On July 9, 2021, the U.S. Court of Appeals for the D.C. Circuit ruled in Wang v. Blinken that family members must be counted toward the annual cap of about 10,000 EB-5 green cards. Plaintiffs had argued that the immigration statute is ambiguous and could also be interpreted as not including family members. That would mean that 10,000 investors plus their family members could immigrate to the United States each year under the EB-5 quota, rather than about 3,000 investors plus their family members. Judge Walker, who authored the opinion, interpreted the phrase “same status” at 8 U.S.C. § 1153(d) to mean that because an EB-5 investor’s family members get the same type of visa, they must also be counted against the 10,000 cap, and reasoned that “same order of consideration provided in the respective subsection,” which refers to the worldwide cap on employment-based visas, further indicates that spouses and children of EB-5 investors are subject to the overall EB-5 annual cap.
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