Chinese investors vs U.S. Department of State & United States of America

Filing Date:July 25, 2018

Case:Chinese investors vs. Michael R.Pompeo, Edward J.Ramotowski, US department of state, USA

Jurisdiction:Federal District Court for the District of Columbia

Status:Pending

Civil / Criminal:Civil

Denial of petition

The complaint alleges the following :

PARTIES

1. Plaintiff Feng WANG (“Mr. Feng Wang”) is a citizen of the People’s Republic of China (“China”). Mr. Feng Wang invested $500,000 in an EB-5 regional center fund and filed a successful I-526 petition on October 10, 2014. The Visa Bulletin showed no backlog for EB-5 applicants from China in 2014. Mr. Feng Wang decided to participate in the EB-5 program in order to provide his daughter, Plaintiff Guanyu WANG, born August 4, 1996, also a citizen of China, with a path to U.S. permanent residency. Mr. Feng Wang resigned from his job and sold an apartment to make his EB-5 investment. His daughter is now a senior in college in China and is nearing her “age-out” date, after which she will be ineligible to immigrate to the United States as a derivative. She is applying to U.S. graduate programs, but will be ineligible for tuition reductions and employment opportunities that are available with permanent residency.


2.  Plaintiff Yu QIAN (“Ms. Qian”) is a citizen of China. Her daughter, Plaintiff Mengyu MA, was born on January 2, 1997. Mengyu Ma is also a citizen of China and a resident of Seattle, Washington, and will “age out,” becoming ineligible to immigrate to the U.S. as a derivative, in November 2018. Ms. Qian invested $500,000 in an EB-5 regional center fund and filed a successful I-526 petition on July 1, 2016. The Visa Bulletin showed a backlog for EB-5 applicants from China in 2016, but Ms. Qian did not know that the visa backlog was so extensive. Ms. Qian decided to participate in the EB-5 program in large part to provide Mengyu Ma with a path to U.S. permanent residency. Mengyu Ma is currently enrolled as a student at the University of Washington in Seattle.


3. Plaintiff Hui SUN (“Ms. Sun”) is a citizen of China. Her spouse is Plaintiff Linsheng XU. Ms. Sun invested $500,000 in an EB-5 regional center fund and filed a successful I-526 petition on May 27, 2015. Ms. Sun decided to participate in the EB-5 program to provide her children, all of whom are also citizens of China, with a path to U.S. permanent residency. Her eldest daughter, Plaintiff Yaotian XU, born August 17, 1998, will “age out,” becoming ineligible for an EB-5 derivative visa, in September 2019. Her son, Plaintiff L.T.X., born July 27, 2006, and her younger daughter, Plaintiff B.T.X., born September 27, 2010, may “age out” before visa numbers become available as well. The backlog has thrust Yaotian Xu into educational and career limbo. She is currently studying at Berkeley City College in Berkeley,California on a student visa and is a resident of Oakland, California. Ms. Sun’s son is enrolled in an international school in China. Ms. Sun herself has put her career on hold to learn English and prepare for a move to the United States.


4. Plaintiff Fubao WANG (“Mr. Fubao Wang”) is a citizen of China. Mr. Fubao Wang invested $500,000 in an EB-5 regional center fund and filed a successful I-526 petition on May 20, 2015. The Visa Bulletin showed no backlog for EB-5 applicants from China in March 2015. Mr. Fubao Wang decided to participate in the EB-5 program in large part to provide his daughter, Plaintiff Naixin WANG, born September 24, 1998, also a citizen of China, who has been studying in the U.S. as a high school and college student since 2013, with a path to U.S. permanent residency. But Naixin Wang will “age out” in February 2021, becoming ineligible to immigrate to the United States as a derivative, while Mr. Fubao Wang waits for visa numbers to become available, due to the backlog. Naixin Wang is currently enrolled at Stanford University.


5. Plaintiff Hongmei XIAO (“Ms. Xiao”) is a citizen of China. Her spouse is Plaintiff Liang LI. Ms. Xiao invested $500,000 in an EB-5 regional center fund and filed a successful I-526 petition on January 28, 2015. The Visa Bulletin showed no backlog for EB-5 applicants from China in January 2015. Ms. Hongmei Xiao decided to participate in the EB-5 program in large part to provide her son, Plaintiff Jiajun LI, born September 30, 1996, also a citizen of China and a student at the University of Illinois, Urbana-Champaign, with a path to U.S. permanent residency. But Jiajun Li will “age out,” becoming ineligible for an EB-5 derivative visa, in November 2018, while Ms. Xiao waits for visa numbers to become available, due to the backlog.


6. Plaintiff Jianhong YANG (“Ms. Yang”) is a citizen of China. Her spouse is Plaintiff Yong LIU. Ms. Yang invested $500,000 in an EB-5 regional center fund and filed a successful I-526 petition on September 29, 2014. The Visa Bulletin showed no backlog for EB-5 applicants from China in 2014. Ms. Yang decided to participate in the EB-5 program in order to provide her son, Plaintiff Zijing LIU, born December 8, 1995, also a citizen of China, with a path to U.S. permanent residency. Zijing Liu is enrolled as a graduate student at the University of Southern California and remains a resident of Los Angeles. But he now risks being separated from the rest of the Yang family because he will “age out,” becoming ineligible to immigrate to the United States as a derivative, in October 2018, while Ms. Yang waits for visa numbers to become available due to the backlog.


7. Plaintiff Guonong CHEN (“Ms. Guonong Chen”) is a citizen of China. Ms. Guonong Chen invested $500,000 in an EB-5 regional fund and filed a successful I-526 petition on June 16, 2014. In December 2017, she and her husband moved to the United States as conditional permanent residents. They reside in Chino, California. Ms. Guonong Chen decided to participate in the EB-5 program in order to provide her son, Plaintiff Haipeng LU, born June 16, 1995, also a citizen of China, with a path to U.S. permanent residency. Haipeng Lu has been studying in the U.S. as a high school and college student since 2013 and is currently a student at the University of California, Riverside, and resides with his parents in Chino. When Ms. Guonong Chen submitted her I-526 petition in 2014, and when it was approved in 2015, her son was eligible to follow to join Ms. Guonong Chen as her child. The Visa Bulletin showed no backlog for EB-5 applicants from China in 2014. But absent relief from this Court, Haipeng Lu is ineligible to immigrate to the United States as a derivative because under the existing cut-off dates, he “aged-out” while Ms. Guonong Chen and her husband were still waiting for visa numbers to become available.


8. Plaintiff Tong CHEN (“Mr. Tong Chen”) is a citizen of China. His spouse is Plaintiff Ling LI. Mr. Tong Chen invested $500,000 in an EB-5 regional center fund and filed a successful I-526 petition on July 17, 2014. In April 2018, Mr. Tong Chen moved to the United States as a conditional permanent resident. He resides in Yorba Linda, California. Mr. Tong Chen decided to participate in the EB-5 program in large part to provide his son, Plaintiff Yiwei CHEN, born December 27, 1994, also a citizen of China, with a path to U.S. permanent residency. When Mr. Tong Chen submitted his I-526 petition Yiwei Chen was eligible to immigrate to the United States as Mr. Tong Chen’s child. The Visa Bulletin showed no backlog for EB-5 applicants from China in 2014. But Yiwei Chen, currently a student enrolled at the University of Texas at Arlington and resident of Arlington, Texas, now risks being separated from the rest of the Wang family because under the Department’s existing cut-off dates, he has “aged out,” becoming ineligible to immigrate to the United States as a derivative, while Mr.Tong Chen was still waiting for visa numbers to become available.


9. Plaintiff Yongjun LI (“Mr. Li”) is a citizen of China. His spouse is Plaintiff Qing LIU. He invested $500,000 in an EB-5 regional center fund and filed a successful I-526 petition on July 10, 2014. Mr. Li and his wife moved to the U.S. as conditional permanent residents in March 2018. They reside in Chino Hills, California. Mr. Li decided to participate in the EB-5 program in order to provide his daughter, Plaintiff Xin LI, born April 24, 1995, also a citizen of China, with a path to U.S. permanent residency. When Mr. Li submitted his I-526 petition, Xing Li was eligible to follow to join Mr. Li as his child. The Visa Bulletin showed no backlog for EB-5 applicants from China in 2014. But Xin Li, who is currently a postgraduate student at Cornell University, now risks being separated from the rest of her family because under the Department’s existing cut-off dates, she “aged out,” becoming ineligible to immigrate to the United States as a derivative, while Mr. Li was waiting for visa numbers to become available.


10. Plaintiff Jingpo WANG (“Mr. Jingpo Wang”) is a citizen of China. His spouse is Plaintiff Guishuang LI. Mr. Jingpo Wang invested $500,000 in an EB-5 regional center fund and submitted a successful I-526 petition on March 13, 2014. Mr. Jingpo Wang and his wife moved to the U.S. as conditional permanent residents and reside in New Jersey. Mr. Jingpo Wang decided to participate in the EB-5 program in order to provide his son, Plaintiff Haixin WANG, born 28 December 1993, also a citizen of China, who has been a student in the U.S. since 2011 and is currently enrolled at Pennsylvania State University and is a resident of University Park, Pennsylvania, with a path to U.S. permanent residency. When Mr. Jingpo Wang submitted his I-526 petition, Haixin Wang was eligible to immigrate to the United States as Mr. Jingpo Wang’s child. The Visa Bulletin showed no backlog for EB-5 applicants from China in 2014. But Mr. Jingpo Wang’s son now risks being separated from the rest of the Wang family because under the Department’s existing cut-off dates, he has “aged out,” becoming ineligible to immigrate to the United States as a derivative, while Mr. Jingpo Wang waited for visa numbers to become available.


11. Plaintiff Jin ZHU (“Ms. Zhu”) is a citizen of China. Her spouse is Plaintiff Deping YE. Ms. Zhu invested $500,000 in an EB-5 regional center fund and filed a successful I-526 petition on October 10, 2014. When she submitted her I-526 petition in 2014, and when her I-526 petition was approved in 2016, Ms. Zhu’s son, Plaintiff Tianze YE, born March 22, 1996, also a citizen of China, was eligible to immigrate to the United States as Ms. Zhu’s child absent the backlog then in effect. The Visa Bulletin showed no backlog for EB-5 applicants from China in 2014. But Ms. Zhu’s son, a graduate student at Columbia University and resident of New York City, now risks being separated from the rest of the Zhu family because under the cut-off dates the Department has established, he “aged out,” becoming ineligible to immigrate to the United States as a derivative, while Ms. Zhu was waiting for a visa number to become available.


12. Plaintiff Ning DENG (“Mr. Deng”) is a citizen of China. His spouse is Plaintiff Kailin DENG. Mr. Deng invested $500,000 in an EB-5 regional center fund and filed a successful I-526 petition on December 29, 2014. The Visa Bulletin showed no backlog for EB-5 applicants from China in 2014. Mr. Deng decided to participate in the EB-5 program in large part to provide his daughter, Plaintiff K.L.D., who was born on September 8, 2002 and is also a citizen of China, with a path to U.S. permanent residency. Mr. Deng has expended considerable resources educating K.L.D. at an international school in China in anticipation of her eventually studying in the U.S. But K.L.D. now faces an extremely uncertain educational and professional future. She is off the mainstream Chinese track for educational and professional advancement, and she will “age out” in October 2023, becoming ineligible for an EB-5 derivative visa, while Mr. Deng waits for visa numbers to become available.


13. Plaintiff Fang ZHAO (“Mr. Zhao”) is a citizen of China. Mr. Zhao invested $500,000 in a regional center fund and filed a successful I-526 petition on September 14, 2015. Mr. Zhao is currently a resident of New York City, having graduated from the State University of New York at Albany this spring, and is preparing to enroll as a graduate student at California Northstate University in Elk Grove, California, this fall. He has been a student in the U.S. since 2010. He is acculturated to the U.S. and has lost many personal connections to his home country. The long wait time for visa numbers has harmed his career, as it is much more difficult for Mr.Zhao to find meaningful and remunerative employment on a student visa.


14. Plaintiff American Lending Center LLC (“ALC”) is a regional center designated by United States Citizenship and Immigration Services (“USCIS”), and is organized in the State of California and headquartered in Long Beach, California. The visa backlog created by Defendants’ Counting Policy has caused ALC severe economic losses and its continued enforcement threatens the very existence of the company’s business. ALC sues on its own behalf and on behalf of its potential EB-5 investor clients.


15. Defendant Michael R. POMPEO is the Secretary of State of the United States. He is sued in his official capacity. As Secretary of State, Defendant Pompeo has ultimate responsibility for the Department of State’s (“DOS”) allocation of immigrant visa numbers consistent with the requirements of federal immigration law.


16. Defendant Edward J. RAMOTOWSKI is the Deputy Assistant Secretary of State for Visa Services. He is sued in his official capacity. As Deputy Assistant Secretary, Defendant Ramotowski heads DOS’s Visa Office and is responsible for administering and formulating regulations, policies, and procedures relating to visa issuance and refusal. As head of the Visa Office, Defendant Ramotowski is responsible for administering immigrant visa number allocation through the Immigrant Visa Allocation Management System.


17. Defendant U.S. Department of State (“DOS”) is an executive agency of the United States. DOS is the federal agency responsible for overseeing, monitoring, and allocating immigrant visa numbers consistent with the numerical limitations imposed by Congress in the Immigration and Nationality Act.


18. Defendant United States of America is a sovereign sued under the Administrative Procedure Act (“APA”), under which the United States has waived its sovereign immunity in suits brought by parties who have suffered a legal wrong because of, or who have been adversely affected or aggrieved by, a federal agency action.

Impact of Defendants’ Counting Policy and Practice on EB-5 Investors and Derivatives

1. Defendants’ Counting Policy dictates that immigrant visas issued to EB-5 investors and each of their derivatives are individually counted against the annual EB-5 quota of approximately 10,000 visa numbers. Thus, the total number of immigrants admitted annually through the EB-5 program does not reflect the actual number of investors.


2. In FY 2015, the large majority of EB-5 visas went to Chinese nationals (84%), followed by Vietnamese nationals (3%) and Taiwanese nationals (1%).


3. Since May 2015, visa numbers have been backlogged for China in the EB-5 category. Consequently, both EB-5 investors with approved I-526 petitions and their derivatives may be unable to obtain conditional permanent residence because no visa number is available. As of July 2018, DOS was processing visas for Chinese EB-5 applicants whose I-526 petitions had been approved on August 1, 2014 or before. However, current estimates would require citizens of China who have already made a job-creating investment under the EB-5 Program to
   
   wait 16 years because of the backlogs that result from Defendants’ Counting Policy.


4. As a result of these backlogs, investors who have given up their livelihoods in China, left their jobs, enrolled their children in English language schools that have taken them off the standard educational track for advancement in Chinese society, and sold their assets in anticipation of moving to the United States now find themselves languishing in an artificially congested visa queue.


5. The Child Status Protection Act (CSPA), Pub. L. No. 107-28 (Aug. 6, 2002), was enacted to provide relief to children who “age-out,” or lose their preferential immigration status as a “child,” due to visa backlogs or USCIS processing delays. Under the CSPA, the time period during which the I-526 petition is pending is deducted from the child’s age. Once USCIS approves the I-526 petition, however, the clock begins to run again until a visa number becomes available to the child’s EB-5 investor parent.


6. As a result, many children of EB-5 investors who were under 21 and therefore eligible to immigrate to the United States with their EB-5 parent, are now shut out of the immigration system. Because the Counting Policy has resulted in a backlog at the time their parent investor’s I-526 petition is approved, their age under the CSPA “unfreezes” and they have or will “age-out” while their parent waits in the visa line for a number to become available.


7. Thus, a 20-year-old who is the son or daughter of an investor will not age-out while the petition is pending. However, once the petition is approved, if a visa number does not become available by the time the child turns 21, she will become ineligible to immigrate to the United States with her parent. Given the over 10 year wait in the current backlog, a child from China, for example, whose parent files an I-526 investor application today will age-out if he or she is 11 years old if the agency promptly adjudicates her petition. Even if the agency took two years to adjudicate the I-526 and those two years are deducted from the child’s age under the CSPA, a 13-year-old child today would age out by the time a visa was available.


8. Defendants’ unlawful policy and practice results in irreparable harms for investors and their children. Above all, the new lives that EB-5 investors seek in the U.S. are tragically incomplete if their families are unable to join them, but the current backlog has already harmed many investors by causing their children to age-out. And the backlog virtually guarantees that many children of investors who have not yet received visa numbers will age-out.


9. In addition to the fundamental harm to the integrity of investors’ families, children aging-out due to Defendants’ unlawful counting policy irreparably harms family
   
   finances and career prospects. Many investors spend hundreds of thousands of dollars on educating their children in the United States with the expectation that their children will become permanent residents under EB-5 and be able to stay and work in the U.S. after they graduate.When children age-out, these investments in their children’s futures are not just wasted; the children are worse off than if they had never been spent in the first place. Children in U.S. schools become acculturated to the U.S. and removed from educational and career networks in their home countries. They are at a distinct disadvantage compared to their peers who never left. And yet if they age-out, they must return to countries they often barely recognize while their parents move childless to the U.S.


10. The backlog also irreparably harms the career prospects of the investors themselves. Given the significant financial resources required to invest under EB-5, many EB-5 investors are middle-aged or older; they have enjoyed investment and career success in their home countries and are seeking to open a new career chapter in the United States. But the backlog means that a middle-aged investor today will be near or at retirement age by the time his or her EB-5 visa number becomes available. Such investors are deprived of the time necessary to build new professional networks in the U.S., and, in many cases, improve their English skills. Finding new employment will be exceedingly difficult for investors newly-arrived in the U.S. in their seventies lacking English skills. Meanwhile, many investors, in anticipation of their move and in order to handle the logistics of choosing an appropriate EB-5 investment, have already left jobs in their home countries. That lost income cannot be recovered even if, in the face of the backlog, investors manage to find new jobs while they wait.


11. Defendants’ Counting Policy also irreparably harms the integrity of EB-5 investments. Investors make their investments up-front but then, because of the backlog, are unable to go to the U.S. to monitor their investments for a decade or more. They are unable to visit project sites, meet with investment managers, or otherwise actively oversee the companies in which they have invested considerable capital. What’s more, for investors to obtain lawful permanent residence and thus realize the promise of the EB-5 program, their capital must remain invested until the end of the two-year conditional residency period. 8 CFR §§216.6(c-d). The backlog, with that requirement in mind, means investors are unable to reclaim any part of their principal for a decade or more. This seriously harms their finances, preventing them from participating in any new investment opportunities that would have been available to them if wait times were reduced.


12. If EB-5 derivatives were not individually counted toward the annual worldwide quota, many more EB-5 visa numbers would be available and wait times would be significantly reduced, with the result that fewer children of EB-5 investors would age-out before their immigrant visas were processed, and irreparable harm to families, careers, finances, and EB-5 investments would be prevented.

Irreparable Harm to Plaintiffs

1. Defendants’ counting policy has caused grave hardships to the Individual Plaintiffs and their families, as well as the Organizational Plaintiff.


2. Defendants’ policy and practice has caused grave hardships for Plaintiff Feng Wang (“Mr. Feng Wang”) and his family. In 2014, Mr. Feng Wang expended considerable money, time, and effort to contribute $500,000 to an EB-5 regional center fund, which was invested in a real-estate project in Houston. At the time, the Visa Bulletin was current for Chinese investors, and his daughter, Plaintiff Guanyu Wang, was a senior in high school. In order to participate in the EB-5 program, Mr. Feng Wang made sacrifices. To research investment projects, he left his job as marketing director for Volkswagen’s joint venture in China after twenty years with the company. To afford his EB-5 investment, he mortgaged, and later sold, his apartment. He also opted to forego similar immigration investment opportunities in Canada and Greece.


3. Six months after making his investment, Mr. Feng Wang learned of the new backlog for Chinese EB-5 applicants. As time dragged on, his plans to move his family to the United States unraveled. Unable to remain unemployed while waiting for his priority date to become current, Mr. Feng Wang moved across China to start a new job. Guanyu Wang is now a junior in college in China and is nearing her age-out date. She is applying to U.S. graduate programs, but will be ineligible for tuition reductions and employment opportunities that would have been available with lawful permanent residency. And for Mr. Feng Wang, moving to the U.S. later in his career than he had anticipated only for his daughter to be forced to return to China is a nightmare scenario.


4. Defendants’ unlawful counting practice has derailed Mr. Feng Wang’s career, endangered his finances, harmed his daughter’s educational and career prospects, and threatens to split his family.


5. 
   

   Defendants’ policy and practice has caused grave hardships for Plaintiff Yu Qian (“Ms. Qian”) and her family. Ms. Qian expended considerable money, time, and effort to place $500,000 in an EB-5 regional center fund, which was invested in a stadium project for the Sacramento Kings basketball team, in October 2012. She filed her I-526 petition on July 1, 2016. Ms. Qian was aware that there was a visa backlog for Chinese citizens under the EB-5 program, but she did not know that the visa backlog was so extensive.

   
   


6. 
   

   Ms. Qian’s daughter, Plaintiff Mengyu Ma, is currently enrolled as a student at the University of Washington in Seattle. Ms. Qian’s daughter will age out, becoming ineligible for an EB-5 derivative visa, in November 2018.

   
   


7. 
   

   Defendants’ unlawful counting policy has jeopardized Ms. Qian’s finances, career, and her daughter’s education and well-being. Ms. Qian decided to participate in the EB-5 program in large part to provide her daughter with U.S. permanent residency. Defendants’ unlawful policy and practice will prevent Ms. Qian from realizing that goal.

   
   


8. 
   

   Defendants’ policy and practice has caused grave hardships for Plaintiff Hui Sun (“Ms. Sun”) and her family. Ms. Sun expended considerable money, time, and effort to place $500,000 in an EB-5 regional center investment. She filed her first I-526 petition on December 28, 2012. The petition was denied on November 13, 2013 due to the job creation methodology utilized by the project the EB-5 regional center fund invested in. Ms. Sun filed a new petition on June 18, 2014. But, with a group of other investors, she also sued USCIS over the denial of her first petition, and reached a settlement agreement effective October 15, 2014. Under the terms of that agreement, the group was promised expedited adjudication of I-526 petitions based on approved projects. The second project in which Ms. Sun had invested was approved by USCIS on May 20, 2015. Per the settlement agreement, Ms. Sun withdrew her 2014 petition and filed a new one for the same project on May 27, 2015. It was approved the next month.

   
   


9. Both Ms. Sun’s earlier priority dates are now current under the Visa Bulletin, but her new date is not. Her eldest daughter, Plaintiff Yaotian Xu, will age out in a year. Her son, Plaintiff L.T.X., and her younger daughter, Plaintiff B.T.X., may age out as well. Ms. Sun’s EB-5 funds, which she raised by selling five properties in China, are tied up indefinitely. Yaotian Xu has been in educational and career limbo since 2012. She is currently studying at a U.S. community college on a student visa. L.T.X. is enrolled in an expensive international school in China. Ms. Sun herself put her career on hold to learn English and prepare for a move to the United States.


10. Defendants’ unlawful counting policy has jeopardized Ms. Sun’s finances, career, and her daughter’s education and well-being. The family is six years into their EB-5 journey which has no end in sight. Ms. Sun decided to participate in the EB-5 program in order to provide her children with U.S. permanent residency. Defendants’ unlawful policy and practice will prevent Ms. Sun from realizing that goal.


11. 
    

    Defendants’ policy and practice has caused grave hardships for Plaintiff Fubao Wang (“Mr. Fubao Wang”) and his family. Mr. Fubao Wang expended considerable money, time, and effort on his investment in 701 Seventh Avenue, a mixed-use development near Times Square in New York City, and on his EB-5 application. When Mr. Fubao Wang submitted his I-526 petition in March 2015, and when his I-526 petition was approved in 2016, Mr. Fubao Wang’s daughter, Plaintiff Naixin Wang, was eligible to immigrate to the United States with Mr. Fubao Wang as his child. The Visa Bulletin showed no backlog for EB-5 applicants from China in March 2015. But Mr. Fubao Wang’s daughter now risks being separated from the rest of her family because she will turn 21 while Mr. Fubao Wang waits for visa numbers to become available, due to the backlog. Mr. Fubao Wang decided to participate in the EB-5 program in order to provide his daughter, who has been studying in the U.S. as a high school and college student since 2013, with U.S. permanent residency. Defendants’ unlawful policy and practice will prevent Mr. Fubao Wang from realizing that goal.

    
    


12. Defendants’ policy and practice has caused grave hardships for Plaintiff Hongmei Xiao (“Ms. Xiao”) and her family. Ms. Xiao expended considerable money, time and effort to place $500,000 in an EB-5 regional center fund, which was invested in a real estate development in Maryland. When Ms. Xiao submitted her I-526 petition in January 2015, and when her I-526 petition was approved in March 2016, Ms. Xiao’s son, Plaintiff Jiajun Li, was eligible to immigrate to the United States with Ms. Xiao as her child. But Ms. Xiao’s son now risks being separated from the rest of the Xiao family because he will “age out” while Ms. Yang waits for visa numbers to become available, due to the backlog. Jiajun Li will “age out,” becoming ineligible for an EB-5 derivative visa, in November 2018. Ms. Xiao decided to participate in the EB-5 program in order to provide her son with U.S. permanent residency. Defendants’ unlawful policy and practice will prevent Ms. Xiao from realizing that goal.


13. Defendants’ policy and practice has caused grave hardships for Plaintiff Jianhong Yang (“Ms. Yang”) and her family. Ms. Yang expended considerable money, time, and effort to place $500,000 in an EB-5 regional center fund, which was invested in a real estate development in New York City’s Tribeca district. When Ms. Yang submitted her I-526 petition in September 2014, and when her I-526 petition was approved in August 2016, Ms. Yang’s son, Plaintiff Zijing Liu, was eligible to immigrate to the United States to join Ms. Yang as her child. The Visa Bulletin showed no backlog for EB-5 applicants from China in September 2014. But Ms. Yang’s son now risks being separated from the rest of the Yang family because he will “age out” of eligibility while Ms. Yang waits for visa numbers to become available, due to the backlog. Ms. Yang’s son will age out, becoming ineligible for an EB-5 derivative visa, in October 2018. Ms. Yang decided to participate in the EB-5 program in order to provide her son with a path to U.S. permanent residency. Defendants’ unlawful policy and practice will prevent Ms. Yang from realizing that goal.


14. Defendants’ policy and practice has caused grave hardships for Plaintiff Guonong Chen (“Ms. Guonong Chen”) and her family. Ms. Guonong Chen expended considerable money, time, and effort to place $500,000 in an EB-5 regional fund, which was invested in the Great Wolf Lodge Resort in Anaheim, CA. When she submitted her I-526 petition in 2014, and when her I-526 petition was approved in 2015, Ms. Chen’s son, Plaintiff Haipeng Lu, would have been eligible to immigrate to the United States with Ms. Guonong Chen had there not been a backlog in effect at the time Ms. Guonong Chen’s visa petition was approved. But Ms. Guonong Chen’s son “aged out” while Ms. Guonong Chen and her husband were still waiting for visa numbers to become available, due to Defendants’ unlawful Counting Policy. Therefore, absent intervention from this Court, he will be ineligible to join his parents in the United States as a derivative. Ms. Guonong Chen and her husband have since received their visas to immigrate to the U.S. Ms. Guonong Chen decided to participate in the EB-5 program in order to provide her son, who has been studying in the U.S. as a high school and college student since 2013, with U.S. permanent residency. Defendants’ unlawful policy and practice has prevented Ms. Guonong Chen from realizing that goal.


15. Defendants’ policy and practice has caused grave hardships for Plaintiff Tong Chen (“Mr. Tong Chen”) and his family. Mr. Tong Chen expended considerable money, time, and effort to place $500,000 in an EB-5 regional center fund, which was invested in the mixed-use redevelopment of historic O Street Market in Washington, D.C. When Mr. Tong Chen submitted his I-526 petition in July 2014, and when his I-526 petition was approved in 2015, Mr. Tong Chen’s son, Plaintiff Yiwei Chen, was eligible to immigrate to the United States with Mr. Tong Chen as his child. The Visa Bulletin showed no backlog for EB-5 applicants from China in July 2014. But absent relief from this Court, Mr. Tong Chen’s son will be separated from the rest of the Wang family because he “aged out” while Mr. Tong Chen waited for visa numbers to become available, due to the backlog. Mr. Tong Chen has now received his visa and immigrated to the U.S. in April 2018. He is a resident of Yorba Linda, California. Mr. Tong Chen decided to participate in the EB-5 program in large part to provide his son, who has been studying in the U.S. as a college student since 2015, with U.S. permanent residency. Defendants’ unlawful policy and practice has stymied that goal. The family has been paying tuition for Mr. Tong Chen’s son at community college, at tens of thousands of dollars a year-- tuition would be significantly reduced if Mr. Tong Chen’s son were already a U.S. resident.


16. Defendants’ policy and practice has caused grave hardships for Plaintiff Yongjun Li (“Mr. Li”) and his family. Mr. Li expended considerable money, time, and effort to place $500,000 in an EB-5 regional center fund, which was invested in the Great Wolf Lodge Resort in Anaheim, CA. When Mr. Li submitted his I-526 petition in 2014, and when his I-526 petition was approved in 2015, his daughter, Plaintiff Xin Li, was eligible to immigrate to the United States with Mr. Li as his child. The Visa Bulletin showed no backlog for EB-5 applicants from China in 2014. But Mr. Li’s daughter now risks being separated from the rest of the Li family because she “aged out” while Mr. Li was waiting for a visa number to become available. Mr. Li and his wife received conditional residency in March 2018. They are currently residents of Chino Hills, California. Their daughter, meanwhile, is enrolled in a graduate program at Cornell University with uncertain job prospects due to her lack of work authorization.


17. Defendants’ policy and practice has caused grave hardships for Plaintiff Jingpo Wang (“Mr. Jingpo Wang”) and his family. Mr. Jingpo Wang expended considerable money, time, and effort to place $500,000 in an EB-5 regional center fund, which invested in 65 Bay Street, a rental tower in Jersey City, New Jersey. When Mr. Jingpo Wang submitted his I-526 petition in March 2014, and when his I-526 petition was approved in 2015, Mr. Jingpo Wang’s son, Plaintiff Haixin Wang, was eligible to follow to join Mr. Jingpo Wang as his child. The Visa Bulletin showed no backlog for EB-5 applicants from China in March 2014. But Mr. Jingpo Wang’s son now risks being separated from the rest of the Wang family because he “aged out” while Mr. Jingpo Wang waited for his visa number to become available, due to the backlog. Mr. Jingpo Wang is now a resident of New Jersey. He decided to participate in the EB-5 program in large part to provide his son, who has been studying in the U.S. as a high school and college student since 2011, with U.S. permanent residency. Defendants’ unlawful policy and practice has prevented Mr. Jingpo Wang from realizing that goal.


18. Defendants’ policy and practice has caused grave hardships for Plaintiff Jin Zhu (“Ms. Zhu”) and her family. Ms. Zhu expended considerable money, time, and effort to place $500,000 in an EB-5 regional center fund, which was invested in the expansion of Steiner Studios, a film and television complex in Brooklyn, New York. When she submitted her I-526 petition in 2014, and when her I-526 petition was approved in 2016, Ms. Zhu’s son, Plaintiff Tianze Ye, was eligible to immigrate to the United States with Ms. Zhu as her child. The Visa Bulletin showed no backlog for EB-5 applicants from China in 2014. But, absent relief from this Court, Ms. Zhu’s son will be separated from the rest of the Zhu family because he “aged out” while Ms. Zhu was waiting for a visa number to become available. Ms. Zhu decided to participate in the EB-5 program in order to provide her son, who has been educated in the U.S., with U.S. permanent residency. Defendants’ unlawful policy and practice has prevented Ms. Zhu from realizing that goal.


19. Defendants’ policy and practice has caused grave hardships for Plaintiff Ning Deng (“Mr. Deng”) and his family. Mr. Deng expended considerable money, time, and effort to place $500,000 in an EB-5 regional center fund, which was invested in a building in San Diego, CA, housing a regional office of the Federal Bureau of Investigations. Mr. Deng’s EB-5 experience has been a long one. He first submitted an I-526 petition in 2011, based on a regional center investment in a different project. He, his wife, and his daughter, Plaintiff K.L.D., received conditional green cards in 2014. Months later, however, the regional center through which Mr. Deng had made his investment had to shut down the project, meaning the Deng family had to return to China from the U.S., give up their conditional green cards, and start over again.Mr. Deng invested in his current project and submitted a new I-526 petition in December 2014, which was approved in January 2015. At the time, the Visa Bulletin showed no backlog for EB-5 applicants from China. But the wait time has since dashed Mr. Deng’s plans. Accepting his bad luck with the failure of his first EB-5 investment, Mr. Deng enrolled K.L.D. in international school in China when the family returned, reasoning that they would only have to wait a few years before receiving new visa numbers and he could enroll his daughter in U.S. high school. But with no end to their wait in sight, K.L.D. faces an extremely uncertain educational and professional future. She is off the mainstream Chinese track for educational and professional advancement, and she will turn 21 while Mr. Deng waits for visa numbers to become available, due to the backlog. Mr. Deng decided to participate in the EB-5 program in order to provide his daughter with U.S. permanent residency. Defendants’ unlawful policy and practice will prevent Mr. Deng from realizing that goal. In April 2017, Mr. Deng’s wife, Plaintiff Jing Yang, resigned her job as a state employee to study English and prepare to accompany K.L.D. to the U.S. Jing Yang coped with onerous requirements placed on state employees seeking to emigrate. As a result of the backlog, her lack of employment, and uncertainty regarding her future, Jing Yang is suffering from depression.


20. Defendants’ policy and practice will cause grave hardships for Plaintiff Fang Zhao (“Mr. Zhao”) and his family. Mr. Zhao, who has studied at the State University of New York at Albany and is preparing to enroll in California Northstate University, expended considerable money, time, and effort to place $500,000 in an EB-5 regional center fund, which was invested in the renovation of the historic Century Plaza Hotel in Los Angeles, California. Mr. Zhao filed his I-526 petition in September 2015, and the petition was approved in 2016.


21. The funds Mr. Zhao used for his EB-5 investment were a gift from his parents. His parents sold a property in China in order to provide Mr. Zhao with the funds for his investment. Since Mr. Zhao’s parents sold the property, its valuation has risen significantly, meaning Mr. Zhao’s parents have lost several hundred thousand dollars in investment value. Despite this, due to the backlog, Mr. Zhao faces a wait time of over a decade before he can obtain a provisional green card. Defendants’ unlawful policy and practice will harm Mr. Zhao’s career prospects in the U.S., as he will be unable to work in the U.S. after he graduates. Mr. Zhao has been a student in the U.S. since 2010, is acculturated to the U.S. and has lost many personal connections to his home country. As a result of the Counting Policy, he now faces the prospect of being forced to return to China to wait for a decade or more for a visa to become current, even while his half million dollar investment is actively creating jobs for U.S. workers.


22. Plaintiff American Lending Center LLC (“ALC”) is a USCIS-designated regional center headquartered in Long Beach, California. ALC serves immigrant investors by facilitating capital investments in job-creating new commercial enterprises. In addition to operating as a regional center for EB-5 investment projects in California, ALC also serves as the general partner for new commercial enterprises funded by immigrant investors that invest in projects across the United States through ALC-affiliated regional centers in seventeen states and the District of Columbia. The new commercial enterprises fund the construction and operation of a diverse array of projects including hotels, residential communities, and assisted living facilities. The projects funded by ALC new commercial enterprises have created over 6,000 jobs for U.S. workers.


23. ALC generates revenue by charging immigrant investors an administrative fee for providing its regional center investment services, and through interest payments on loans its new commercial enterprises extend to job-creating development projects. Defendants’ unlawful Counting Policy has had, and continues to have, serious, direct negative impacts on ALC’s business. Historically, most of ALC’s clients have been Chinese citizens. The visa retrogression and associated wait time for EB-5 petitioners from China caused by Defendants’ Counting Policy has stopped many potential Chinese investors from participating in the EB-5 Program, and as a result deprived ALC of numerous clients and the revenue and business opportunities they generate. In the last year alone, the number of new investors signed by ALC has declined by almost 80 percent, and the company has lost over one million dollars in management income. Due to the lack of investors, ALC and its affiliated regional centers have been forced to abandon multiple new development projects that would have created jobs for 2,200 U.S. workers and injected $80,000,000 in new capital into the U.S. economy. The effects of Defendants’ Counting Policy directly threatens ALC’s entire business model and its ability to continue operating as a business.


24. ALC also asserts harm as a third party on behalf of its potential clients as a vendor of EB-5 regional center services. At the current rate of economic loss ALC continues to suffer due to Defendant’s Counting Policy, ALC will be forced out of business, thereby depriving potential Chinese EB-5 investors from utilizing, and realizing the benefits of, ALC’s services. Additionally, numerous potential EB-5 investors from China have refrained from pursuing ALC’s services solely and specifically due to the visa backlog caused by Defendants’ Policy. The interests of ALC and its potential clients affected by Defendants’ Counting Policy are closely related – ALC has an interest is selling its services to EB-5 investors from China and the company’s potential clients from China have an interest in using and paying for ALC’s services in order to promptly obtain conditional permanent residence in the U.S. along with their families. Defendants’ Counting Policy directly frustrates both of these closely related objectives.

Adequacy of Representation

1. The allegations of paragraph 93 and 94 are incorporated herein with respect to the Second Subclass.