EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 - Page 7

is rare, and the IPO invariably sides with its officers, failing to provide meaningful review or guidance. Another reason EB-5 litigation is more prevalent is that many are bypassing the non-mandatory administrative appeal process which takes too long for a decision and usually just rubber-stamps the decision of the USCIS adjudicator. Notably, in Fiscal Year 2020, the Administrative Appeals Office dismissed 36 appeals while sustaining only 2 and remanding the remaining 6. In some instances, however, it may be strategically advisable to file a Motion to Reopen – to supplement the record before heading to federal court to challenge USCIS’ adjudication. USCIS is very good at casting aspersions in its contextual decision-making and implying something is wrong even when the transaction is normal in the course of business. There is no doubt some officers pick on certain cases, and 32-page requests for evidence, often asking for evidence which is already in the file, are not uncommon. Use of boilerplate RFE’s is increasing as almost every case endures bureaucratic challenges, and the legal standard of proof, the preponderance of the evidence, is ignored in favor of a “beyond and reasonable doubt” standard that is plainly unlawful in civil proceedings. Those trying to navigate this treacherous path without experienced counsel often find themselves in a deadlocked predicament. MANDAMUS AND UNREASONABLE DELAY UNDER ADMINISTRATIVE PROCEDURES ACT making it impossible to even apply for U.S. naturalization, and USCIS will not automatically extend the two-year green card beyond the initial 18 months, making it difficult for immigrants to get proof of status, travel or work. EB-5 INVESTORS ARE TURNING TO THE COURTS TO CHALLENGE THE IMMIGRATION PROCESS The USCIS, Department of State, including the NVC processing of EB-5 cases adds to the pain. Abrupt policy changes without following the proper regulatory procedure, are the norm. As a result, EB-5 stakeholders are getting frustrated and are now more willing than before to challenge USCIS unlawful denials, unreasonable delays, and incorrect interpretations of EB-5 regulations in the courts. The good news is the courts are listening, and in some instances shocked to see what is going on. Sadly, the USCIS’s Administrative Appeals Office, is not an independent tribunal and almost always sides with the officers in their agency. The statistics on AAO victories show overcoming denials Mandamus litigation is a useful tool for EB-5 investors who are harmed by USCIS’ long case processing and has become more popular. This includes immigrant investors running out of time in nonimmigrant visa classifications seeking I-526 adjudications, conditional green card holders who cannot fully derive the benefits of their conditional lawful permanent residency seeking I-829 adjudications, and EB-5 Regional Centers and U.S. developers seeking I-924 adjudications to provide more assurance to potential investors. " EB-5 stakeholders are getting frustrated and are now more willing than before to challenge USCIS unlawful denials, unreasonable delays, and incorrect interpretations of EB-5 regulations in the courts " Victories by plaintiffs facing unreasonably long adjudication delays have come up in the last year for claims under the Administrative Procedures Act (APA) by defeating reflexive motions to dismiss by USCIS seeking to rid itself of cases based on USCIS’ posted processing times and supposed “rule of reason” in processing cases under the Visa Availability Approach introduced in early 2020. In August 2020, a U.S. District Court judge ruled: “The fact that USCIS takes e quall y lo ng o r long e r to adjudicate other applicants' petitions does not in itself show that such delay is reasonable.” Wurtz v. USCIS et al. 1 In this case, the Form I-526 at issue was filed in January 2018 and the EB5INVESTORS.COM 7