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Homeland Security Facing Suit Over EB-5 Investor Visa Denials

May 06, 2015 (2 min read)

From Law360, May 5, 2015 -

"American Logistics International LLC filed suit in D.C. federal court on Monday against the Department of Homeland Security, alleging that the agency has capriciously chosen to deny EB-5 investor visas to more than a dozen U.S. resident aliens.

The Carson, California-based company, which is an approved U.S. Citizenship and Immigration Services-designated regional center under the Immigrant Investor Program, claims that DHS has denied form I-526 petitions by immigrant investors from Iran and Vietnam or has delayed action on form I-526 or I-829 petitions in violation of federal law and USCIS policy. I-829 petitions are filed to remove the conditional status of permanent residency and obtain permanent green cards.

American Logistics says that DHS’ denials are predicated on an inaccurate finding that the funds are not “at risk” — which they are required to be under the EB-5 program. The company also contends that the underlying motivation for the denials is likely because of an unsubstantiated claim made by Senate Judiciary Committee Chairman Charles E. Grassley, R-Iowa, in 2013, and a “sensational” ABC News “Nightline” segment that aired in February suggesting that the regional center has concerning ties to Iran.

“The agency action in denying plaintiff-investors’ form I-526 petitions or delaying action on the form I-526 and/or I-829 petitions is inequitable, arbitrary and capricious, and contrary to law and clear USCIS policy,” the complaint states.

The EB-5 visa provides green cards to foreign citizens who invest more than $500,000 in "job creating" industries within the U.S. American Logistics pools this amount from individual investors to create an equity investment into new commercial enterprises, the complaint says, which it then uses to acquire and upgrade certain assets.

A number of new commercial enterprises and affiliated corporate entities, as well as 15 individual investors from Iran and Vietnam are also named as plaintiffs. Mark S. Zaid, lead attorney for plaintiffs, told Law360 on Tuesday that the 15 individuals represent a sample of the total number of investors involved. USCIS is also named as a defendant in the suit.

According to American Logistics, DHS claimed publicly in the “Nightline” broadcast in February that the agency has cut off applicants through the regional center based on its ties to Iran. The company also pointed to a letter sent by Sen. Grassley to then acting director of U.S. Immigration and Customs Enforcement John Sandweg in December 2013 expressing concerns about the EB-5 immigrant investor program. The senator attached an internal ICE memo that raised questions regarding whether the program was being abused by Iranian government operatives seeking to infiltrate the U.S, the company said.

"The litigation seeks to ensure the U.S. government fairly, timely and without political influence administers the EB-5 visa program,” Mark S. Zaid, lead attorney for plaintiffs, told Law360 on Tuesday. “Instead, our clients have been victimized by false leaks given to the media from the U.S. government that have inappropriately impacted the processing of a very important program that benefits our country.”

The complaint is seeking declaratory and injunctive relief under the Administrative Procedures Act.

A spokeswoman for the U.S. Department of Justice declined to comment.

The plaintiffs are represented by Bradley P. Moss, Mark S. Zaid of Mark S. Zaid PC.

Counsel information for defendants was not immediately available.

The case is American Logistics International LLC et al. v. Department of Homeland Security et al., case number 1:15-cv-00682, in the U.S. District Court for the District of Columbia."