The gov’t responded to the EB5 suit to end counting of EB5 derivatives against green card caps. Its response is full of errors & misleading statements. Regardless of the merits of the case, the gov't should be ashamed object.cato.org/sites/cato.org…
Here is INA Sec. 203. The first 3 subsections create visas for family, employees-investors, and diversity lottery winners “subject to the worldwide level”. Subsection (d) provides visas for spouses and minor children (derivatives) of those immigrants, but does NOT apply the cap 
I thought the gov’t would say that “same status” means spouses & children have the same *quota* as their parents & spouses. But 2 immigrants can get the same status & not have the same quota. Adult child of a citizen has a cap & minor child doesn’t, but both get LPR status.
What matters is if the provision that gives them status has a quota. So how did the gov’t twist the language in subsection (d) to argue that it had to count spouses & children against the cap? It didn’t! It literally gives no theory at all *based on the actual language of 203(d)*
Nonetheless, here is how it describes how the statute works. That they receive a green card “under” subsections (a), (b), or (c) of section 203, which have quotas. Does it provide any evidence from the text of the INA to support this interpretation? Nope.
In fact, Congress has repeatedly referred to derivatives as receiving status under subsection (d). Here is the USA PATRIOT Act, for example. The plaintiffs motion cites 8 USC 1101(a)(15)(V); 1154(l)(2)(C); 1186b; 1255(i)(1)(B) as other examples. Did the gov’t not read it?
This is complicated, but the gov’t simply misstates section 202(b). Nothing in that section applies the per-country limits to derivatives who receive status *under subsection (d) of section 203*. It never mentions 203(d) at all.
There are two types of derivatives, section 203(d) derivatives, and other derivatives. Section 203(d) explicitly mentions both types of derivatives, including those who are entitled to status under subsections (a), (b), or (c).
One example is derivatives of special immigrant broadcasters. Why are they counted against the quotas while others aren't? B/c the spouses & children are explicitly subject to sec. 203 limits, including the per-country limits.
Under the govt's theory, spouses & children of broadcasters are already eligible for status under 203(d) & subject to the cap, so this language is meaningless. But if derivatives are generally not subject to the cap, this matters a lot.
The gov’t is confused again here. The reason family of H1Bs, H2Bs, Es, Ts, etc. are explicitly exempted from those category limits is b/c they would otherwise be subject to them, since—like broadcasters—spouses & children are part of the definition of an H1B, H2B, E, etc.
For an example, here is the definition of an E nonimmigrant. The reason that the Australian E spouses & children are exempt from the limits is b/c they are initially subject to them. That is not the case of derivatives of legal immigrants in subsection (d) law.cornell.edu/uscode/text/8/…
Indeed, the gov’t actually gets it backwards. When the gov’t wants to count immigrants, it says so. Here, for example, is the refugee quota provision for spouses and & children in INA 207 law.cornell.edu/uscode/text/8/…
The govt responded by saying this “checks” the authority of the president—but if the language in 203(d) already requires counting of derivatives, why would Congress need to include this additional language to “check” nonexistent authority? It makes no sense
This is just false. The investors’ motion also cites three other directly comparable instances, all of which were enacted at the exact same time as section 203 in 1990 (pp. 21-22). Did the government not actually read their motion or did it misrepresent it?
The Immigration Act of 1990 created Sec. 203 as currently exists by replacing Sec. 203 as created in the Immigration Act of 1965. The gov’t claims that the 1990 contained *exactly the same language* as the 1965. This is exceptionally misleading…
Here are both Acts. Prior to 1990, spouses and children were clearly included in the list of aliens subject to the caps, while the 1990 act clearly doesn’t subject them to the caps, like subsections (a), (b), and (c) do for principal applicants. The gov’t is misleading the court
Most importantly, Congress used this 203(d) language 3 other places in the 1990 Act. In 1991, it amended the law (highlights) to require counting of dependents in all 3 cases. It clearly believed that the language otherwise wouldn’t count them. It did NOT change Sec. 203.
The gov’t ignores all of this. Instead, it makes this argument. 1) EB5 wasn’t backlogged until 2014 so these plaintiffs couldn’t sue. 2) This isn’t even the first time that this exact situation has come up. The gov’t miscounted green cards for years only to admit it was wrong...
LBJ decided to count Cubans under the Cuban Adjustment Act of 1966 against the old 1965 Sec. 203 caps. In 1975, lawsuits were filed, and a decade after the law in 1976, the Ford admin finally ended it, admitting that the govt had counted wrong for years clearinghouse.net/chDocs/public/…
It tries to fearmonger about the effect that exempting derivatives would have on all legal immigration, but b/c the categories affected by this practice are minority of all immigration, the actual effect would be much less: just a 27% increase, not 150% cato.org/blog/immigrati…
Bizarrely, it tries to simultaneously claim that ordering it to stop counting derivatives would hurt Chinese immigrants in other EB categories, which is just an incomprehensible contradiction.
If these are the best arguments that the government has for its policy, it deserves to lose this case. That would be a great thing for all green card applicants and for the United States cato.org/blog/governmen…
