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