Lawsuit To Challenge EB-5 Cap Interpretation

  

As some of you have already heard, a major lawsuit intended to speed up EB-5 processing has been initiated by Ira Kurzban, who is perhaps the most distinguished immigration attorney in the U.S.   Ira lives right here in Miami and through his long and distinguished career, has won countless victories on behalf of refugees, families and investors.  The lawsuit is behalf of 450 Chinese EB-5 investors but, if successful, could be transformational and beneficial to ALL EB-5 investors stuck in long USCIS processing queues.  If there is anyone in the U.S. who has the intellectual horsepower, passion and expertise to succeed, believe me: it is definitely Ira Kurzban. 

The aim of the lawsuit is to substantially reduce the current EB-5 visa backlog facing investors and their families, especially for Chinese investors expecting 15 year delays and children “aging out”’.   The theory behind the litigation is as old as the EB-5 regulation itself: Kurzban is arguing that back in 1990 when the EB-5 law was created and Congress said “10,000 visas per year”, it meant 10,000 INVESTORS per year…not counting family members.  

In fact, that IS what Congress intended, but since the 10,000 limit was not reached for decades, it was something that never had to be argued.  Over the past few years, understanding that the probability of increasing total visa numbers for the EB-5 category was highly unlikely, the industry rekindled this discussion regarding 10,000 cap.  The crazy thing about it is that, by ALL accounts in the history of EB-5, it is crystal clear that Congress meant 10,000 INVESTORS…and that is the reason why I predict victory for the plaintiffs. 

The Congressional record regarding the passage of IMMACT 90 confirms that Congress’s original intent to admit 10,000 investor families, not merely 3,000 investors and their families, as is currently the case.  As Congress was debating the new EB-5 law, consider the words of its primary proponents:

Representative Smith, a Texas Republican, stated on the record: 

“I would like for my colleagues to know that this particular provision of the immigration bill is actually the only provision of the immigration bill that is absolutely guaranteed to create jobs and produce revenue for the U.S. Government.  In fact, if these 10,000 investor visas are taken advantage of, it will create a minimum of 100,000 jobs in the United States, and it will generate revenue of up to $10 billion for the Government….”

As AILA pointed out in a white paper on the subject, Rep. Smith's math is clear: if 10,000 investors come into the country and start a business that will employ at least a minimum of 10 employees, you get 100,000 guaranteed jobs.    On October 26, 1990, Senator Kennedy (D-MA) said the following with regard to the original EB-5 direct visa category: 

“Mr. President, 10,000 employment generating visas are provided for investors who invest in enterprises, especially in depressed rural or urban areas, which create a minimum of 10 new jobs for Americans.” 

·        On the same point, Senator Simon (D-IL) similarly stated: 

“We have an investor program that will permit up to 10,000 people to make investments here, to come to this country and create jobs. It is particularly targeted to areas of high unemployment. I think that will be of great help.”

So there you have some of the primary advocates of the EB-5 visa at its inception, ALL with the clear understanding that they were creating 10,000 slots for PRIMARY INVESTORS.  As AILA put it…”accordingly, as shown in the Congressional record, the original intent was to admit 10,000 investors through the EB-5 program, creating 100,000 jobs in the U.S.”  Period!  

American Venture Solutions Regional Center fully supports the effort of Mr. Kurzban on behalf of his Chinese EB-5 investor clients.   If he is victorious, it will be a victory for ALL EB-5 investors with cases languishing at USCIS. 

Go get ‘em, Ira! 

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