A key filing before the U.S. Supreme Court will shed more light on immigration petitions initially approved but later rejected by the United States Citizenship and Immigration Services (USCIS).
The American Immigrant Investor Alliance (AIIA), the American Lending Center Holdings Inc. (ALC), and RC Hobbs Companies jointly filed an amicus brief before the U.S. High Court claiming the agency is using a legal loophole to avoid judicial review of its EB-5 decisions. They filed this legal brief to provide information for an ongoing case that this court will start reviewing in October.
The EB-5 visa-focused organization, ALC, and RC Hobbs claim the USCIS’s reasoning negatively affects EB-5 visas and other employment-based immigrants.
AIIA explained in their blog that immigrant investors can seek a federal court for a petition denied by the USCIS under current law. However, they said the agency has found a loophole that states that approved but later revoked employment-based visa requests cannot be legally challenged.
“USCIS argues that such revocations fall under a category of decisions considered ‘discretionary’ in immigration matters. If accepted by the courts to fall within 8 U.S.C. [U.S. Code Unannotated Title 8. Aliens and Nationality § 1252. Judicial review of orders of removal] § 1252(a)(2)(B)(ii), this type of decision is immune from judicial review.”
Yiran Cheng, AIIA Head of Communications, adds: “AIIA firmly believes that EB-5 investors should have the right to appeal USCIS’s adjudication decisions in court, and we cannot lose this right just because USCIS tries to bypass years of administrative practice through a loophole. This is why the EB-5 community must band together in front of the Supreme Court and consolidate our rights through this case.”
Meanwhile, John Shen, CEO of ALC, states: “We support this Amicus Brief because the judicial review in the federal courts often serves as a last resort after an immigrant petition is wrongfully denied. Over the years, we have seen many problems, and lawsuits against USCIS have ended up as the only solution. It is critical to make this option always available to those petitioners who have exhausted all administrative remedies.”
USCIS’s reasoning is already under scrutiny by the U.S. Supreme Court
Litigation has emerged as a reliable tool in the immigration landscape to compel the USCIS to address denied petitions, prolonged application delays, and a growing backlog. Compared with conventional agency timelines, it is effective in speeding the review of these situations.
However, the USCIS reasoning limits the litigation options for EB-5 and other employment-based visa applicants to contest an agency decision.
The amicus, or “friend of the court,” is a legal brief that provides information and guidance about the legal consequences of a situation or practice. It was filed to contribute advice and information about the USCIS’s position to the U.S. High Court when it hears the appeal of petitioner Amina Bouarfa against the agency and the Department of Homeland Security regarding a rejected I-130 form. Their request was initially approved in 2015 but revoked two years later due to the agency’s alleged discovery of additional evidence that led to its denial.
The U.S. High Court agreed to hear this appeal during the October 2024-2025 term, which starts on Oct. 7. “AIIA’s brief is the only amicus brief representing EB-5 investors at the Supreme Court in this case,” the organization said. Oral arguments are expected in the Fall.
The brief also addresses the current discrepancies in how federal immigration courts interpret the USCIS’s argument. Some circuit courts have supported the agency, while others have opposed it.
Other organizations have filed amicus related to the USCIS “loophole” about the Bouarfa scheduled hearing, including the Northwest Immigrant Rights Project, National Immigration Litigation Alliance, The American Civil Liberties Union and the ACLU of Florida, and Century American Regional Center.
DISCLAIMER: The views expressed in this article are solely the views of the author and do not necessarily represent the views of the publisher, its employees. or its affiliates. The information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public; do not include confidential information in your question.
