EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 | Page 9

comply with the notice and comment rulemaking pursuant to the APA, that it is impermissibly retroactive and violates due process, and that, as a reversal on established policy, it was arbitrar y and capricious. Additionally, plaintiffs argue the 2020 redeployment policy violates the APA and the Federal Vacancies Reform Act because the acting officials of USCIS, Kenneth Cuccinelli and of DHS, Chad Wolf, were not lawfully appointed and thus lacked the statutory authority to establish policies or rules at USCIS. " EB-5 stakeholders are litigating against USCIS when it creates new rules or policy without following the correct procedures set forth in the Administrative Procedures Act " This last argument is similar to that set forth in both Florida EB5 Investments LLC v. Wolf et al. 6 and Behring Regional Center v. Wolf, et al. 7 , which challenges that EB-5 Modernization Rule that went into effect on Nov. 21, 2019. The plaintiffs also argue, among other claims, that the regulations were arbitrary and capricious because DHS failed to properly consider the economic impact the Rule would have on the EB-5 Program and on small businesses and the U.S. economy. While the judge denied the former’s request for a preliminary injunction, other federal courts have indicated that Wolf was not serving lawfully and therefore did not have authority to change other immigration benefits, like the attempt to restrict Deferred Action for Childhood Arrivals (DACA). 8 Each of these cases remain under review and will be carefully watched by EB-5 stakeholders. They demonstrate that USCIS must follow the rules set forth by Congress when creating new rules that impact the EB-5 community. While Congress is focused on integrity measures and the EB-5 industry uneasy about the upcoming reauthorization of the regional center program, these litigation effor ts illustrate another level of concern – a runaway government agency unlawfully restricting access and eligibility to EB-5 benefits. D H S has th e n ew d i re c to r w h o understands the program but may be so overwhelmed with challenges at every level that the courts are the only option to get justice in the EB-5 arena. The courts have generally been overwhelmingly suppor tive and almost all cases are resolved expeditiously. It would, however, be nice to be able to get fair and legal processing without having to litigate. Sadly, we not there and are not yet seeing signs of improvement. Joseph “Joey” Barnett is a partner at Wolfsdorf Rosenthal LLP and a member of the firm’s EB-5 and business immigration practices. He is licensed as an attorney in Illinois, Wisconsin, and the District of Columbia, and practices exclusively in immigration and nationality law. Barnett has extensive experience representing immigrant investors seeking permanent residency in the United States through USCIS-designated Regional Centers and investment in their own businesses. Barnett also counsels U.S. businesses in using Regional Centers for the receipt of EB-5 capital to create jobs . Barnett is also responsible for other immigration matters, including E-2 Treaty Investor Visas and APA actions against the U.S. government. Bernard Wolfsdorf is a State Bar of California Certified Specialist in Immigration Law and former president of AILA, where he earned the Service Excellence award. Wolfsdorf is managing partner of WR Immigration, a Chambers USA Band 1 (California) top rated law firm with offices in Boston, Los Angeles, New York, Oakland, San Francisco, Santa Monica, and Shanghai. Wolfsdorf has been selected as Immigration Lawyer of the Year by WWL and by Best Lawyers U.S. News and World Report. EB5 Investors Magazine named him in its ranking for the fifth time. Chambers USA describes him as “(o)ne of the hardest-working immigration lawyers around.” Sources: 1 https://casetext.com/case/wurtz-v-us-citizenship-immigration-servs https://casetext.com/case/gutta-v-renaud 3 https://law.justia.com/cases/federal/appellate-courts/cadc/19-5021/19-5021-2020-10-27.html 4 https://law.justia.com/cases/federal/appellate-courts/cadc/19-5025/19-5025-2020-08-21.html 5 https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20200724- EB5FurtherDeployment.pdf 2 6 https://cdn.shopify.com/s/files/1/1115/2808/files/Lawsuit_for_Injunction_-_FL_Regional_Center_ VS_USCIS_to_Stop_EB-5_Rule_Changes.pdf?56 7 https://behringeb5.com/eb-5-litigation-updates-page/ https://www.nbcnews.com/politics/immigration/federal-judge-rules-acting-dhs-head-chad-wolf- unlawfully-appointed-n1247848 8 EB5INVESTORS.COM 9