In the EB-5 investor industry, efficiently utilizing carryover visas from other EB categories is crucial. However, USCIS processing delays and bureaucratic inefficiencies often hinder this efficiency. This article proposes a structured approach starting with direct engagement with USCIS, followed by public advocacy, and considering litigation as the final step to ensure these valuable carryover visas are effectively used.

Direct Engagement with USCIS

Engaging directly with USCIS can lead to substantial improvements:

• Formal Petitions and Comments: Submit petitions and comments during USCIS rulemaking processes, offering expert insights for efficiency enhancements.
• Stakeholder Meetings and Forums: Actively participate in USCIS stakeholder meetings to directly voice concerns and propose improvements.
• Collaborative Proposals for Process Improvement: Develop detailed process improvement plans, potentially in partnership with immigration law experts and consultants, and present them to USCIS.

Public Advocacy and Engagement

Public advocacy can create the necessary pressure for change:

• Targeted Advocacy and Lobbying: Engage in lobbying efforts with lawmakers to enact legislation that mandates specific USCIS processing timelines for EB-5 applications.
• Public Pressure Campaigns: Use media and public platforms to highlight USCIS processing inefficiencies, generating public support and governmental action.
• Collaboration with Business and Economic Entities: Partner with chambers of commerce and economic development entities to amplify the program’s economic benefits and the negative impacts of processing delays.

Legal Strategies as a Last Resort

If direct engagement and public advocacy do not yield results, legal action can be considered:

• Litigation Under the Administrative Procedure Act (APA): Pursue lawsuits alleging USCIS’s failure to process applications in a timely manner is a violation of the APA, using previous engagement efforts as evidence.
• Mandamus Actions: File for a writ of mandamus to compel USCIS officials to adhere to processing deadlines, bolstered by evidence from previous direct and public engagement efforts.
• Class Action Lawsuits: Unite affected investors and regional centers in a class action lawsuit, using the collective weight of prior engagement activities to strengthen the case.
• Regulatory Takings Claims: If USCIS inaction has led to financial losses, argue for regulatory takings, with evidence gathered from previous advocacy and engagement.
• Freedom of Information Act (FOIA) Requests: Strategically use FOIA requests to support legal claims, backed by data on processing times and backlogs.

Conclusion

To ensure effective utilization of EB-5 visa carryovers and compel USCIS to improve processing efficiency, the EB-5 industry should first engage directly with USCIS, followed by public advocacy, and consider litigation as a final step. This structured approach leverages a combination of strategies to maximize the potential of the EB-5 program, benefiting investors and the U.S. economy.