DISAPPOINTED SEEKERS OF INVESTMENT VISAS SUE INS

Foreign nationals who had sought to immigrate to the U.S. through substantial investments in the U.S. economy via the EB-5 visa category are suing the INS in federal district court in San Francisco. This suit is not unique. Other disappointed candidates have also sued, but this suit is the biggest, with 208 plaintiffs.

The EB-5 investor visa was created in 1990 to attract foreign investors. It requires a minimum investment of $ 500,000 and the creation of at least 10 jobs for U.S. workers. The initial investment will get a conditional visa valid for two years, and if after those two years the financial obligations entailed in the visa are satisfied, permanent residency is granted.

Most of those involved in this lawsuit used AIS, a firm that specialized in placing investments for EB-5 visas. Recently AIS came under scrutiny, with the INS rejecting many applications from potential immigrants who used AIS’ service. AIS set up a program where the immigrant could invest a smaller sum than the law required and secure the rest through a promissory note. For several years the INS was approving these cases, but they recently became suspicious that immigrants were not making the full required investment, and began denying most petitions.

The lawsuit alleges that the increased denials were the result of a change in INS policy that should not be allowed to take effect because it was never published in the Federal Register. All substantive agency regulations must be published in the Federal Register. According to William Cook, who was INS General Counsel in 1990 and now represents AIS, the INS made the changes in secret and now wants to apply them retroactively. Lawyers who represent the plaintiffs, Ira Kurzban of Miami and Marc Van Der Hout of San Francisco see the suit as an attempt to "rein in a lawless agency."

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