New Lawsuit Would Increase Legal Immigration

A prominent law firm—Kurzban, Kurzban, Weinger, Tetzeli and Pratt, P.A.—filed a lawsuit Wednesday that has the potential to reshape legal immigration in a significant way. I submitted an expert affidavit in support of the lawsuit, which the lawyers cite in their motion for a preliminary injunction. The suit challenges the government’s unlawful practice of counting spouses and minor children against the green card limit for EB-5 investors—an issue I have written extensively about in prior posts.  

The EB-5 program allows almost 10,000 foreign nationals to receive permanent residence (i.e. a green card) if they invest up to $1 million in a new business that creates 10 jobs. In fiscal year 2014, the government announced that investors reached the annual quota for the first time, and a large backlog has developed. However, the government has chosen to reduce the quota by the number of spouses and children of the investors.

As Table 1 shows, 64.4 percent of those who received permanent residence under the program from 2014 to 2017 were the spouses and children of the investors. Thus, this practice has effectively reduced the quota for investors by almost two thirds.

Table 1: EB-5 Investors, Spouses, and Children Receiving Legal Permanent Residence

Sources: I-526 Principals and derivatives from Department of Homeland Security, 2014, 2015, 2016, 2017; *2017 derivative-primary shares estimated based on the average during the prior three years

As outlined in the complaint and motion for a preliminary injunction, this practice has no basis in law. Subsection (b)(5) of section 203 of the Immigration and Nationality Act specifies:

Visas [i.e. green cards] shall be made available, in a number not to exceed 7.1 percent [i.e. 9,940] of such worldwide level [i.e. 140,000], to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise….

Subsection (b)(5) provides no green cards whatsoever to spouses and children of investors. This means that all of those visas should be available to the investors themselves. Only later in a separate provision—subsection (d) of section 203—are green cards provided for spouses and minor children of those immigrants:

A spouse or child. . . shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

Nothing in this provision applies the EB-5 cap under subsection (b)(5) or any other cap to the spouses and minor children. The government cannot simply create a quota where Congress has not provided one. Indeed, as I’ve written before, members of Congress in 1990—when the EB-5 program was created—explicitly envisioned spouses and children not counting against the quota. They made exact predictions of how much investment would be made based on the belief that fully 10,000 investors would enter under the new law.

Not only that, but the requirement that spouses and children receive the “same order of consideration” requires that they not be subject to the cap. The law defines “order of consideration” as “immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition on behalf each such immigrant is filed…” In other words, the line is entirely determined by the date when the principal applicants—the investors—file their petitions “under subsection (b)”. The derivatives—spouses and minor children—are not part of the “order” at all. They get the same spot in line as their spouse or parent.

Obviously, this lawsuit would be a big win for investors and their families if it succeeds. Based on my calculations in my affidavit, nearly half of those involved in this lawsuit alone will have children reach adulthood during this time and lose their eligibility. New applicants applying this year face nearly 16 years to wait if they applied this year, meaning that anyone with a child over the age of 5 will never be able to immigrate.

As importantly, this legal analysis applies with equal force to all the other major immigration categories—family-sponsored, employer-sponsored, and diversity lottery winners—so a good outcome in this case would set a precedent that immigrants in those categories could use to have their spouses and children excluded from the quotas as well. This outcome would immediately boost immigration levels by about 40 percent, and over time, as new immigrants enter and are able to sponsor their parents after becoming citizens, this share would grow even further.