Lawsuit filed against USCIS to help Vietnamese EB-5 investors

Summary:

• The Galati Law Firm is filing a FOIA lawsuit to gain insight into the agency's adjudication policies on currency swaps and to defend investors whose applications have been unfairly denied.
• They're calling for clearer guidelines to protect EB-5 investors.
• USCIS has until May 1, 2023, to respond to this lawsuit.

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Article:

The Galati Law Firm filed a Freedom of Information Act (FOIA) lawsuit in late March, asking the USCIS to provide details regarding source of funds policies and statistics related to the agency’s adjudication of Vietnamese EB-5 petitions.

The firm also assisted the American Immigrant Investor Alliance (AIIA) with a FOIA request last fall seeking information from the USCIS. Still, the request has been left ignored by the agency.

Currency Laws in Vietnam Pose a Challenge for EB-5 Investors


Vietnam is one of the many countries with stringent currency laws limiting local money conversion to American dollars. As a result, many investors have had to resort to unconventional methods to transfer their EB-5 funds to the U.S. Vietnamese investors have had to turn to third parties or even cryptocurrency to make these investments happen.

USCIS' Unannounced Policy Changes Crush the American Dream


USCIS never considered these methods detrimental to petition adjudication. They've been used for years and properly disclosed and documented. However, according to the filed complaint, the agency's actions have deviated sharply from the status quo of approximately three decades without warning or formal declaration. The complaint alleges that USCIS has executed a "rug pull," effectively ending the American Dream for many families hoping to find a legal road into the U.S.

According to industry stakeholders, USCIS has issued Requests for Evidence (RFEs) and denials related to currency issues without officially announcing a policy shift. As noted in the complaint, Vietnamese investors have been particularly affected by these RFEs, which request more documentation about their source of funds and money transfers and are concerned about the possibility of denials.

In 2017, a Vietnamese investor participated in the EB-5 program and received a $500,000 gift from his mother and aunt. Despite working with an immigration agent who had successfully submitted applications using a similar remittance method in the past and properly disclosing the source of funds and remittance to USCIS, the investor's application was denied. An appeal has been filed, and he is awaiting a decision from USCIS.

Adjudicators have wasted long hours issuing RFEs and denials on petitions that the Galati firm considers historically approvable.

EB-5 Lawsuit against USCIS to help investors

This FOIA lawsuit is the second suit filed against USCIS by AIIA.

Their previous lawsuit provided AIIA with valuable information such as:

• How USCIS trains adjudicators to re-examine the source of funds at the I-829 stage
• The latest breakdown of pending I-526s by country

The re-examination of the source of funds at the I-829 stage was never previously disclosed to the public. The latest I-526 breakdown could help estimate the waiting time for investors from specific countries seeking a Green Card.

The AIIA seeks to find out about USCIS’s methodology for re-evaluating the source of funds with currency-swap transactions through the FOIA suit. They consider this information critical since many of their Vietnamese stakeholders reported denials at a disproportionately high rate compared to investors from other countries - all due to the re-adjudication of petitions for currency swaps. This information will also allow AIIA to help guide investors when they're filing their immigration petitions.

Galati says the “unannounced” agency policy shift has harmed thousands of investors significantly. He calls on the USCIS to provide clearer guidance on using currency swaps as the legal path of funds. He says doing so will safeguard the EB-5 program as a viable pathway for investors from countries with restrictive currency laws.

According to Galati, the USCIS's unannounced policy shift has negatively impacted many investors, causing significant harm. He urges the USCIS to offer more transparent guidance on utilizing currency swaps as a legitimate way of transferring funds. By doing so, the EB-5 program will remain viable for investors from nations with strict currency laws.

The deadline for USCIS to respond to the lawsuit is on or around May 1, 2023.

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