[D]OVER — Mount Snow Resort administrators aren’t the only people irked by a backlog in the federal government’s EB-5 investment program.
A Florida man who sunk $500,000 into the Dover resort’s foreign-investment-driven expansion project has sued several federal officials, alleging a “continuing and inexcusable delay” in the review of his associated visa application.
Mount Snow’s snowmaking and lodge upgrades have slowed to a crawl while the resort waits for federal approval to access $52 million in EB-5 money. But investor Mario Kahn says the wait is taking a personal toll and could force his departure from the U.S.
“The continued delay in adjudicating Mr. Kahn’s petition is causing him and his family significant harm,” his suit says.
Kahn is requesting a court order directing the federal government to adjudicate his EB-5 visa petition within 15 days. An online federal court database shows that no responses had been filed as of Wednesday afternoon.
A spokesman for U.S. Citizenship and Immigration Services and the U.S. Department of Homeland Security, both named in Kahn’s lawsuit, said Wednesday that officials would not comment on active litigation.
Citizenship and Immigration Services also has declined to speak about Mount Snow’s EB-5 efforts, saying the agency does not comment on specific projects.
Mount Snow’s Carinthia LP plans include the West Lake snowmaking upgrade and a new Carinthia Ski Lodge. Both are supposed to be funded via the federal EB-5 program, which allows for foreign investors to gain permanent residency by contributing to job-creating projects in the U.S.
The EB-5 program has been attracting increased scrutiny since federal and state officials earlier this year alleged massive fraud at EB-5-funded resorts in northern Vermont. But Mount Snow administrators have taken pains to point out that they have no connection to that scandal.
Still, there are EB-5 problems at Mount Snow, as a longer-than-expected federal approval process has kept $52 million for the Carinthia LP project tied up in escrow. Administrators at Mount Snow and parent company Peak Resorts have said the project cannot move forward without that money being released.
Last month, Peak Resorts announced that Citizenship and Immigration Services had approved Mount Snow’s EB-5 plans. But the company also said that, until the federal agency has completed review of an I-526 immigrant visa petition related to the project, the $52 million would remain in escrow.
Spokespeople for Mount Snow and Peak Resorts could not be reached for comment Wednesday.
But Kahn is speaking out via a complaint filed Tuesday in U.S. District Court in Washington, D.C.
The Mexican citizen says he is an “experienced businessman” with a background in sales, management and marketing; he owns and manages an extreme-sports product company called Xtreme Planet S.A.
Kahn’s complaint says he and his wife first came to the U.S. in February 2007 on an E-1 “treaty trader” visa, which allows a noncitizen to stay temporarily for business purposes. The couple settled in San Diego and had two children there, documents say.
Kahn and his wife have lived in the U.S. since then except for a brief period in 2013, when they had to return to Mexico due to a delay in renewing their E-1 visa. “Mr. Kahn and his family sought to return to and remain in the United States and to continue to develop business and trade here,” the lawsuit says. “As such, Mr. Kahn explored the option of becoming an immigrant investor under the EB-5 program.”
In May 2014, Kahn submitted an I-526 visa petition under that program and invested $500,000 in the Mount Snow EB-5 projects. Kahn says his own documentation, as well as documentation submitted by the Vermont EB-5 Regional Center, show that the Mount Snow project “easily satisfies” the EB-5 program’s job creation requirements.
“According to economic forecasting of the project’s impact, the new commercial enterprise (and one additional limited partnership) would create more than 1,200 jobs throughout the U.S. economy based on an investment of $500,000 each from 104 individual investors in addition to capital provided by the owners of Mount Snow,” the suit says.
But more than two years after filing his EB-5 visa petition, Kahn still is waiting for federal approval. “Despite Mr. Kahn’s comprehensive and detailed form I-526 petition … USCIS has unreasonably delayed in approving it, or indeed, taking any action at all,” the lawsuit claims.
Mount Snow officials have said they believe a “growing review backlog” is the reason their EB-5 money has not been released. Recent federal statistics confirmed that backlog: Citizenship and Immigration Services officials have said there are more than 20,000 pending I-526 visa applications.
But Kahn contends he has waited for “a period that is significantly longer than the average processing time for such petitions.” And his suit documents multiple inquiries, both through his attorney and U.S. Sen. Bill Nelson, D-Fla., that have produced little response from Citizenship and Immigration Services.
“USCIS has not requested further information or evidence for Mr. Kahn’s petition; never explained the reason for the lengthy and continuing delay; (and has) not provided any indication of when the review might be completed, despite repeated requests,” the suit says.
Kahn says the long wait has caused “significant uncertainty … which has caused him to forgo attractive investment opportunities that could create U.S. jobs.”
Furthermore, he says he is concerned he may again have to leave the country. The suit says Kahn’s E-1 visa, if it is not extended again, is due to expire June 29. This would be a significant hardship for his young children, “two U.S. citizens who are currently enrolled in U.S. schools in Florida, and who have almost no experience with Mexico,” the document says.
