EB5 Investors Magazine Volume 7, Issue 2 | Page 71

TOP LITIGATION AT TORNEYS JONATHAN D. WASDEN WASDEN BANIAS IMMIGRATION LITIGATION Jonathan D. Wasde n is an administrative procedures act (APA) litigation attorney, focusing on business immigration issues. His practice combines expertise in the Immigration and Nationality Act, Administrative Procedures Act, Separation of Powers Doctrine, and Federal Rules of Civil Procedure. He began his legal career as a trial attorney in the U.S. Air Force. He then joined the U.S. Department of Justice, where he defended immigration regulations and decisions under the APA. His last position in government was with the Administrative Appeals Office, focusing on consultation and litigation on employment-based legal issues. Wasden now works in private practice, consulting with clients on strategies to overcome immigration denials and appealing cases in federal court under the APA. WHAT TRENDS ARE YOU SEEING WHEN IT COMES TO EB-5 LITIGATION? ANY IMPACT FROM THE NEW REGULATIONS? individual petition denials and delays of adjudications. The recent policy memo that changes the way the agency processes the Form I-526 will drive both facial and individual attacks in court. The agency failed to consider the impact of redeployment of funds when crafting this new rule, which makes it vulnerable in court. In the short term, individual investors will need to challenge the agency in court to contest the delays caused by this memo. WHAT HAVE BEEN YOUR MOST IMPACTFUL LITIGATION CASES, AND WHY? USCIS is trying to damage legal immigration by delaying the processing of applications. This inexplicable increase in processing times has led to my partner, Brad Banias, and I to challenging more than 50 EB-5 delays in the past three months alone. The agency has typically sought to settle these cases by adjudicating the petitions, usually faster than 60 days. Clients are getting their approvals several years faster than published wait times. I expect the delays to continue, and that clients’ only real option is to fight in court. There will undoubtedly be both facial challenges to agency policy and regulations as well as an increase in litigation on EB5INVESTORS.COM 71