U.S. Citizenship and Immigration Services on Wednesday dropped its dismissal motion for a case where dozens of Chinese mine investors seeking green cards through the Immigrant Investor Program claim the government unlawfully denied their visas.
USCIS pulled back the motion so it can respond by June 15 to a new, amended complaint that adds 30 plaintiffs to the case and alleges that the federal agency improperly denied Form I-526 petitions filed by the foreigners, who each invested $500,000 in mines in Idaho and Montana.
The complaint claims that USCIS arbitrarily and capriciously determined that a “call option” in the investors' limited partnership agreement with Quartzburg Gold Co. LP negated their investment risk, thereby making them ineligible under the EB-5 program.
The option allowed Quartzburg Gold to choose to withhold distributions to investors and redeem their interest in the company, either through a $550,000 payment or through 400 ounces of gold, if the current price of gold might be worth more than the payment, the complaint said.
The investors argue their money was at risk because Quartzburg Gold’s general partner, private investment and banking firm ISR Capital LLC, was under no obligation to exercise the call option and might not even have the ability to do so, given the chance the mining operations fail.
After the USCIS denied several of the petitions and the first complaint was filed, the federal agency in March began to issue denials for a second set of reasons, including that the commercial enterprise was not principally located in a targeted employment area at the time of the plaintiffs' investment, that the plaintiffs have not invested all of their capital in job-creating activity because some of it will be used to pay fees, and that some of the money was spent on a mine that has closed, according to the amended complaint.
“Defendants unreasonably and improperly concocted new grounds for denial of [the plaintiffs’] materially identical petitions after they brought this lawsuit,” the complaint said.
After the plaintiffs filed their amended complaint on May 27, U.S. District Judge Colleen Kollar-Kotelly gave USCIS until June 3 to notify the court whether it intended to file a new motion for dismissal, necessitating the denial of the previous motion.
Attorneys for the plaintiffs could not be reached Friday for comment.
The plaintiffs are represented by Robert C. Divine and J. David Folds of Baker Donelson Bearman Caldwell & Berkowitz PC.
The federal government is represented by Sarah S. Wilson and Glenn Girdharry of the U.S. Department of Justice Office of Immigration Litigation.
The case is Does 1-72 v. United States Citizenship and Immigration Services et al., case number 1:15-cv-00273, in the U.S. District Court for the District of Columbia.