As U.S.-China Tensions Mount, EB-5 Suit Reflects Ballooning “RIA” Battle With USCIS

As U.S.-China Tensions Mount, EB-5 Suit Reflects Ballooning “RIA” Battle With USCIS

By Mona Shah, Esq. and Rebecca S. Singh, Esq.

Amid deflating China-U.S. relations after the downing of a spy balloon by an American jet, EB-5 stakeholders are eyeing litigation from Chinese nationals on the EB-5 Reform and Integrity Act (“RIA”)’s interpretation by U.S. Citizenship and Immigration Services (“USCIS”) that could be a defining moment in the post-Behring Regional Center ruling world.

In our recent overview of what we are expecting to see in the world of EB-5 for 2023, we briefly mentioned this lawsuit, which is being brought against USCIS by investors from China who (like Behring before them) believe that USCIS has misinterpreted the RIA—perhaps deliberately. The plaintiffs claim in the suit that USCIS aims to make the recertification process more difficult for regional centers.

The jury is out as to whether or not this litigation will move forward, given the current political climate!

A consensus opinion is that if this lawsuit hits a wall, others should make further inroads, owing to the agency’s continual misinterpretation and implementation of the RIA. Notwithstanding this, insiders believe this litigation may have legs, particularly when one considers USCIS’s abject failure to mitigate substantial delays.


Filed on January 13,2023, the lawsuit—fronted by Delaware Valley Regional Center, LLC (“DVRC”) in Philadelphia—alleges that USCIS’s interpretation of the RIA was “unlawful, arbitrary, and capricious.” Though the sentiment is hardly novel, the mere presence of yet another lawsuit suggests that the beleaguered USCIS, in its interpretation of the RIA, has made no small mistake. As such, this will undoubtedly not be the final litigation on the subject.

Plaintiffs DVRC, DVRC SEPTA II, LP, and the involved Chinese nationals (Wenjun Wang, Jialun Wang, and Cuijuan Liu), also name the U.S. Department of Homeland Security (“DHS”) as a defendant. In addition, the suit name-drops DHS and USCIS’s top officials, DHS Secretary Alejandro Mayorkas and USCIS Director Ur M. Jaddou, as complicit in the controversy.

What sets this particular lawsuit apart … is its focus on infrastructure.

What sets this particular lawsuit apart from the Behring rollercoaster of 2022 is its focus on infrastructure, a sector purportedly earmarked by USCIS for accelerated adjudication—with infrastructure-project investors supposedly given precedence over those in other industries. In theory, that all seems well and good, but in practice, USCIS has mucked this one up again.

Case in point: With only 10,000 visas per year available overall, competition is fierce. Citing the fact that “7.1% of all visas are for the EB-5 program,” William Gresser, President and Founder of EB-5 New York State, LLC, and Vice President of Invest in the USA (“IIUSA”), clarified in a recent Mona Shah & Associates Global podcast that “there are three categories of investments that enable or entitle an investor to one of these reserved visas. They could be in a rural area or a high unemployment area or outside of any area in an infrastructure project.”

In the reserved-visa category, the numbers add up, per Gresser, to 20% of all visas, or about 2,000 a year, allocated for rural projects; 10% (about 1,000) for high unemployment areas; and 2% (i.e., 200) for infrastructure projects “regardless of where they’re located.” So even though the slim number of infrastructure-related visas is highly desirable and should be prioritized, the investors vying for them clearly are not given enough thought.

“[The three types of investments earmarked for reserved visas] could be in a rural area or a high unemployment area or outside of any area in an infrastructure project.” —William Gresser, President and Founder of EB-5 New York State, LLC, and Vice President of IIUSA

The suit puts such sentiments front and center: “The RIA provides that, during each fiscal year, a limited number of visas ‘shall be reserved’ … for qualified EB-5 investors who ‘invest in infrastructure projects.’” Remember: Reserved visas often ensure a shorter wait time for adjudication, as the investment in infrastructure is so crucial to the U.S. economy. In this vein, the plaintiffs argue that the RIA clearly states that these visas shall be reserved for infrastructure projects whether they are filed or already approved, and that USCIS and DHS have interpreted this to mean that only business plans filed via the “F” form (post-RIA)—i.e., not ones that were already approved—are eligible for these reserved visas despite clear language to the contrary. The investors have been waiting for anywhere from 5 to 6 years for adjudication, and now justifiably fear that USCIS’s recent decisions will push them even further back in line. They are asking that USCIS overturn its existing policy on reserved visas and prioritize older investors.

Focusing on transit, DVRC backs infrastructure improvements on the Pennsylvania Turnpike and the Southeastern Pennsylvania Transportation Authority (“SEPTA”), including the SEPTA Rebuilding for the Future Project, a public-transit improvement project that aims to deliver safe and reliable public transit service in order to contribute to the region’s “economic vitality, sustainability, and enhanced quality of life.” It is impossible to downplay the importance of DVRC not only to the economy and community of Pennsylvania, but also to the rest of the United States, whose infrastructure is long overdue for a rehaul.

Frankly, it serves no one’s best interest to dam up the process; USCIS should know that by now. Maybe this new litigation will provide a much-needed lesson learned at a time when two world powers are still simmering over aerial espionage.

That lesson should be just enough to pop USCIS’s inflated sense of its interpretation’s worth.

Aaron Muller and Simon Butler also contributed to this article.