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Behring Regional Center Lawsuit Update – Supplementary Brief and IIUSA Amicus

May 24th, 2022 Colin Behring

Behring Regional Center Supplemental Brief Filed Yesterday

On May 23, 2022, Behring Regional Center LLC took the next steps in defending the EB-5 regional center industry from cancellation and filed its supplemental brief in response to the USCIS’s supplemental brief. These supplemental briefs were requested at the first hearing by Judge Vince Chhabria for Behring’s pending case against USCIS, Behring Regional Center Vs Mayorkas et al.

Judge Chhabria is likely to either schedule another hearing for oral arguments or rule directly after reviewing the documents. If another hearing is called, the parties will likely be notified within the next week or so. If the court rules from the documents alone, we expect more time will be required to prepare the written decision. According to EB-5 Investment Coalition, lead by Laura Reiff and Jeff Campion, the court indicated that it may be able to rule on the briefs in June without another hearing.

“We believe the law is clear — pre-RIA RCs continue to exist under the RIA.  Additionally, an amicus brief was filed by IIUSA.  The judge indicated that he may be able to rule on the briefs in June without a hearing.” As written in a statement by the EB-5 Investment Coalition. “We trust that the judge will rule in our favor, and RCs will be able to raise capital immediately and create new US jobs at no cost to the U.S.”

Amicus Brief filed by IIUSA

Invest in the USA (IIUSA), a non-profit EB-5 industry group, filed an amicus curiae brief yesterday to support Behring’s request for a preliminary injunction to stop USCIS’s cancelation of existing regional centers. Behring consented to, and USCIS did not oppose, IIUSA participating in the case as amicus. We expect the court to accept the unopposed motion and receive the amicus brief.

The amicus brief reiterates Behring’s fundamental argument that USCIS is acting contrary to the plain text of the EB-5 Reform and Integrity Act (“RIA”) of 2022. The RIA did not repeal, and thus, cancel all regional centers existing prior to the RIA, as USCIS contends in its April 2022 announcement on its website. Instead, it clearly reauthorizes the regional center program and ensures that preexisting regional centers maintain their designations and continue operating without interruption.

The single instance of the word “repeal” in the RIA was intended only to remove the EB-5 regional center program from the 1993 Appropriations Act and place it properly under the Immigration and Nationality Act where it belongs.

Recently, members of Congress issued a bipartisan letter to USCIS calling for immediate reauthorization of EB-5 regional centers. See the letter and filing here.

What is an Amicus Brief?

An amicus curiae brief is a persuasive legal document filed by a person or entity that is not a party to the specific case but has an interest in the outcome. Typically, these are filed for cases on appeal. Amicus curiae literally means “friend of the court.” Amicus parties try to “help” the court reach its decision by offering additional facts, analysis, or perspective to the case. The court is not required to accept an amicus brief, but often does so in complicated cases or in cases that may have a broad impact beyond the specific parties.

Here, the amicus curiae brief was filed by McDermott Will & Emery LLP and Klasko Immigration Law Partners LLP on behalf of IIUSA.

Mandamus Actions Could Speed up I-956 Approvals

Regardless of the outcome to the lawsuit, Behring Regional Center LLC v. Mayorkas et al, all pending I-956 regional centers and their applicants will be looking to get their new regional center designations as soon as possible. Given the simplicity of the form, the severity of harm caused by USCIS withholding fast approval and the inability to raise capital for new projects, regional center applicants are likely to file mandamus actions to expedite the process. Behring has used mandamus actions several times before to get positive adjudications quickly from USCIS when they are otherwise being unreasonably withheld. Learn more about mandamus actions and how Behring has used them here.

Technically speaking, a mandamus is a federal lawsuit that results in a writ or order that is issued from a court of superior jurisdiction that commands, in this case, a federal agency, to perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation. In the context of the EB-5 Program, it is a legal device to prevent unreasonable delay by USCIS in processing an EB-5 petition.

After Reauthorization of Regional Centers, Speed to File Becomes Next Focus

Visa Bulletin & retrogression projections will change quickly as the doors open to new I-526 filings. Countries with historically higher volume participation in EB-5, including China, Vietnam, India and Brazil will see a fast changing landscape for processing times and retrogression. Those who plan ahead will avoid surprises and preserve the best possible filing and schedule result possible. This may be critical when considering eligibility for the RIA’s new provision allowing for concurrent filing, i.e., the filing of the I-526 petition and the I-485 adjustment of status at the same time. Learn more about this option.

To prepare your I-526 filing, Behring conducts EB-5 personal investment planning sessions to confirm EB-5 eligibility, prepare source of funds report strategies, identify necessary path of funds and plan for an overall successful EB-5 immigration investment. Learn more about our EB-5 Personal Investment Planning here.

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