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IMMIGRATION APRIL 15, 2022 | The Indian Eye 45

ed version of the law, however, as- cross-chargeability based on birth of states. Thus, to take advantage of the provision, and sections 1361 and 1651
suming no previous time out of status a spouse or (under certain rare cir- lower $800,000 threshold, the invest- of such title, no court shall have juris-
or unauthorized employment since cumstances) parents elsewhere, how- ment projects of Regional Centers diction to review a determination un-
the last time that our hypothetical ever, regional-center EB-5 numbers and others may need to be located der this paragraph until the regional
L-1 nonimmigrant was admitted to will not be available without a priori- in different kinds of places than they center, its associated entities, or the
the United States, there would be ty date much earlier than concurrent previously were. alien investor has exhausted all ad-
a window of 180 days after the L-1 filing would produce: the Dates for The new law also indicates, at ministrative appeals.
extension denial when the nonimmi- Filing cutoff as of April 2022 is De- section 203(b)(5)(E)(ii)(I) of the That is, one will be required to
grant could utilize the EB-5 process cember 15, 2015. Thus, concurrent INA as added by section 103(b)(1) first appeal to the AAO before going
to remain in the United States. If the filing will not be possible for such in- of Division BB (at page 1027 of the to federal court. This is in contrast
requisite investment were made and vestors born in China and pursuing PDF version of the bill) that in the to the general rule set out by the Su-
an I-526 petition were concurrent- a regional center investment. It will, regional-center context, DHS “shall preme Court’s decision in Darby v.
ly filed with an I-485 application for however, still be possible for them in prioritize the processing and adjudi- Cisneros, 509 U.S. 137 (1993), which

adjustment of status within that time, connection with a direct investment. cation of petitions for rural areas”. held that under 5 U.S.C. § 704, judi-
then the I-485 application would be The Act raises the minimum Even true areas of high unemploy- cial review of an agency action ordi-

protected by amended INA § 245(k). required investment thresholds, so ment in an urban or suburban con- narily need not await an administra-
(According to USCIS guidance, it taking advantage of this new oppor- text, therefore, may be disfavored tive appeal of that action unless the
would also be necessary for the ap- tunity will require a larger investment under the amended program relative agency has both required an appeal
plicant to refrain from unauthorized than was necessary in the past. For to rural areas. and made the administrative action
employment after filing and before investments in Targeted Employment inoperative pending that appeal.
receiving employment authoriza- Areas (that is, either rural areas or one other, more esoteric portion However, Darby specifically recog-
tion; the legal correctness, or not, of areas of high unemployment) or par- nized that an exception exists when
that guidance is outside the scope of ticular infrastructure projects defined of the new law, which may be of an appeal is “expressly required by
this blog post.) The applicant would by a new provision in the bill, a min- interest primarily to attorneys statute,” and Congress has chosen
then be protected from the accrual of imum amount of $800,000 is now re- to create such an express require-
unlawful presence by the pendency quired, a significant increase over the (like this author) who practice ment here in the new statute. In this
of the I-485 application for adjust- previous $500,000 threshold for Tar- federal litigation, is what one context, therefore, unlike many oth-
ment of status, and could be issued geted Employment Areas. For invest- er contexts, it will not be possible to
an employment authorization doc- ments elsewhere, the requirement is might call an anti-Darby provi- bypass the AAO and seek review of
ument (EAD) while the application $1,050,000, a more modest increase sion. new section 203(b)(5)(P) a USCIS decision directly in federal
was pending, pursuant to 8 C.F.R. over the previous $1 million thresh- court. (The referenced exceptions in
274a.12(c)(9). Thus, while the I-526 old. The amounts will be further ad- of the Ina, as added by section subparagraph (N)(v) and INA section
and I-485 were pending, the appli- justed for inflation in 2027 and every 103(b)(1) of Division BB (at 242(a)(2) relate to removal proceed-
cant would effectively remain able to five years thereafter. (See page 1024 ings, where there would generally still
live and work in the United States, ul- of the PDF version of the bill.) pages 1049-1050 of the PDF be an administrative appeal required
timately transitioning to LPR status It is also important to note that version of the bill), provides for at least to the Board of Immigration
if the petition and application were only the Secretary of Homeland Se- Appeals, if not the AAO, before judi-
approved. curity or “a designee of the Secretary administrative appellate review cial review could be sought.)
The above scenario is only possi- who is an employee of the Depart- of various uscIs decisions in As flagged by IIUSA, USCIS has
ble when, at the time of filing, a visa ment of Homeland Security” will be indicated that it intends to provide
number is immediately available in able to designate high unemployment the eB-5 context by the uscIs “additional guidance” regarding the
the EB-5 category without the need areas for Targeted Employment Area administrative appeals office changes to the EB-5 program made
for an earlier priority date. However, purposes, while state or local officials by the Consolidated Appropriations
as things now stand, the State De- will no longer be able to do so. (See (aao), and then states: Act, so we can expect that further de-
partment’s Visa Bulletin indicates page 1023 of the PDF version of the tails regarding the USCIS interpre-
that this will be true in almost all bill.) This is presumably an effort to Subject to subparagraph (N)(v) tation of the provisions mentioned
scenarios, with only one exception. counter what current Senate Appro- and section 242(a)(2), and notwith- above, and others, may become avail-
In the April 2022 Visa Bulletin, the priations Committee chair Senator standing any other provision of law able in the future. Even before such
non-regional-center EB-5 Final Ac- Patrick Leahy (D-VT) previously de- (statutory or nonstatutory), including guidance comes out, however, it is al-
tion cutoff dates are Current for all scribed as “gerrymandering” of pur- section 2241 of title 28, United States ready clear that things have changed
countries, meaning that visa numbers ported high-unemployment areas by Code, or any other habeas corpus in some interesting ways.
are available for any priority date
and so concurrent filing is possible. _________________________________________________________________________________________________________
Although the regional-center EB-5 Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
Final Action Dates were Unavailable Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
at the time of Visa Bulletin publica- mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
tion because the Bulletin was first Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
authored on March 10 before the
Consolidated Appropriations Act of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
reauthorized the regional center pro- Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
gram (though there has since been an Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
update referencing the reauthoriza- on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
tion), the regional-center Dates for Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
Filing were Current for all countries and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
but China, and the same will likely be
true of the Final Action cutoff dates immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
next month. For those born in main- the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
land China and unable to exercise in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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