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Behring Sues USCIS (Again) to Enforce FOIA Requests to Promote Transparency

May 16th, 2024 Peter Bibler

USCIS PROVIDING TIMELY PROCESSING DATA WILL PROMOTE EB-5 TRANSPARENCY AND ENHANCE INTEGRITY

On April 29, 2024, Behring filed a complaint in federal court to compel USCIS to respond to Behring’s Freedom of Information Act (FOIA) requests submitted to gain greater clarity of EB-5 filing numbers and processes. Our goal is to increase USCIS transparency and enable EB-5 investors to make informed decisions when choosing EB-5 projects and applying for the EB-5 immigrant investor visa.

Behring extends its role as thought leader in the EB-5 market by expanding FOIA requests beyond just the filing numbers but also for records on important post-RIA internal standards and policies that impact how to understand these numbers.

Background: Behring Files FOIA Request

Behring filed several FOIA requests asking USCIS to produce records. These include records related to:

  1. The number I-526E petitions filed from March 15, 2022 through March 14, 2024, including adjudication status, country of chargeability, and category of filing (e.g. rural vs HUA)
  2. The number of I-485 petitions filed from March 15, 2022 through March 14, 2024
  3. The number of I-956F petitions filed, including records on number of expected EB-5 investors expected, capital raise targets, category of filing, etc.
  4. The number of IPO staff and allocation of IPO staff on various EB-5 petitions
  5. Policies and procedures on how USCIS “prioritize[s]” the processing and adjudication of petitions for rural areas
  6. Policies and procedures on how USCIS uses the dual visa codes when processing I-485 adjustment applications to maximize visa issuance and avoid visa waste

By having clarity on these issues, EB-5 families can better avoid mere “sales talk” and aggressive marketing tactics. Instead, investors can focus on what matters: the quality of the EB-5 project and the experience of their EB-5 platform partner.

Numbers Don’t Lie: Getting Detailed Updates Can Help Inform Investors Estimate Timeline to Get the EB-5 Green Card

Although USCIS releases filing numbers by quarter for the I-526 / I-526E petition and the I-829 petition, it does not do so in a timely manner. Delays in data release can be up to a year or more. Moreover, it does not break these down by Rural, High Unemployment Area, or Infrastructure visa set aside petitions, and rarely publishes numbers by country of chargeability (or origin). These inputs are critical to understanding processing backlogs and visa retrogression.

The Department of State (DOS) publishes the monthly Visa Bulletin to show which visa preferences and categories are current based on country of birth, but it does not provide a complete picture for EB-5 investors as to how long it will take to obtain a green card. The Visa Bulletin only displays the “final action dates” or “filing dates” for visa applications. These dates indicate when applicants can expect their visa applications to be processed based on their priority date and the availability of visas. However, they don’t necessarily reflect the actual processing times or the full extent of the backlog.

This is because USCIS processing times distort the number of visas that may be available in the future. Passage of the RIA brought necessary reforms (e.g. concurrent filing, regional center background checks, site visits, etc.) to the EB-5 Program and provided a much-needed longer-term extension and “grandfathering” protection for investors. Putting the EB-5 Program on solid ground for the first time since 2015 had brought about a resurgence, notwithstanding the increase to the required investment amount to $800,000. This popularity has also been driven by unfortunate circumstances by H-1B families experiencing job layoffs. Without meaningful immigration reform to address the visa backlogs in EB-2 and EB-3 visa preferences, many H-1B families look to EB-5 as a faster means for greater job security and to avoid having their children age out and go through the F-1 / H-1B paths their parents had to endure.

Increased filings add to the large number of pre-RIA and growing post-RIA petitions awaiting adjudication by USCIS. USCIS-published processing times are notoriously overstated. And while USCIS is working hard to improve processing times, they remain too long. And the longer it takes for a petition to be approved, the longer it takes before that family is allocated visa numbers for the petitioner and beneficiaries (spouse and unmarried children under 21). This lag means that while the Visa Bulletin states that the EB-5 reserved visas (rural, HUA, and infrastructure) are current for all countries, in reality, there could be backlogs for China, India and other high-demand countries in the near future. This is also exacerbated by creating the set asides themselves because it takes away visas from existing EB-5 investors that filed before the RIA. The low country caps in each category also means that quotas can be exceeded relatively easily without creative policy like using dual approval codes to access the waning demand in unreserved EB-5 visa inventory.

Knowing the number of filings, the reserved visa categories in which new EB-5 petitions have been filed as well as by country of origin is very important. It can help investors, immigration lawyers and other stakeholders more accurately predict if and when, and to some extent, how long backlogs will occur.

The other key factor Behring seeks to understand is how are EB-5 green cards being issued, particularly to the Rest of World (ROW) petitioners (outside of China and India). Not enough new post-RIA green cards have been issued to determine if, when and how long backlogs could occur. We have seen I-526E petition approvals have 2 visa codes: one for unreserved, one for reserved, even if that investor invested in a reserved EB-5 project (i.e., rural, HUA, infrastructure). We have also seen those same investors in reserved categories be awarded an unreserved visa. This is very important: if USCIS and DOS issue unreserved green cards to ROW families (Rest of World), this frees up more reserved green cards in that fiscal year to reserved investors from countries with higher demand, viz. China and India, mitigating backlogs.

Behring has seen this in practice. Now, we seek to get records of how USCIS is implementing this policy to confirm this is indeed the official practice.

RIA Policy: Getting Clarity on RIA Policies Can Offer Investors More Predictability and Clarity Regarding their EB-5 Investment

Current data can help EB-5 investors see if visa backlogs can be mitigated or prevented

The EB-5 Reform and Integrity Act of 2022 (RIA) contained significant policy changes that were left undefined by Congress. USCIS is expected to, and in some instances, is expressly required by the RIA to publish federal rules to clarify and implement RIA provisions. As of May 2024, USCIS has not published any notices of proposed rulemaking since the RIA was enacted on March 15, 2022.

One notable new policy was a provision that stated USCIS would prioritize the processing of petitions for rural areas pursuant to INA § 203(b)(5)(E)(ii). This change stemmed from certain senators seeking to redirect EB-5 investments from traditionally favored urban projects to rural areas, often neglected by developers and investors alike given the challenges inherent in financing, developing and exiting rural projects. This is not to say that all rural projects are bad, only that rural communities do not enjoy the same features that are hallmarks of urban projects. These include: (1) accessible capital such as institutional lenders; (2) reliable infrastructure such as public transit to access the project; (3) market demand drivers to attract tenants, buyers, or occupiers of to the project; (4) and public and private equity or debt to exit the project through a sale or refinance of the project. This does not mean that all urban projects are superior. Each project is different in its risks and risk mitigation measures, which can vary widely based on location, asset type and more.

As mentioned above, in an effort to promote greater EB-5 economic investment in rural areas, Senators Grassley and Leahy from the rural states of Iowa and Vermont insisted on certain measures in the RIA, such as priority processing and visa set-asides. Yet 2 years after the RIA’s passage, a renewed EB-5 Program is showing the limitations these measures have, which may in fact pose greater problems in the future. “Priority ” processing was mentioned once in the RIA yet left undefined by Congress. Statutes are traditionally interpreted narrowly, and it is notable that Congress did not use defined procedural terms previously used in the Immigration and Nationality Act, such as “expedited processing” or “premium processing.”

For example, ”expedited processing” can occur upon request for urgent personal circumstances. Behring had several I-526 petitions approved during the COVID-19 pandemic for our physician investors who were on the frontlines helping patients. “Premium processing” for a fee has been proposed to USCIS for EB-5 adjudications several times in the past, but to date there is no premium processing in EB-5.

Priority processing under the RIA refers only to petitions for rural areas pursuant to INA § 203(b)(5)(E)(ii). In other words, it refers to post-RIA I-526 / I-526E petitions. It does not expressly refer to applications such as the I-485 Application to Adjust Status or the DS-260 Immigrant Visa Application, or the Employment Authorization Document (EAD) and the Advance Parole (AP), which will be issued as interim benefits for US-based filers in 2-4 months regardless of where your project is located.

Nevertheless, many promoters overreach by claiming priority processing means an investor will get a green card quickly.

Get the Facts: Avoid Aggressive Misleading Sales Talk

Disclosure of these records is consistent with the principles of the RIA, particularly in strengthening the integrity of the EB-5 Program. By timely and comprehensively updating the public on the number of filings, USCIS helps all EB-5 stakeholders, but especially EB-5 investors from historically high demand countries, such as China, India and Vietnam, to assess the likelihood of a visa backlog. Far too often, EB-5 regional centers and their promoters, including overseas immigration agents, claim “fast green cards.” Some knowingly mislead EB-5 investors that they can get a green card in just 12 months.

Others overly rely on the “promise” of priority processing for rural projects to claim that EB-5 investors will not only have their I-526E petition approved faster, but also a faster Employment Authorization Document (EAD), Advance Parole (AP) or the I-485 Application to Adjust Status or the DS-260 Immigration Visa Application for the green card. In reality, regardless of which project you invest in, whether HUA, rural or infrastructure, you will receive your EAD/AP in about 2-4 months from the date of filing. Moreover, in 2024, rural I-526E petitions have taken 14-17 months for approval – no longer are we seeing faster approvals experienced by just a couple of (now closed) rural EB-5 projects in early 2023.

Getting the data straight from USCIS will help to clear the confusion and enable EB-5 investors to focus on what matters most: performing due diligence for EB-5 project on investment fundamentals and choosing an experienced and reliable EB-5 regional center. EB-5 investors should not be manipulated to choose a project based on fear or false promises.

What’s Next: USCIS Must Respond to Behring’s Complaint

USCIS is expected to respond to the complaint on or before June 2, 2024. We anticipate various responses, ranging from a motion to dismiss the complaint to discussion on reaching an agreement on document production.

Once USCIS begins to respond, it could share hundreds, even thousands of pages of records that the Behring team and its legal team at Kurzban, Kurzban, Tezeli and Pratt P.A. a great deal of time and resources to parse through. Unfortunately, the numbers will be limited to mid-March and given the lag-time files are delivered by the lockbox contractor to be assigned a IOE number, the numbers may be incomplete. Thus, it is imperative to keep pressure on USCIS to timely publish detailed numbers on a regular basis.

While requesting records on filing numbers is straightforward, we expect that USCIS will not be as forthcoming on records regarding our FOIA requests regarding certain RIA policies.

Nevertheless, USCIS must respond and inform the public on how it handles rural and HUA petitions in a way that is consistent with the RIA but fair to all EB-5 investor families. USCIS must also explain how it is maximizing visa availability and avoiding visa waste by using the dual visa codes as a way to free more reserved visas to high-demand countries to mitigate potential backlogs.

To disregard the FOIA requests and prevent meaningful disclosure of USCIS filing numbers, policies and procedures damages the integrity of the EB-5 Program and would be inconsistent with the intent and spirit of the EB-5 Reform and Integrity Act. Bad behavior, investor manipulation, misrepresentation and even fraud occurs when there is a lack of agency clarity, consistency, and delay in processing petitions, updating its online Policy Manual, and publishing federal rules and regulations. Integrity is a promised hallmark of the RIA but much more transparency is needed by the service itself. Behring again takes this legal action on behalf of the entire EB-5 industry.

To learn more about Behring’s FOIA lawsuit or its current EB-5 project, the RISE Fund, schedule a call with our team

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