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4850-3102-9812, v. 1
1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
________________________________________...
4850-3102-9812, v. 1
2
Navy Pier, LLC for the purposes of the EB-5 program. The purpose of NYIF Ironstate
Navy Pier, LLC i...
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3
11. Plaintiff, Nan Wang, is a 47-year-old Chinese national residing in Jiangxi Province,
China.
12....
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rights and other legal relations of any interested party seeking such declaration, whether
or not f...
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risk” for the purpose of generating a return, and that the mere intent to invest is not
sufficient....
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has fulfilled the EB-5 requirements- i.e. has invested, maintained the investment at risk,
and the ...
4850-3102-9812, v. 1
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29. The investment into NYIF Ironstate Navy Pier, LLC is structured so that an investor
whose I-526...
4850-3102-9812, v. 1
8
40. Thus, the approval on one investor’s I-526 petition indicates USCIS’s approval of the
underlyin...
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9
52. Plaintiff, Ji Sook Ham, filed an I-526 petition based on that investment with Defendant
USCIS o...
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63. Plaintiff, Nan Wang, made an investment of $500,000 into NYIF Ironstate Navy Pier,
LLC, with t...
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11
74. The longer it takes for the investor Plaintiffs’ I-526 petitions to be processed, the longer
t...
4850-3102-9812, v. 1
12
86. On information and belief, the Immigrant Investor Program Office has the authority to
hire per...
4850-3102-9812, v. 1
13
96. USCIS has the ability to generate fee income and allocate sufficient resources to meet its
own...
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14
103. Defendants are required by their own regulations to adjudicate and issue a written
decision o...
4850-3102-9812, v. 1
15
PRAYER FOR RELIEF
113. WHEREFORE, in view of the arguments and authority noted herein, Plaintiffs
...
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NEW YORK IMMIGRATION FUND, LLC et al v. JOHNSON (USCIS EB-5) et al, No. 16-cv-05469 (S.D. NY 7-8-16) I-526 Mandamus Complaint

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NEW YORK IMMIGRATION FUND, LLC et al v. JOHNSON (USCIS EB-5) et al, No. 16-cv-05469 (S.D. NY 7-8-16) I-526 Mandamus Complaint

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NEW YORK IMMIGRATION FUND, LLC et al v. JOHNSON (USCIS EB-5) et al, No. 16-cv-05469 (S.D. NY 7-8-16) I-526 Mandamus Complaint

  1. 1. 4850-3102-9812, v. 1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ________________________________________________x NEW YORK IMMIGRATION FUND, LLC; Jingyong ) CAI; Ruifen CHEN; Yizhuo FENG; Ji Sook HAM; ) Jihee LEE; Seung Beum LEE; Bin LIANG; Nan ) WANG; Ruomeng ZHANG; ) ) Plaintiffs ) ) v. ) Docket No.:_______ ) Jeh JOHNSON, Secretary of the United States ) Department of Homeland Security; Leon RODRIGUEZ, ) Judge: ___________ Director, United States Citizenship and Immigration ) Services; Nicholas COLUCCI, Chief, Immigrant Investor ) Agency No.s: Program Office, United States Citicizenship and ) WAC1490369372 Immigration Services; UNITED STATES CITIZENSHIP) WAC1490386375 AND IMMIGRATION SERVICES; ) WAC1590165402 ) WAC1490384690 ) WAC1490348918 ) WAC1490415855 ) WAC1590117282 ) WAC1490322206 Defendants. ) WAC1490328893 ________________________________________________x PLAINTIFF’S COMPLAINT FOR WRIT IN THE NATURE OF MANDAMUS Plaintiffs, by and through their undersigned attorneys, commence this action against the above- named Defendants, and state as follows: 1. Plaintiffs are six foreign investors and a U.S. company that has been designated as an approved regional center by the United States Citizenship and Immigration Services (USCIS). The individual named Plaintiffs have all invested $500,000 each into NYIF Ironstate Navy Pier, LLC for the purpose of making a qualifying investment under 8 U.S.C. § 203(b)(5) (commonly referred to as the EB-5 visa category or EB-5 program) which allows a foreign investor who makes a qualifying investment into a U.S. company, and which investment results in the creation of at least ten jobs for U.S. workers, to qualify for an immigrant visa and subsequent lawful permanent resident status in the U.S. (i.e. a “green card”). The Plaintiff Regional Center is the sponsor of NYIF Ironstate Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 1 of 15
  2. 2. 4850-3102-9812, v. 1 2 Navy Pier, LLC for the purposes of the EB-5 program. The purpose of NYIF Ironstate Navy Pier, LLC is to provide funding, derived from foreign investment under the EB-5 program, to a job creating project- the development and transformation of a 3.94 acre decommissioned U.S. Naval Base into a 512,505 SF mixed-use residential and retail complex with a parking garage in Staten Island, New York. The investors’ I-526 petitions for an immigrant visa have been delayed significantly beyond USCIS published processing times- and in some cases as much as two years- to the detriment of the regional center, the investors, and the job creating project that the investors and the regional center seek to fund. The investors have made an at-risk investment of $500,000 each in the interest of pursuing their immigration to the U.S., and face ongoing financial risks and the harms that come from the ongoing uncertainty about their immigration status as a result of the agency’s delay in processing the regional center application and their immigrant visa petitions. The delay is also harmful to the goals of the EB-5 program- promoting domestic job creation through the promotion of foreign investment into the U.S. 2. This action is brought against the Defendants to compel action on six unreasonably delayed I-526 petitions for alien entrepreneur filed by the individual Plaintiffs on the basis of their investments into NYIF Ironstate Navy Pier, LLC. PARTIES 3. Plaintiff, New York Immigration Fund, LLC (“NYIF”) is New York limited liability Company with offices at 267 Broadway, 2nd Floor, New York, NY 10007. NYIF was designated under the EB-5 program as a USCIS approved regional center on July 8, 2010. 4. Plaintiff, Jingyong Cai, is a 26-year-old Chinese national, currently residing in China. 5. Plaintiff, Ruifen Chen, is a 47-year-old Chinese national, residing in Guangdong Province, China. 6. Plaintiff, Yizhuo Feng, is a 26-year-old national of China. She currently resides in China. 7. Plaintiff, Ji Sook Ham, is a native of South Korea, living in South Korea. 8. Plaintiff, Jihee Lee, is a native of South Korea, residing in South Korea. 9. Plaintiff, Seung Beum Lee, is a native of South Korea, temporarily residing in St Louis, Missouri. 10. Plaintiff Bin Liang, is a Chinese national, currently residing in Guangzhou Province, China. Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 2 of 15
  3. 3. 4850-3102-9812, v. 1 3 11. Plaintiff, Nan Wang, is a 47-year-old Chinese national residing in Jiangxi Province, China. 12. Plaintiff, Ruomeng Zhang, is a 28-year-old Chinese national, currently residing in Beijing, China. 13. Defendant, Jeh Johnson, is the Secretary of the United States Department of Homeland Security, with responsibility for the administration of applicable laws and statutes governing immigration and naturalization. He is generally charged with enforcement of the Immigration and Nationality Act, and is further authorized to delegate such powers and authority to subordinate employees of the Department of Homeland Security. More specifically, the Secretary, is responsible for the adjudication of applications to amend regional center designations and petitions for alien entrepreneurs. 14. Defendant, Leon Rodriguez, is the Director of USCIS, and is responsible for the administration of immigration and naturalization adjudication functions and establishing immigration services policies and priorities. These functions include: adjudication of immigrant visa petitions and applications for adjustment of status; adjudication of naturalization petitions; adjudication of asylum and refugee applications; adjudications performed at the service centers, and all other adjudications performed by the USCIS. 15. Defendant, Nicholas Colluci, is the Chief of the USCIS Immigrant Investor Program Office, which is directly charged with responsibility for processing applications and petitions under the EB-5 program, and specifically applications to amend regional center designations and petitions for alien entrepreneurs. 16. Defendant, U.S. Citizenship and Immigration Services (“USCIS”) (formerly, the Immigration and Naturalization Service) is an agency of the federal government within the Department of Homeland Security (formerly, within the U.S. Department of Justice) and is responsible for the administration of laws and statutes governing immigration and naturalization. USCIS has an office at 26 Federal Plaza, New York, New York. JURISDICTION 17. Jurisdiction in this case is proper under 28 U.S.C. §§1331 and 1361, 5 U.S.C. §701 et. seq., and 28 U.S.C. §2201 et. seq. Relief is requested pursuant to said statutes. Specifically, this Court has jurisdiction over this action pursuant to 28 U.S.C. §1331, which provides that “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States,” and under 28 U.S.C. §1361, which provides the district court with “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the Plaintiff.” Further, the Declaratory Judgment Act, 28 U.S.C. §2201, provides that: “[i]n a case of actual controversy within its jurisdiction… any court of the United States, upon the filing of an appropriate pleading, may declare the Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 3 of 15
  4. 4. 4850-3102-9812, v. 1 4 rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” Review is also warranted and relief sought under the Administrative Procedure Act 5 U.S.C. §701 et seq., § 702, §706(1) and §555(b). VENUE 18. Venue properly lies within the Southern District of New York pursuant to 28 U.S.C. §1391(e), in that this is an action against officers and agencies of the United States in their official capacities, brought in the District where a Defendant in the action resides. Further, Plaintiff NYIF, is a resident of New York, New York, within the geographic territory of the Southern District of New York. EAJA FEES 19. In connection with the claim for attorneys’ fees and costs, under the Equal Access to Justice Act 28 U.S.C. §2412, Plaintiffs seeks to recover costs and attorneys’ fees incurred in bringing this action. Plaintiffs have retained the law firm of Klasko Immigration Law Partners, LLP to represent them in this action. Plaintiffs are obligated to pay reasonable attorneys’ fees and costs incurred in the prosecution of this cause. EXHAUSTION OF REMEDIES 20. Plaintiffs have exhausted their administrative remedies. Plaintiffs have made inquiries with defendants concerning the status of their petitions, all to no avail. No other administrative remedy is available to Plaintiffs. BACKGROUND ON THE EB-5 PROGRAM 21. In 1990, Congress amended the Immigration and Nationality Act of 1965, allocating, inter alia, 10,000 immigrant visas per year to foreign nationals seeking Lawful Permanent Resident (“LPR”) status on the basis of their capital investments in the United States. See generally the Immigration Act of 1990, Pub. L. No. 101-649, § 121(b)(5), 104 Stat. 4978 (1990) (codified at 8 U.S.C. § 1153(b)(5)). Pursuant to the so-called “Immigrant Investor Program,” foreign nationals may be eligible for an employment-based, fifth preference (“EB-5”) immigrant visa if they have invested, or are actively in the process of investing, $1 million (or $500,000 in a high unemployment or rural area) in a qualifying New Commercial Enterprise (“NCE”), and that investment results in the creation of at least ten jobs for U.S. Workers. See 8 U.S.C. § 1153(b)(5)(A)-(D); see also 8 C.F.R § 204.6(a)-(j). The EB-5 regulations further provide that, in order to qualify as an “investment” in the EB-5 Program, foreign nationals must actually place their capital “at Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 4 of 15
  5. 5. 4850-3102-9812, v. 1 5 risk” for the purpose of generating a return, and that the mere intent to invest is not sufficient. See 8 C.F.R. § 204.6(j)(2). The purpose of this program was to promote foreign direct investment into, and job creation within, the U.S. 22. In 1993, Congress created the Immigrant Investor Pilot Program (“Pilot Program”) through the enactment of various provisions of section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act. See Pub. L. No. 102-395, § 601, 106 Stat. 1828, 1874 (1992). The Pilot Program allows foreign investors who invest in NCEs affiliated with USCIS (formerly INS) designated regional centers to meet the 10-jobs-per investor by counting indirect jobs- i.e. jobs that created outside of the NCE. Further, in addition to not being restricted to only counting employees of the NCE, investors under the Pilot Program are allowed to use any valid statistical forecasting model to demonstrate job creation. See § 601(a)-(c) of Pub. L. No. 102-395; see also 8 C.F.R. § 204.6(e), (j)(4)(iii), (m)(7)(ii). The intent of these reforms was, again, to incentivize and promote foreign investment into, and job creation within, the U.S. 23. Regional center investment projects typically use an economic model, such as the RIMS II Input/Output model, a U.S. government created model, for predicting the job creation resulting from EB-5 investment into a given project. Input/Output models are based on multipliers derived from vase amounts of government data. For every unit of input, the multiplier is applied to derive a number of units of output. For instance, most common in the EB-5 program is the use or construction expenditures as an input. For every $1 million of construction expenditures, X number of jobs are created (the multiplier varies by region, but typically there are 10-12 jobs per $1 million of construction expenditures). The ability to count indirect jobs and use an economic model allows EB-5 funds to be used for types of development projects that would not ordinarily qualify under the non- regional center program due to its requirement of counting only employees of the NCE. Another result of the Pilot Program is that regional centers can aggregate investments from a large number of EB-5 investors in order to finance larger scale projects. 24. In order to become an LPR through both the standard and regional center-model program, a foreign national must initially file with USCIS a Form I-526, Immigrant Petition by Alien Entrepreneur, which, if approved, makes the foreign national eligible to receive an employment-based, fifth preference immigrant visa, see generally 8 U.S.C. § 1153(b)(5). Upon approval of the I-526 Petition, the foreign national must file a Form I-485, Application to Adjust Status (if he or she is located in the United States), or a Form DS- 260, Application for Immigrant Visa and Alien Registration (if he or she is located outside the United States). See generally 8 U.S.C. § 1201 (provisions relating to the issuance of entry documents); 8 U.S.C. § 1255 (provisions relating to adjustment of status). Upon adjustment of status or admission on an EB-5 immigrant visa, the foreign national is granted two-years of conditional permanent resident status, provided that the foreign national is not otherwise ineligible for admission into the United States. See generally 8 U.S.C. § 1182 (provisions relating to excludable aliens). Finally, at the conclusion of the two-year conditional period, the foreign national must file a Form I- 829, Petition to Remove the Conditions on his or her LPR status. If the foreign national Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 5 of 15
  6. 6. 4850-3102-9812, v. 1 6 has fulfilled the EB-5 requirements- i.e. has invested, maintained the investment at risk, and the investment has resulted in the creation of at least ten jobs for U.S workers- then the conditions will be removed and the foreign national will be an unconditional LPR. See generally 8 U.S.C. § 1186b (provisions relating to conditional permanent resident status for certain alien entrepreneurs, spouses, and children). FACTUAL ALLEGATIONS 25. Plaintiff, NYIF was designated under the EB-5 program as a USCIS approved regional center on July 8, 2010. 26. Plaintiff, NYIF, caused the formation of NYIF Ironstate Navy Pier, LLC, an NCE, which would serve as the EB-5 investment vehicle for foreign investors seeking to invest in the Ironstate Navy Pier project and obtain an EB-5 visa (and subsequent conditional, then unconditional, lawful permanent residence in the U.S.). 27. The Ironstate Navy Pier Project involves the development and transformation of 3.94 acres of a decommissioned U.S. Naval Base into a 512,505 SF mixed-use residential and retail complex with a parking garage in Staten Island, New York. The subject property is owned by Homeport I, LLC– a wholly-owned subsidiary of Homeport I Holding LLC (“Holdco”). Holdco, is a special purpose entity formed by Ironstate Holdings, one of the largest privately held real estate development companies in the Northeast. The Project will be divided into two buildings: a) “Building One” will consist of a 5-story plus basement building with a multi-tenanted ground floor retail component, 571 residential units, and a parking garage in the basement; and b) “Building Two” will consist of a separate 5-story plus basement building with a multi-tenanted ground floor retail component, along with additional surface parking. The Project amenities consist of a lobby area in each building, and specifically within Building One: a state-of-the-art fitness center, a private plaza deck with swimming pool, recreational facilities and garden areas, as well as laundry facilities and tenant storage. The 570 rentable apartments (excluding the superintendent’s unit) will operate as an 80/20 rental apartment building, where 20% of the units will be set aside as affordable rentals while the remaining 80% will be initially leased at prevailing market rent. The City of New York is investing approximately $33 million (as part of a massive redevelopment plan for the area) in infrastructure improvements surrounding the Project. The Project is expected to cost approximately $160 million, of which approximately $25 million will come from EB-5 investment into NYIF Ironstate Navy Pier, LLC. 28. According to the Economic Impact Report submitted with Plaintiffs’ I-526 petitions, the construction of the Ironstate Navy Pier Project will result in the creation of approximately 1,453 new, permanent jobs for U.S. workers. As such, the Project more than meets the 10-jobs-per-investor requirement of the EB-5 program, and has a significant economic impact to the local economy. Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 6 of 15
  7. 7. 4850-3102-9812, v. 1 7 29. The investment into NYIF Ironstate Navy Pier, LLC is structured so that an investor whose I-526 petition is denied is entitled to a refund of his or her investment. This refund is guaranteed by the developer or an affiliate of the developer in the case that NYIF Ironstate Navy Pier, LLC cannot provide a refund. 30. On June 3, 2014, the first investor I-526 petition was filed by an investor in NYIF Ironstate Navy Pier, LLC. 31. Each I-526 petition filed by an investor in NYIF Ironstate Navy Pier, LLC contains a section devoted to the investor’s biographical information and source of funds (the investor portion), and a set of template documents relating to the eligibility of the project, including a template cover letter to be used by the investor’s attorney in the preparation if that investor’s I-526 submission (the project portion). 32. The project portion of the I-526 is provided by NYIF to all investors who file I-526 petitions in relation to NYIF Ironstate Navy Pier, LLC, so that all investors can file with the same project documents. The purpose is to ensure consistency in filings. 33. On May 29, 2015- just short of one year after it had been filed- USCIS issued an approval of the first investor’s I-526 petition. 34. On the same day, USCIS issued a notice recalling the approval of that petition. 35. On information and belief, no action has been taken on any I-526 petition for any investor in NYIF Ironstate Navy Pier, LLC since that date. 36. USCIS did not provide a reason or explanation for rescinding the approval. 37. Pursuant to USCIS policy, USCIS will grant deference to the approval of the project elements of an I-526 petition in the course of adjudicating the remaining I-526 petitions for investors in that project, provided the documents are the same, and there have not been material changes, fraud, or obvious mistakes of law or fact in the prior adjudication. 38. This deference policy is similar in nature to the concept of collateral estoppel, and provides a benefit to the parties in ensuring consistent decisions and reducing the burden that would result if USCIS were to re-adjudicate every detail of the project in the course of adjudicating the petitions of multiple investors in a project, who can number in the tens or hundreds for a given project. 39. On information and belief, USCIS groups investor petitions in the course of adjudications, such that a particular team of adjudicators and specialists reviews a given EB-5 project for compliance with program requirements, and then reviews the I-526 petitions of investors making investments into that project so that USCIS does not have to re-adjudicate the project details with every I-526 adjudication. Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 7 of 15
  8. 8. 4850-3102-9812, v. 1 8 40. Thus, the approval on one investor’s I-526 petition indicates USCIS’s approval of the underlying EB-5 investment project for all subsequent investors. 41. Plaintiff, Jingyong Cai, is a 26-year-old Chinese national, currently residing in China. He previously studied at Michigan State University, but has since returned to China. Mr. Cai has already made some preparations to move to the U.S., but needs a decision on his petition to know whether or not he should make career plans in the U.S. or China. 42. Plaintiff, Jingyong Cai, made an investment of $500,000 into NYIF Ironstate Navy Pier, LLC, with the intention of seeking an EB-5 visa for himself. 43. Plaintiff, Jingyong Cai, filed an I-526 petition based on that investment with Defendant USCIS on July 14, 2014 (receipt number WAC1490369372), more than 23 months ago. 44. Plaintiff, Ruifen Chen, is a 47-year-old Chinese national, residing in Huizhou City, Guangdong Province, China. She and her husband have two children, one of whom is now studying in the U.S. on valid F-1 status. However, because there is no non- immigrant visa category that allows a parent of an F-1 student to remain in the U.S. on a long term basis, she is travelling back and forth from China frequently to take care of her child, which causes strain on the family. Mrs. Chen needs a decision on her I-526 petition so she can decide whether to continue her child’s education here or in China. 45. Plaintiff, Ruifen Chen, made an investment of $500,000 into NYIF Ironstate Navy Pier, LLC with the intent of seeking an EB-5 visa for herself and her family. 46. Plaintiff, Ruifen Chen, filed an I-526 petition based on that investment with Defendant USCIS on July 29, 2014 (receipt number WAC1490386375), more than 22 months ago. 47. Plaintiff, Yizhuo Feng, is a 26-year-old national of China. She has studied at Columbia University for two years, but currently resides in China. Mrs. Feng and her husband need a decision on her I-526 petition so they can decide whether to pursue career plans in the U.S. or China. 48. Plaintiff, Yizhuo Feng, made an investment of $500,000 into NYIF Ironstate Navy Pier, LLC, with the intent of seeking an EB-5 visa for her and her family. 49. Plaintiff, Yizhuo Feng, filed an I-526 petition based on that investment with Defendant USCIS on February 10, 2015 (receipt number WAC1590165402), more than 16 months ago. 50. Plaintiff, Ji Sook Ham, is a national of South Korea, currently residing in South Korea. Mrs. Ham needs a decision on her I-526 petition so he can make plans for her children’s education. 51. Plaintiff, Ji Sook Ham, made an investment of $500,000 into NYIF Ironstate Navy Pier, LLC, with the intent of seeking an EB-5 visa for herself and his family. Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 8 of 15
  9. 9. 4850-3102-9812, v. 1 9 52. Plaintiff, Ji Sook Ham, filed an I-526 petition based on that investment with Defendant USCIS on July 28, 2014 (receipt number WAC1490384690), more than 23 months ago. 53. Plaintiff, Jihee Lee, is a national of South Korea. Mrs. Lee needs a decision on her I-526 petition so she can decide whether to pursue career plans in the U.S. or South Korea. 54. Plaintiff, Jihee Lee, made an investment of $500,000 into NYIF Ironstate Navy Pier, LLC, with the intent of seeking an EB-5 visa for herself and her family. 55. Plaintiff, Jihee Lee, filed an I-526 petition based on that investment with Defendant USCIS on June 25, 2014 (receipt number WAC1490348918), more than 24 months ago. 56. Plaintiff, Seung Beum Lee, is a national of South Korea. He graduated from Washington University in St Louis in May 2016. Mr. Lee needs a decision on his I-526 petition so he can decide whether to pursue career plans in the U.S. or South Korea. 57. Plaintiff, Seung Beum Lee, made an investment of $500,000 into NYIF Ironstate Navy Pier, LLC, with the intent of seeking an EB-5 visa for himself. 58. Plaintiff, Seung Beum Lee, filed an I-526 petition based on that investment with Defendant USCIS on August 27, 2014 (receipt number WAC1490415855), more than 22 months ago. 59. Plaintiff, Bin Liang, is a Chinese national, currently residing in Guangzhou Province, China. He and his wife have a 15-year-old son, who they plan to send to the U.S. for high school. Mr. Liang’s wife will need to travel back and forth to take care of their son because they do not have green cards. They need a decision on their I-526 petition to decide whether they will send their son to school in the U.S. or make other plans. 60. Plaintiff, Bin Liang, made an investment of $500,000 into NYIF Ironstate Navy Pier, LLC with the intent of seeking an EB-5 visa for him and his family. 61. Plaintiff, Bin Liang, filed an I-526 petition based on that investment with Defendant USCIS on January 2, 2015 (receipt number WAC1590117282), more than 18 months ago. 62. Plaintiff, Nan Wang, is a 47-year-old Chinese national residing in Jiangxi Province, China. She and her husband have two children, one of whom is already studying in the U.S. in valid F-1 status. Because there is no nonimmigrant visa available to let parents of F-1 students stay in the U.S. on a long term basis, she is travelling back and forth from china to take care of her child, which is putting strain on the family. Mrs. Wang needs a decision on the I-526 petition so she can decide whether to continue to send her child to school in the U.S. or to make other plans. Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 9 of 15
  10. 10. 4850-3102-9812, v. 1 10 63. Plaintiff, Nan Wang, made an investment of $500,000 into NYIF Ironstate Navy Pier, LLC, with the intent of seeking an EB-5 visa for himself. 64. Plaintiff, Nan Wang, filed an I-526 petition based on that investment with Defendant USCIS on June 3, 2014, 2014 (receipt number WAC1490322206), more than 24 months ago. 65. Plaintiff, Ruomeng Zhang, is a 28-year-old Chinese national, currently residing in Beijing, China. Her parents already have green cards since May 2013. However, they both speak poor English, and wish to keep their family together, so they have been travelling back and forth. Ms. Zhang and her family need a decision on her I-526 petition so they can make a decision on whether to stay in the U.S. and buy property here, or move the whole family back to China so they can be together. 66. Plaintiff, Ruomeng Zhang, made an investment of $500,000 into NYIF Ironstate Navy Pier, LLC, with the intent of seeking an EB-5 visa for herself. 67. Plaintiff, Nan Wang, filed an I-526 petition based on that investment with Defendant USCIS on June 9, 2014, 2014 (receipt number WAC1490328893), more than 24 months ago. 68. All of the investor Plaintiffs originally deposited their money in the NYIF Ironstate Navy Pier, LLC escrow account pursuant to the terms of the offering documents. 69. All of the investor Plaintiffs’ funds were released from the escrow account to the account of NYIF Ironstate Navy Pier, LLC, and became property of the Company. The funds, except for a 10% holdback amount, have subsequently been expended on the construction of the Project. 70. As of this date, NYIF Ironstate Navy Pier, LLC has been fully funded with a total of $25 million of EB-5 investments by a total of 50 EB-5 investors. A total of $%22,550,000 has been deployed to the Project. 71. The remaining 10% (approximately) is held in escrow and cannot be deployed to the Project until each investor’s I-526 petition is approved, pursuant to the terms of the offering. 72. Plaintiffs have made multiple inquiries with Defendant USCIS about the status of their petitions, but have received only form responses from USCIS, with no meaningful or case specific information. 73. According to the terms of the NYIF Ironstate Navy Pier, LLC offering, the investor Plaintiffs are entitled to receive a refund of their investments if their I-526 petitions are denied. However, there is no guarantee that funds will be available to provide a refund. Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 10 of 15
  11. 11. 4850-3102-9812, v. 1 11 74. The longer it takes for the investor Plaintiffs’ I-526 petitions to be processed, the longer their money is at risk, and the greater the risk that the project will not have available funds to repay them if their I-526 petitions are denied. 75. NYIF is the Manager of NYIF Ironstate Navy Pier, LLC and, as such, has responsibility for causing NYIF Ironstate Navy Pier, LLC to provide a refund to a denied investor. 76. In addition, the Ironstate Navy Pier Project faces financial uncertainty for as long as the I- 526 petitions are pending, because it does not know if it might be faced with an obligation to repay funds invested by NYIF Ironstate Navy Pier, LLC. It also cannot access the remaining EB-5 funds. 77. The investor Plaintiffs all face harms arising from the uncertainty of their immigration status, which are exacerbated and prolonged by the ongoing delays in adjudicating and their I-526 petitions. 78. Put simply, NYIF Ironstate Navy Pier, LLC the Ironstate Navy Pier Project, and the investor Plaintiffs all need resolution of the pending I-526 petitions so they can plan for the future and run their businesses or plan their lives. 79. According to 8 U.S.C. §1571(b), “[i]t is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, except that a petition for a nonimmigrant visa under section 1184(c) of this title should be processed not later than 30 days after the filing of the petition.” 80. According to information published by Defendant USCIS on December 23, 2014, the average processing time for an I-526 petition was 14.7 months. 81. Since at least 2012, USCIS has stated publicly and regularly at stakeholder meetings and calls that its goal for adjudications is 6 months or less for I-526 petitions. 82. USCIS is primarily a fee supported, and not appropriations supported agency. 83. On information and belief, USCIS, through DHS, is permitted to set filing fees for the applications and petitions it adjudicated, including the I-924 application and I-526 petition. 84. On May 4, 2016 USCIS (through DHS) issued a Notice of Proposed Rulemaking (NPRM), in which it proposed fee increases for almost all types of benefits applications and petitions it adjudicates. That NPRM suggests that USCIS is using EB-5 filing fees to pay for other, non-EB-5 adjudications instead of using EB-5 filing fees to process EB-5 application and petitions in a timely fashion. See 81 Fed. Reg. No. 86. At 26904, et seq. 85. In the NPRM, USCIS states that the average number of employee hours it takes to process an I-526 petition is only 6.5 hours. Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 11 of 15
  12. 12. 4850-3102-9812, v. 1 12 86. On information and belief, the Immigrant Investor Program Office has the authority to hire personnel at rates outside of the normal GS scale in order to attract candidates with the specialized business and economic knowledge and experience that is relevant to EB-5 adjudications. 87. On information and belief, USCIS, through DHS, has the ability to set fees at a level necessary to ensure sufficient resources to hire enough staff to process EB-5 applications and petitions in a timely manner. 88. The filing fee for an I-526 petition is currently $1,500. On information and belief, it is the third most expensive filing fee for a single petition (the first is the I-924 application for regional center designation at $6,230, and the second most expensive is the I-829, at $3,750, both of which are also EB-5 petitions). 89. From the nine investor Plaintiffs, USCIS has received a combined total of $13,500 in filing fee revenue. From all 50 investors in the project, that number would be $75,000, which, on information and belief, could enable USCIS to pay the salary of one federal employee for a year. 90. Plaintiffs have followed all filing procedures, and have submitted complete petitions. 91. On information and belief, Plaintiffs are, and have been since the time of filing, eligible to have their petitions approved. CLAIMS 92. Defendants’ refusal to act in this case is, as a matter of law, arbitrary and not in accordance with the law. Defendants willfully, and unreasonably, have delayed in and have refused to, adjudicate Plaintiffs’ petitions, thereby depriving them of the right to a decision on their status and the peace of mind to which they are entitled. 93. Plaintiffs have fully complied with all applicable laws, regulations and procedures, and have provided Defendants with all information and documents required or requested in conjunction with their application and petitions. 94. Defendants’ delay in adjudicating the investor Plaintiffs’ I-526 petitions is unreasonable and unjustified. 95. Defendants’ approval of one investor’s I-526 petition for this project, and therefore their approval of the project portion of all the investor’s I-526 petitions, makes the delay in adjudicating the Plaintiffs’ I-526 petitions even more arbitrary and unreasonable. Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 12 of 15
  13. 13. 4850-3102-9812, v. 1 13 96. USCIS has the ability to generate fee income and allocate sufficient resources to meet its own case processing goals and the time frame specified by Congress for the adjudication of immigrant benefits, but Defendants continue to unreasonably fail to do so. 97. Regardless of resources, Defendants’ failure to adjudicate Plaintiffs’ application and petition within normal processing times is unreasonable. 98. The EB-5 program was intended by Congress to stimulate job creation in the U.S., and USCIS’ failure to adjudicate EB-5 petitions within the time frame specified by Congress and the goals stated by the agency itself frustrates the goals of the program, and makes the delay in the adjudications of Plaintiffs’ application and petitions even more unreasonable. 99. USCIS has offered no reason for the delay, and has not indicated a time frame in which a response can be expected, and has only provided automated form responses to inquiries, all of which undermine confidence in its intent to adjudicate the application and petitions within a reasonable time absent court intervention. 100. Plaintiffs have been greatly damaged by the failure of Defendants to act in accordance with their duties under the law and adjudicate their applications. a. Investor Plaintiffs have been damaged in that their funds remain at risk, with no indication of whether they will be able to obtain the immigration benefit that motivated them to make the investment. b. Investor Plaintiffs have been damaged in that they face ongoing uncertainty about their future, which hinders their ability to make career, family, and life choices, and deprives them of the peace of mind of knowing where their futures will be. c. Plaintiff, NYIF, has been harmed by its inability to provide its investors or the Ironstate Navy Pier Project with certainty with regards to whether or not the project will be approved or the project will have an obligation to return investor funds prematurely. d. Plaintiff, NYIF, may suffer reputational damage by virtue of speculation as to why the I-526 petitions have not been approved despite being well beyond normal processing times. This reputational damage may discourage potential EB-5 investors from investing in other projects being sponsored by NYIF. 101. The harm suffered by Plaintiffs is ongoing, and can be resolved only through the adjudication of their applications. 102. Plaintiffs have a statutory right to the adjudication of their petitions pursuant to the INA and governing regulations at 8 C.F.R. § 204.6. Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 13 of 15
  14. 14. 4850-3102-9812, v. 1 14 103. Defendants are required by their own regulations to adjudicate and issue a written decision on Plaintiffs’ petitions. See 8 C.F.R. § 204.6(k), (m)(5). 104. Plaintiffs’ payment of fees and Defendants’ acceptance of those fees for processing Plaintiffs’ application and petitions represents a quid pro quo whereby Defendants are accepting a fee in exchange for providing a service- namely the processing and adjudication of Plaintiffs’ application and petitions. 105. In the process of adjudicating an I-526 petition, on information and belief, Defendants are required to complete certain security checks. However, on information and belief, none of these should cause a significant delay in adjudication. 106. According to a report published by one of Defendants’ agencies, the FBI name check is concluded within one month for 94% of applicants, and within six months for 99% of applicants. However, according to a recent USCIS press release, the backlog of FBI name checks has been eliminated, and there remain NO cases in which an FBI name check has been pending for more than six months. All other security checks performed in conjunction with Defendants’ adjudication of an application or petition generally take less than a month to complete, and some take as little as a day or two. See Office of the Inspector General, “A Review of U.S. Citizenship and Immigration Service’s Alien Security Checks,” November, 2005; USCIS Fact Sheet “Immigration Security Checks- How and Why the Process Works,” April 25, 2006. 107. Defendant USCIS is an administrative agency subject to 5 U.S.C. § 555(b), which provides “[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.” (Emphasis added). 108. Completing security checks and adjudicating I-526 petitions are purely routine and ministerial duties performed on a daily basis by Defendants. 109. Except under very specific provisions of law that are not applicable here, Defendants lack the legal authority or discretion to abstain from processing applications or petitions for immigration benefits or completing security checks. 110. Thus the completion of security checks and adjudication of I-526 petitions are clearly subject to the requirements of 5 U.S.C. § 555(b), and Defendants have a legal duty to complete them within a reasonable time. 111. Because Defendants have a purely ministerial duty under the law to adjudicate Plaintiffs’ application and petitions within a reasonable time, and have utterly failed, or refused, to do so, a Writ of Mandamus is proper to compel Defendants to perform their duty to adjudicate Plaintiffs’ application and petitions to avoid further harm to Plaintiffs. 112. For the same reasons, relief under the A.P.A. is warranted. Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 14 of 15
  15. 15. 4850-3102-9812, v. 1 15 PRAYER FOR RELIEF 113. WHEREFORE, in view of the arguments and authority noted herein, Plaintiffs respectfully pray that the Defendants be cited to appear herein and that, upon due consideration, the Court enter an order: a. granting Plaintiffs a Writ of Mandamus and/or an order under the A.P.A. requiring Defendants to adjudicate the investor Plaintiffs’ I-526 petitions within 30 days; b. awarding Plaintiffs reasonable attorney’s fees; and c. granting such other relief at law and in equity as justice may require. d. It is further requested that the Court retain jurisdiction over this matter to ensure Defendants’ compliance with this Court’s order. Respectfully submitted, s/ Daniel B. Lundy, Esq. Klasko Immigration Law Partners, LLP 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 825-8600 (215) 825-8699 (fax) dlundy@klaskolaw.com Case 1:16-cv-05469 Document 1 Filed 07/08/16 Page 15 of 15

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