Chinese Investors File Class Action Complaint Against U.S. Government Over EB5-Program

On July 25, 2018, Chinese EB-5 investors filed a class action complaint in the United States District Court for the District of Columbia against the United States of America, the State Department, the Secretary of State, and a Deputy Assistant Secretary of State. Plaintiffs allege that the Department of State reduces the number of visas available for EB-5 investors by unlawfully counting the spouses and children of EB-5 investors against the EB-5 quota.
In 1990, Congress established a quota of EB-5 visas for foreign entrepreneurs who invest $1,000,000 in a new U.S. business or $500,000 if the investment project is in a rural area or an area of high unemployment, and who demonstrate that their investment will create ten or more jobs for qualified U.S. workers.. An investor’s spouse and children also qualify to immigrate to the United States as “derivatives” of their EB-5 investor relative. Plaintiffs allege that the Immigration and Nationality Act does not authorize the State Department to count an EB-5 investor’s “derivatives” against the EB-5 visa quota.
Plaintiffs allege that the State Department’ unlawful counting of spouses and children against the EB-5 visa quota has created a vast backlog of EB-5 visa applications, with the result that Chinese investors who file an EB-5 visa petition must wait 16 years before they become eligible to immigrate to the United States. Plaintiffs allege that many EB-5 investors are forced to languish in ever-growing visa queues while their children grow up and “age out” of eligibility to immigrate to the Unites States as their dependents.
Plaintiffs allege that Defendants’ counting policy violates the Administrative Procedure Act (APA), and seek to enjoin Defendants from continuing to implement their counting policy.