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ImmIGRATION JULY 16, 2021 | The Indian Eye 42
Wang v. Blinken Nixes
any hope for excluding the
Counting of Family members
in the Green Card Caps
CyruS D. mehTa and are a group of EB-5 in- primary argument was ation” language as it per- comes as a deep disap-
vestors who would have that nothing in the lan- tains to derivative family pointment to the many
KaiTlyN BOx
been able to adjust sta- guage of INA § 203(d), members appeared in a immigration attorneys
n July 9, 2021, tus long ago if not for which states that “[v] section describing which who had hoped that the
the U.S. Court the lengthy backlogs in isas shall be made avail- immigrants “are subject Biden administration
the EB-5 China, and able, in a number not to the numerical limita-
could reinterpret INA §
Oof Appeals for subsequently Vietnam, to exceed 7.1 percent tions”, but in 1990 this 203(d) to support either
the D.C. Circuit issued categories caused by of [the 140,000 employ- provision was shifted to not count derivatives at
its opinion in Wang v.
Blinken, No. 20-5076 counting derivative fam- ment-based] worldwide a new section entitled all or counting family
(D.C. Cir. 2021), inter- ily members against the level, to qualified immi- “Treatment of Fam- units as one.
preting INA § 203(d) EB-5 cap. grants seeking to enter ily Members”. Plaintiffs
In a previous blog, the United States for argued that this change
to include the counting we discussed the case the purpose of engaging indicated an intent on We have long taken
of derivatives toward at the District Court in a new enterprise….. the part of Congress to the position that not
the EB-5 investor cap. Level, where Plaintiffs’ in which such alien has subject only EB-5 in-
The Plaintiffs in the case counting derivatives
invested” a qualifying vestors, and not their
amount of capital, and spouses and children, to under the preference
which will create at least the numerical cap. quotas would be con-
10 jobs for U.S. work- The Court, however,
ers, requires derivative disagreed with this rea- sistent with ina §
family members to be soning. Judge Walker, 203(d). See, for ex-
counted against the cap. who authored the opin-
Instead, spouses and ion, interpreted the key ample, our blogs on
children, under INA phrase “same status” to The Tyranny of priori-
203(d) are “entitled to mean that because an
the same status and the EB-5 investor’s family ty dates in 2010, how
same order of consid- members get the same president obama
eration provided in the type of visa as the prin-
respective subsection, if cipal, they must also can erase immigrant
accompanying or follow- be counted against the visa Backlogs With
ing to join, the spouse or cap, and reasoned that
parent.” “same order of consid- a Stroke of a pen in
Plaintiffs also argued eration provided in the
m of that Congress intend- respective subsection,” 2012, and The Way
CYRUS D. MEHTA & PARTNERS PLLC ed to exempt derivative which refers to the We count in 2013.
family members from worldwide cap on em-
the numerical caps when ployment-based visas, The Biden admin-
it changed the relevant further indicates that istration solicited rec-
regulatory language in spouses and children of ommendations on how
the Immigration Act of EB-5 investors are sub- to remove barriers and
1990. Prior to 1990, the ject to the cap. obstacles to legal im-
“same status, and the The Court’s deci- migration, and unitary
2 6th Floor
same order of consider- sion in Wang v. Blinken counting of derivatives,
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