Public Comments

Expert Affidavit on EB-5 Investors in Wang v. Pompeo

On July 25, 2018, the law firm Kurzban, Kurzban, Weinger, Tetzeli and Pratt, P.A. filed a complaint and a motion for a preliminary injunction in the U.S. District Court for the District of Columbia. Brought on behalf of a group of more than 450 Chinese immigrants and their families, the lawsuit seeks to stop the Department of State’s unlawful practice of counting spouses and minor children against the quota for foreign investors under the employment-based fifth preference (EB-5) category.

This expert affidavit — which is cited several times in the motion for a preliminary injunction — outlines how this policy has reduced the flow of foreign investors and influenced the wait times for them. By counting spouses and children against the EB-5 limit of about 10,000 green cards, the State Department has effectively reduced the quota for investors by almost two thirds. Rather than the full 10,000 going to investors, the government provided green cards to only about 3,500 investors in Fiscal Year 2017.

As a result of the policy, Chinese immigrant investors applying in FY 2018 will have to wait almost 16 years to receive permanent residence. About half of their children will reach adulthood during this time, which will cause them to “age out” (i.e. permanently lose their eligibility for green cards through their parents’ investments). Many have already had children age out. The lawsuit would seek to protect the remaining children from losing their opportunity to immigrate with their parents.

The signed and notarized affidavit can be found here, the motion for preliminary injunction here, and the complaint here.

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David Bier is an immigration policy analyst at the Cato Institute in Washington, D.C.