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Behring’s Lawsuit to Vacate the 2019 EB-5 Modernization Regulations

January 1st, 2021 Kyle Behring

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.

Read Behring’s Press Release.

Behring Lawsuit FAQs

Case Summary:

 

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. 

Parties: 

 

Plaintiff: 

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. 

Defendants:  

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. 

Background:  

 

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. 

Goal: 

 

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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Litigation Update Posts

USCIS Flip Flops and Admits that EB-5 Program’s 2021 Expiration Potentially Invalid

In an extremely odd turn of events in court yesterday for Behring’s second hearing in its lawsuit to stop USCIS from deauthorizing EB-5 Regional Centers, USCIS flip flops on their position regarding last years EB-5 Regional Center program expiration and appeared to agree with Behring that the EB-5 Regional Center Program did not lapse after

2nd Hearing Update: USCIS “May Have Committed Legal Error”

Yesterday, Behring Regional Center had its second hearing before the US District Court for the Northern District of California in its third lawsuit against USCIS. The hearing was scheduled after the Judge Chhabria requested both parties to file supplemental briefs to address further the question whether Congress intended to cancel the existing Regional Center Program ...

Court Schedules New Hearing in Behring’s Case Against USCIS

The court scheduled a second hearing in Behring’s preliminary injunction lawsuit against USCIS’s recent deauthorization of regional centers. The hearing is set for Thursday, June 2nd at 12:30pm. The court specifically requested that USCIS address the relevance of Senator Grassley’s statements made about the RIA. Watch his statement here. Behring holds that Grassley’s statements have no bearing on

U.S. Congress Issues Letter to USCIS Clarifying Immediate Reauthorization of EB-5 Regional Centers

Today, May 9, 2022, Congress issued a bipartisan letter to DHS clarifying Congress’s intent regarding the 2022 Integrity and Reform Act, stating that existing Regional Centers do not need to be recertified under the law. Recently announced on its website, USCIS wrongly interpreted the statute, claiming that because Congress repealed Section 610 of the Departments ...

Summary and Analysis of the 2022 EB-5 Reform and Integrity Act

Breaking News:  Below we are outlining the summary terms within the new EB-5 Reform and Integrity Act of 2022.  We are also hosting a webinar event to discuss the new changes. A replay is available for those who register after the broadcast date. {{ vc_btn: title=Register+for+Webinar&color=danger&enable_fancy_box=no&link=url%3Ahttps%253A%252F%252Fmy.demio.com%252Fref%252FDblwsg21yxUD4yR2 }} ***New EB-5 Bill Officially Out. Download here.*** 2022 ...

FAQ on Behring’s 2022 USCIS Lawsuit

Last June, Behring won a landmark lawsuit against USCIS, vacating the 2019 EB5 Modernization Rule. This Rule created increased risk and uncertainty to make the Program unworkable. After its implementation, new filings dropped by 99%. On June 22, 2021, the federal court agreed with Behring that the 2019 Rule was unlawfully implemented by acting officials

EB-5 Litigation Update Post #11: Behring Files Second EB-5 Lawsuit Against USCIS. EB-5 Regional Center Program Expiration Contrary to Law

Over the weekend, Behring Regional Center filed a second lawsuit against DHS and USCIS, and including the Department of State (DOS), because these agencies have wrongfully canceled the EB-5 regional center program and are unlawfully withholding adjudication of pending EB-5 petitions and visa applications. One of our investors informed us that the law firm Wasden ...

EB-5 Litigation Update Post #10: DHS Has Dropped Their Appeal in Behring Regional Center v. Wolf, et al Lawsuit

In June 2021, Behring won its lawsuit against DHS, reversing the EB-5 regulations that were implemented in November 2019. In August 2021, DHS filed a motion to appeal the court's ruling. Today, January 5, 2022, the Department of Homeland Security withdrew its appeal of the Behring Regional Center LLC v. Alejandro N. Mayorkas, et al ...

EB-5 Litigation Update Post #9: DHS Files Notice of Appeal in Behring Regional Center v Wolf

Today, DHS filed its notice of appeal on the last day before the 60-day window expired in Behring Regional Center v. Wolf et al. This is not cause for alarm, and EB-5 investors should not make hasty decisions and feel they must rush to make new EB-5 investments. Contrary to some reports already floating around,

EB-5 Litigation Update Post #8: USCIS reinstates Form I-526 from April 2019 with $500,000 investment amount: Too little too late for some.

Background: Behring Regional Center Vs. Chad Wolf et al. In November 2019, the EB-5 Immigrant Investor Program experienced regulation changes that would prove to instantly stall the program from being used to invest, create jobs and immigrate. The new regulations included new regulations and increased investor and operating requirements. Most notably, the minimum investment amount

EB-5 Litigation Update Post #7: Behring Wins EB-5 Lawsuit, Court Vacates 2019 EB-5 Modernization Rule, $500,000 TEAs

Behring Regional Center Secures Major Legal Win Against DHS: Court Vacates 2019 EB-5 Modernization Rule Download - Read the Decision Today, the US District Court for the Northern District of California ruled in favor of Behring Regional Center, vacating the 2019 EB-5 Modernization Rule. The court agreed that DHS had no authority to implement the ...

EB-5 Litigation Update Post #6: May 13, 2021 Hearing

Behring Regional Center had its final EB-5 hearing on May 13, 2021 before the US District Court for the Northern District of California in its lawsuit against DHS and USCIS. In Behring Regional Center vs. Wolf, et al, Behring seeks to block the 2019 EB-5 Modernization Rule that derailed the EB-5 Program’s reasonable operability and ...

EB-5 Litigation Update Post #5: Behring’s Litigation Glossary

Behring’s case against DHS is still pending. The government is expected to file a brief to reply to Behring’s arguments against the validity of DHS’s recent attempt to ratify the 2019 EB-5 Modernization Rule on April 22, 2021…

EB-5 Litigation Update Post #4: DHS Secretary Mayorkas Ratifies 2019 EB-5 Modernization Rule

Behring’s case against DHS challenging the validity of the 2019 EB-5 Immigrant Investor Program Modernization Rule is currently pending in federal district court. The next court date is May 6, 2021 when the court is expected to issue a final ruling…

EB-5 Litigation Update Post #3: Behring seeks to overturn EB-5 Regs in USCIS lawsuit

Behring is in the news again for our latest efforts to improve the EB-5 industry in its EB-5 lawsuit against USCIS. This time is different though. We are not just innovating to offer better EB-5 investments, but to save the industry as a whole. After the new EB-5 rules started in November 2019, the industry ...

EB-5 Litigation Update Post #2: Biden’s Announced Immigration Priorities Gives Hope for Behring’s Push for a Revitalized EB-5 Program

Not wasting any time, on his first day as the 46th US President, Biden signed 17 Executive Orders and unveiled his priorities for immigration reform. Six orders addressed immigration. He immediately repealed the travel ban on majority-Muslim countries. He also halted construction of the border wall near the border with Mexico. Importantly, Biden announced proposed legislation to…

EB-5 Litigation Update Post #1: Behring challenges DHS authority to Enact EB-5 Modernization Rules

Behring argues, in part, that the EB-5 Modernization Rule is invalid because the purported heads of DHS and USCIS had not been duly appointed under the Presidential nomination and Senate consent process at the time they promulgated the Rule. The claim stems from the continued controversy at DHS and USCIS where a series of officials have taken on the positions only to resign later…   

EB-5 Litigation Updates Page

Behring Regional Center's EB-5 Litigation Updates   Get the latest updates straight from the source.  Welcome to Behring’s EB-5 Litigation Updates page. Here, we aim to provide EB-5 stakeholders frequent updates about Behring Regional Center’s litigation against the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS), ...

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