EB-5 Investor Sues USCIS Over Application Delays

A Chinese immigrant and an EB-5 investor fund have lodged a complaint against the U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services, accusing the agency of delaying a green card application so severely that it’s hurting the business. 

Investor Dongliang Fan and South San Francisco Development Funding LP alleged in New York federal district court Thursday that USCIS has taken too long to approve Fan’s request to immigrate under the popular EB-5 visa program, which gives green cards to foreign residents who invest hefty sums of money in a U.S. project that creates a certain amount of jobs.

“The investor’s I-526 petition for an immigrant visa has been delayed significantly beyond USCIS published processing times, to the detriment of the associated regional center, investors in the project, the job creating project to be funded with investor plaintiff’s investment, and the fund itself,” the complaint said.

According to the complaint, Fan, a 30-year-old Chinese citizen, invested $500,000 in October 2014 toward South San Francisco Development Funding’s construction project for a four-story mixed-use development with 20 residential units plus commercial space.

The nearly 2-and-a-half year delay in processing his application has resulted in “ongoing uncertainty about his immigration status,” and about the project's future, according to the complaint. It says that the longer his visa processing is delayed, the less likely he is to get all his money back in the event that his application is denied, further complicating the project.

The project is now fully funded at $4 million from eight investors, including Fan, but he still hasn’t received the immigration benefit from his investment, according to the filing.

After reaching out to the agencies for more than two years, filing a lawsuit is Fan’s and the fund’s only resort, according to the complaint.

“Plaintiff has made multiple inquiries with defendant USCIS over the course of the last 26 months about the status of his petition, but has received only form responses from USCIS, with no meaningful or case specific information,” the complaint says.

Thursday's suit also names as defendants DHS Secretary Jeh Johnson, USCIS Director Leon Rodriguez and USCIS Immigrant Investor Program Office Chief Nicholas Colluci.

Daniel B. Lundy of Klasko Immigrant Law Partners LLP, who is representing Fan, told Law360 on Friday that USCIS’ form responses give people in Fan's situation no choice but to file a mandamus action, which can force federal officials to take action in their official capacity.

“You can’t get any meaningful response from them when your case is beyond processing time,” he said.

The complaint asks the court to force the agencies to process Fan’s visa petition and to pay his and the fund’s attorneys’ fees.

USCIS could not be reached for comment Friday.

Fan and South San Francisco Development Funding is represented by Daniel B. Lundy of Klasko Immigrant Law Partners LLP.

Counsel information for the government was not immediately available.

The case is South San Francisco Development Funding, LP et al v. Johnson, et al, case number 17-cv-00406, in U.S. District Court for the Southern District of New York.

https://www.law360.com/articles/883278/eb-5-investor-sues-uscis-over-application-delays

Mentions

• U.S. Citizenship and Immigration Services
• Daniel B. Lundy
• Klasko Immigration Law Partners, LLP

States

• District Of Columbia