Ill. Court Sides With Gov't In EB-5 Residency Status Row

Ill. Court Sides With Gov't In EB-5 Residency Status Row

EB-5 Visa, EB5 Visa, EB-5 Investment

An Illinois federal judge ruled for the government Tuesday in the case of an Iranian EB-5 investor who sued after U.S. Citizenship and Immigration Services declined to remove conditions from his permanent resident status, saying the agency had reasons for its decision. 

U.S. District Judge John Z. Lee granted summary judgment to the government in a suit brought by a man identified only as “Joe Doe,” an Iranian national who attempted to get a green card using the EB-5 visa program by investing in an enterprise aimed at building an assisted living center in Illinois, according to the order.

The EB-5 program provides green cards to foreign nationals who invest a minimum of $500,000 in a U.S. project that creates at least 10 jobs. As part of the program, investors are first given conditional permanent resident status, but they can later request to remove these conditions.

According to the order, USCIS issued a decision in January 2015 rejecting Doe’s I-829 petition, which is the form used to remove the conditions on one’s permanent resident status.

USCIS found Doe hadn’t shown that he had sustained the “capital investment” mandated by the visa program, and the agency also decided that he failed to show compliance with the job creation aspect, according to the opinion.

Doe alleged in an amended complaint he filed in April 2015 that the decision denying his request to have his status changed was arbitrary, capricious and unreasonable.

He said the government made an “unfounded and baseless allegation” that the purchase of real estate by job creating entity Elgin Memory Care LLC from UIS Development LLC was neither legitimate nor a so-called arm’s length transaction, which he argued runs counter to the evidence he submitted to USCIS in his I-829 petition and his response to the agency’s request for evidence.

But in Tuesday’s order, Judge Lee said, "It is clear from the record that USCIS was deeply concerned about the legitimacy of EMC’s land deal and whether Plaintiff’s capital had, in fact, been used to support job creation activities by the assisted living facility."

“Based on these circumstances, the Court cannot conclude that USCIS’s concern that Plaintiff’s capital was diverted from job creating activities was arbitrary or capricious,” Judge Lee wrote.

The court also found that USCIS’s decision to reject the I-829 petition “on the basis that he did not demonstrate his compliance with the EB-5 program’s job creation requirement by a preponderance of the evidence” was neither arbitrary nor capricious.

Doe had also argued that USCIS ran afoul of his due process rights by applying a “standard higher than preponderance of the evidence,” and not taking into account all relevant evidence, according to the opinion. But the judge said that “these arguments merely rehash the arguments that have been previously rejected herein and cannot establish a procedural due process claim.”

Doe was allowed to remain anonymous based on his claim that he could be subject to sanctions if ordered to go back to Iran.

Nicole A. Navas, a spokesperson with the U.S. Department of Justice, declined to comment on the case.

John R. Floss, who represented Doe, told Law360 that his team is “certainly disappointed in the ruling, as we believe the client had successfully demonstrated his fulfillment of the requirements necessary to remove the conditions on his residency, and that the I-829 denial contained both factual inaccuracies and misapplications of law and policy.” 

“We are reviewing the opinion to determine the best course of action for the client moving forward,” he added.

Doe is represented by John R. Floss of Kameli & Associates PC.

The federal government is represented by Katherine Elizabeth Goettel of the Justice Department.

The case is Doe v. Johnson et al., case number 1:15-cv-01387, in the U.S. District Court for the Northern District of Illinois.


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