the project''s financial situation, but again this is just a guess. Trying to communicate with your attorney is the best way going forward.
The I-526 processing timeline, according to USCIS, is about 13 months. If you are truly dissatisfied with the project, carefully review your offering documents for any withdrawal procedures. Please note that depending on the project you may or may not be entitled to a repayment of some or all of your investment. Please also consider any children who may turn 21 or may have already turned 21, as they can no longer be included as derivative beneficiaries for a re-filing.
You should be able to contact the manager of the project to voice your concerns and ask that your issues be addressed, at the very least. Your rights as an investor should be laid out in the Operating Agreement or Partnership Agreement that you signed when you made your investment. You should speak to an attorney familiar with corporate law and show him your investment documents to get an analysis of your options.
You are likely a limited partner, so I would contact the other limited partners and put pressure on the project manager.
This is why due diligence of the regional center and project, including the track record of the regional center managing previous EB-5 cases and projects, before signing up is very important. As a limited partner, you have every right to contact the regional center and the developer to have them provide you with updates of what is happening with the project and an explanation of any delays. As to your lawyer providing you with your case status, again, you have a right to contact him/her to get any updates. However, it may be likely that they do not have any updates to report to you as USCIS is reporting that their normal processing time for I-526 is 13.8 months. If it has been more than 30 days beyond that normal processing time, you lawyer could email USCIS to inquire, which is what I do, but most of the times, the response that we get back is that the case is assigned to an adjudicating officer who is reviewing the case with a request that we be patient.
If your interest is solely to speed the project along, you will want to speak with a representative of the developer and express your concerns, but first make a careful review of the investment documents to see if there are any projections or timetables in the documents you received. In other words, is your concern based upon failure to meet representations, or only your own personal belief on the progress that has been made? This will help you determine what the nature of this conversation may be. You may also want to consider whether you wish to make this contact yourself, or to communicate through the immigration consultant who introduced you to this project, or some other intermediary in the transaction. If a regional center is involved, and they are not a direct affiliate of the developer but an independent party, you may need to make the communication to them first and they may want to address this issue for you. If you are looking to obtain your investment back, you should speak with legal counsel to explore that possibility.
Not much unless you have some written agreement with the project. If there was an agreement in writing providing you with some extra return on your investment due to delays etc. then you may have a cause of action.
You should turn to your EB-5 plan documents to see if any remedy exists. Generally though, the project documents would not give the investor the right to get money back if they were generally dissatisfied. I-526 applications often take around a year to adjudicate, so the timing is not unusual.
You have the option of withdrawing your petition before it is approved, and then investing in another project. Be sure to have your attorney first review your current project''s documentation and explain to you the refund policy if you withdraw.
You will need to speak to a securities litigator to ascertain what options you may have, as well as submitting sufficient information to regulators. Please note that submitting documents and information to regulators is not a substitute for pursuing your own litigation.
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