Behring’s Lawsuit to Vacate the 2019 EB-5 Modernization Regulations
Welcome to Behring’s Lawsuit to Vacate 2019 EB-5 Modernization Regulations Page. Here, we aim to provide stakeholders in the EB-5 Program with the case background and updates on Behring’s lawsuit against the DHS, USCIS and DOS stemming from the adverse effects of their unilateral termination of the EB-5 Regional Center Program.
See all of the EB-5 litigation update posts at the bottom of this page.
On February 19, 2022, Behring Regional Center filed a lawsuit against the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), the Department of State (DOS) requesting that the U.S. District Court for the Northern District of California stop these agencies from unilaterally canceling the EB-5 regional center program and order them to process EB-5 regional center-associated petitions in the normal course of business.
These agencies wrongfully terminated the regional center program when they stopped processing all regional center-associated petitions received on or before June 30, 2021, stopped processing all EB-5 visa applications based on regional center petitions, and refused to accepted to EB-5 petitions.
The plain language of the statute shows that the regional center program was permanently established by Congress, and that these agencies exceeded their statutory authority by unilaterally canceling the regional center program by misinterpreting a time-based visa set aside provision and improperly disregarding statutory language that provides for the continuance of the regional center program even if the set aside visa number were to expire.
Behring Regional Center LLC, formerly known as Berkeley Regional Center Fund, LLC (“Behring”), established in 2013, has over $612 million developments in active progress, with EB-5 investors from 26 countries and a 100% track record on adjudicated I-526 petitions. As a developer, Behring has a 60-year family history of real estate investment and development. Behring focuses on multifamily residential housing in the San Francisco Bay Area. Learn more about Behring’s experience.
Behring is represented by Greenberg Traurig LLP.
The defendants are Alejandro Mayorkas, as Secretary of Department of Homeland Security and Ur M. Jaddou, as Director of US Citizenship and Immigration Services, Anthony Blinken, as Secretary of State, and Rene Bitter, as Assistant Secretary of State. These parties lead their respective agencies that have wrongfully stopped all processing of EB-5 regional center-associated petitions and visa applications. In doing so, they exceeded their statutory authority in wrongfully canceling the EB-5 regional center program.
DHS, USCIS and DOS claimed that statutory authorization for the EB-5 regional center program expired after June 30, 2021. Thereafter, USCIS not only refused to accept new regional center-associated I-924 and I-526 petitions and I-485 Applications for Adjustment of Status, but the agency also refused to continue to process all pending petitions filed on or before June 30, 2021. They placed these petitions on hold even though they were timely filed and even though USCIS had already collected nearly $48 million in fees for pending I-526 petitions alone. Additionally, DOS ceased issuing EB-5 visas associated with approved regional center-associated I-526 petitions.
Behring has continually advocated with Congress to restore the program. Behring continues to support the industry consensus EB-5 reform bill that aims to strengthen the program’s integrity and improve the program by proposing tools such as child age-out protection, concurrent filing, advance parole and other features. It was anticipated that this reform bill would be part of Congress’s omnibus appropriations bill that was expected to be passed on February 18, 2022. But on February 18, 2022 Congress passed yet another extension to March 11, 2022 to finalize drafting the omnibus.
Negotiations for the EB-5 reform bill reportedly continue, but no EB-5 related legislation was attached to the continuing resolution to keep the government funded through March 11, 2022.
Behring Regional Center and its investors can no longer wait. DHS, USCIS and DOS are operating under a false conception that the program somehow expired and claim they have no authority to process regional center-associated petitions and visa applications. Our lawsuit aims to correct this fundamental error.
We seek to restore the EB-5 regional center program and compel USCIS and DOS to adjudicate EB-5 investor petitions and visa applications properly and timely. Importantly, by recognizing the permanency of the EB-5 regional center program, we strengthen the program’s integrity. A permanent program prevents artificial deadlines and unnecessary rushes that encourage bad actors to take advantage of investor pressure to file, information shortage, and painfully long USCIS processing times. A permanent program encourages high quality institutional participation as well as efficient filing to promote program consistency and quality and timely adjudication.
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