Behring Regional Center Sues USCIS Over Cancellation of EB-5 Regional Centers
Behring Regional Center went to court to defend EB-5 investors and the EB-5 industry from USCIS’s recent attempt to cancel all existing EB-5 Regional Centers. On April 22, 2022, Behring filed its third lawsuit against USCIS in federal court, seeking a temporary restraining order (“TRO”) to stop USCIS from deauthorizing all regional centers and requiring regional centers file a new as-yet unpublished Form I-956 redesignation form as well as a new “project form.” According to Q&A published by USCIS on April 29, 2022, new EB-5 investors must wait for this new Form I-956 is approved before begin able to file their I-526 petitions. During its so-called “listening session,” USCIS did not explain what information would be required by the form or how long it would take to be approved. This is crucial. If historical processing times of the Form I-924 for regional center designation / project exemplars are any guide, the EB-5 industry could wait 2-4 more years — after having waited 7 years for EB-5 reform. The 60-day quiet period Congress provided USCIS before the EB-5 Regional Center Program “officially restarted” has now been extended by USCIS arbitrary timeline for predesignation approval. Once again, USCIS has acted contrary to law, essentially canceling all Regional Centers and creating new forms and requirements without the proper public notice and comment period required by the Administrative Procedures Act.
USCIS Unilaterally Declares Existing Regional Centers are Deauthorized and Must Seek Redesignation
USCIS announced on April 29, 2022 that regional centers must obtain “redesignation” by filing a new Form I-956, which has not yet been published. USCIS provided no details nor how explained how it differs from the original Form I-924. Worse still, USCIS stated that new EB-5 investors must wait until USCIS approves this unknown Form I-956 and the regional center files another yet-to-be-created “project form” for the specific project before they can file an I-526 petition. USCIS would not say how long it would take for it to approve these forms, but admitted during the call that they are only 80% staffed and have only begun to review over one million immigration petitions left untouched for over a year. USCIS’s stance will delay the EB-5 Program potentially for years, undermining everyone’s recent efforts in obtaining long-term reauthorization. USCIS’s actions render the 60-day deadline to restart the EB-5 Regional Center Program meaningless; the new de facto timeline is the approval of the so-called Form I-956.
USCIS attempts to justify its position by claiming that the EB-B Reform and Integrity Act of 2022 repealed Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. USCIS focuses solely on “repeal” in isolation of the rest of the law which contemplates the continued designation of current EB-5 Regional Centers.
USCIS policy is unlawful and is designed only to delay new applications. Its effect will be to jeopardize further the credibility and marketability of the EB-5 program and hinder the ability for regional centers to sponsor new projects, continue funding existing projects, and create needed American jobs.
Behring Sues (yet again) to Stop USCIS from Harming EB-5 Industry
Behring, with the support of EB-5 Investment Coalition and Greenberg Traurig, the law firm representing Behring Regional Center, is challenging DHS and USCIS for its unlawful actions and for its failure to implement the EB-5 Reform and Integrity Act as Congress intended. This cause of action represents Behring’s third lawsuit against DHS and USCIS. In the first lawsuit, Behring successfully vacated the 2019 EB-5 Modernization Rule and restored the original EB-5 Program’s $500,000 investment amounts and TEA designation rules. Behring’s second lawsuit challenged DHS’s unlawful suspension of the EB-5 Regional Center Program in July 2022 (pointing out that the statute itself made the Regional Center Program, while making the visa set-aside limited and requiring reauthorization). The lawsuit was successful in applying pressure on Congress to reach a final deal and pass the EB-5 Reform and Integrity Act. After the law was enacted on March 15, 2022, the lawsuit was voluntarily dismissed without prejudice.
Similar to the prior lawsuits, Behring brings this third action before the same court, the U.S. District for the Northern District of California, in San Francisco, and we raise similar claims, viz. that DHS and USCIS have acted arbitrarily and capriciously by implementing this deauthorization of regional centers and by creating new required forms without public notice and comment, all in violation of the Administrative Procedures Act.
After the law was enacted, Congress provided for a 60-day quiet period to allow USCIS to update its system and prepare for immediate operations of the EB-5 Regional Center Program by May 14, 2022. But instead, USCIS created new barriers, and by requiring approval of a new Form I-956, extended this 60-day period to an indefinite period (potentially lasting years given USCIS’s track record on processing Form I-924 for new projects and regional centers).
Under these urgent circumstances, Behring moved for a temporary restraining order, which is an expedited request to the court to order USCIS to stop its unlawful actions. This request has been converted to a preliminary injunction (streamlining court procedure). The hearing on the preliminary injunction is scheduled for May 10, 2022. If the motion is granted, then USCIS will be required to immediately repeal its policy that regional centers are deauthorized and accept new I-526 investor petitions associated with already designated regional centers that have already filed a project-specific I-924 petition prior to the EB-5 Reform and Integrity Act.