EB-5 Victory: Zhang v. USCIS

Zhang v. USCIS - "[T]he essential issue is whether lawfully-obtained, loan proceeds invested in the enterprise as cash are properly characterized as “cash” or as “indebtedness” pursuant to 8 C.F.R. § 204.6(e). Because the Court agrees that USCIS’ interpretation of its regulation is plainly erroneous, denying plaintiffs’ petitions pursuant to that interpretation was arbitrary and capricious. Moreover, the Court finds that USCIS’ interpretation effectively amends a regulation without notice and comment, violating the APA. ... For the foregoing reasons, the Court GRANTS IN PART plaintiffs’ motion for summary judgment; DENIES USCIS’ cross-motion for summary judgment; GRANTS plaintiffs’ motion to certify class, albeit with a modified class definition; and DENIES AS MOOT plaintiffs’ motion to amend the complaint. USCIS’ decisions to deny plaintiffs’ and class members’ petitions are therefore VACATED and the denials are REMANDED to USCIS for reconsideration consistent with this Memorandum Opinion. The Clerk of Court is directed to close this case, with such closure being without prejudice to a motion to re-open following further USCIS proceedings."

[Hats off to Ira Kurzban!]