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Mount Snow EB-5 investor sues federal officials

A Mexican citizen and Florida resident says the federal government is taking too long to review his visa application

DOVER—Mount Snow Resort administrators aren’t the only ones irked by the federal government’s backlogged EB-5 program.

A Florida man who sank $500,000 into the Dover resort’s foreign-investment-driven expansion project has filed suit against several federal officials, alleging a “continuing and inexcusable delay” in 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 for investor Mario Kahn, the wait allegedly is taking a personal toll and could force his departure from the United States.

“The continued delay in adjudicating Mr. Kahn’s petition is causing him and his family significant harm,” Kahn’s suit says.

Kahn requested a court order directing the federal government to adjudicate his EB-5 visa petition within 15 days.

A spokesman for U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of Homeland Security, both named in Kahn’s lawsuit, said officials wouldn’t comment on active litigation.

Citizenship and Immigration Services also has declined to speak about Mount Snow’s EB-5 efforts, saying the agency doesn’t 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 can’t move forward without that money being released.

Last month, Peak announced that Citizenship and Immigration Services had approved Mount Snow’s EB-5 plans. But the company also said that, until the federal agency also completed review of an I-526 immigrant visa petition related to the project, the $52 million would remain in escrow.

Neither a spokesman for Mount Snow nor a spokeswoman for Peak Resorts responded to requests for comment on the status of the project and the new lawsuit.

But Kahn, who resides in Weston, Fla., is speaking out via his complaint filed June 14 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 currently is owner and manager of 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 in the country for business purposes. The couple settled in San Diego and had two children there, documents say.

Kahn and his wife have resided in the U.S. since then except for a brief period in 2013, when they had to return to Mexico temporarily 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 submitted 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 administrators have said they believe a “growing review backlog” is the reason their EB-5 funds haven’t yet 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 forego attractive investment opportunities that could create U.S. jobs.”

Furthermore, he is concerned that he may again have to leave the country. The suit says Kahn’s E-1 visa, if it isn’t extended again, is due to expire June 29.

“This would work a significant hardship on Mr. Kahn’s 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.

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Originally published in The Commons issue #362 (Wednesday, June 22, 2016). This story appeared on page C1.

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