You are here[HOT] EB-5 lawsuit filed against USCIS involving EB-5 issues, including tenant-occupancy issue

[HOT] EB-5 lawsuit filed against USCIS involving EB-5 issues, including tenant-occupancy issue


By eb5attorney - Posted on 22 September 2012

Article: http://www.lexisnexis.com/community/immigration-law/blogs/outside/archiv...

Copy of the Complaint: http://www.courthousenews.com/2012/09/17/RomanEmpire.pdf

Updates on the case:

TRO Order: http://docs.justia.com/cases/federal/district-courts/california/cacdce/2...

Status Conference Order: http://www.slideshare.net/BigJoe5/carlsson-oct-11-2012-conference-minute...

Note that just because a TRO has been denied, it does not mean that the case will be ultimately denied at the trial. One thing USCIS has going for it is that USCIS is able to often label any change in the business plan as a "material" change especially in context of I-526 petition. The court may not have yet understood all the facts and their implications on the EB-5 requirements, but it does appear that this case is likely headed to a trial. However, the TRO does show the inner workings of the mind of this particular federal court judge. As they say, USCIS has won a battle but not the war yet. It seems likely that this case will be resolved at the trial.

It should be noted that USCIS revoked many approved I-526s pursuant to 8 U.S.C. Section 1155 which reads:

Sec. 1155. Revocation of approval of petitions; effective date

The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title. Such revocation shall be effective as of the date of approval of any such petition.

What this means is that unless the federal court judge is knowledgeable about USCIS practice and U.S. immigration law, the judge is going to have a very hard time deciding whether the subject I-526 immigrant petition was revoked based on "good and sufficient cause".

In conclusion, it's an entirely different arena when it comes to fighting denied or revoked I-526s versus fighting denied I-829 petitions.

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It seems to me that USCIS' alleged goal of building predictability is demolished when USCIS first approves many I-526s and then revokes them all.

I feel bad for the EB-5 investors, especially those families who received I-526 approvals and then received Notice of Intent to Deny and then revocation decisions. To those third-parties who say "Well, those EB-5 investors should have known better and avoided this kind of situation", we say to them "No way the EB-5 investors could have known that USCIS would suddenly bring up this issue, especially when USCIS had approved over 30 Eb-5 projects with the same investment structure." [By the way, we do not have any client in this project.] Also, it does the EB-5 Program a disservice when USCIS approves first eight (8) I-526s and then revokes all of them!

We have been saying for a long time that if USCIS decides to change its position on some EB-5 issues, the least it can -- and should -- do is give the EB-5 community an advance warning to avoid the issue and not penalize the EB-5 projects which already commenced relying upon previous approvals and those EB-5 investors who participated in these projects.

What do you think?