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EB-5 Litigation Updates Page

January 22nd, 2021 Kyle Behring

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), stemming from agency violations of their statutory authority as it relates to the EB-5 Regional Center Program.

Behring views litigation as a last resort, but also a necessary tool to defend the EB-5 industry and new and existing investors from situations where DHS, USCIS and DOS engage in actions that harm the EB-5 Program and its stakeholders.

Behring’s goal, when it has no choice but to file a lawsuit against DHS, USCIS and DOS, is to compel these agencies to do the right thing in implementing a fair, transparent and efficient EB-5 Program.

See all of the EB-5 litigation update posts at the bottom of this page.

Past and Present Litigation

Behring Regional Center v. Wolf, et al. (Dec. 2020) (3:20-cv-09263)

Behring Won

On June 22, 2021, the U.S. District Court for the Northern District of California ruled in summary judgment that USCIS exceeded its authority in promulgating the EB-5 Modernization Rule that had changed TEA designation rules and increased the investment amounts to $900,000 and $1.8 million. This invalid regulation, implemented in November 2019, essentially caused the EB-5 Program to collapse. Behring’s victory restored the EB-5 Program to the pre-November 2019 requirements, and investors were successfully able to file new EB-5 petitions at $500,000 before USCIS unilaterally terminated the program after June 30, 2021. USCIS initially filed a notice of appeal, but later dropped its appeal.

Behring Regional Center v. Mayorkas, et al. (Feb. 2022) (3:22-cv-01049)

– Voluntarily Dismissed

Behring filed a new lawsuit after USCIS unilaterally refused to accept new regional center-associated I-526 petitions after June 30, 2021. USCIS claimed the program had a sunset date, but Behring exposed USCIS’s error by showing that the statute that originally established the EB-5 Regional Center Pilot Program had no expiration. Instead, it was only the 300 (later 3,000) visa set-aside that was time-limited, leaving USCIS with full authority to issue visas (up to 10,000 per year) to EB-5 regional center-associated I-526 petitions alongside direct investment I-526 petitions. Behring’s lawsuit also put pressure on Congress to pass the EB-5 Integrity and Reform Act of 2022 (“RIA”) when the bill faced significant risk of failure.

Behring voluntarily dismissed its lawsuit because its legal claim was rendered moot by the passage of the RIA. However, in Behring’s third lawsuit, USCIS attorneys admitted in court that authorization for regional centers never expired after June 30, 2021, contradicting its prior stance.

Behring Regional Center v. Mayorkas, et al. (Apr. 2022) (3:22-cv-02487)

– Ongoing

 Behring filed its third lawsuit in April 2022 after USCIS suddenly announced that all approved regional centers prior to the enactment of the EB-5 Integrity and Reform Act of 2022 (RIA) were canceled and are required to have a new Form I-956 approved before new EB-5 investors may file their I-526 petitions. Behring asserted that once again USCIS was exceeding its authority because (1) nowhere in the RIA does it state that pre-approved regional centers are deauthorized; (2) the statute itself contemplates that existing regional centers kept their designation because the RIA provides that I-924 exemplars approved prior to the RIA are still binding on future EB-5 petitions; and (3) USCIS failed to conduct proper notice and comment rulemaking for the new Forms I-956, 956F, and I-956H. Congress has sent 2 letters to USCIS, blunting stating that USCIS is wrong and acting contrary to what they intended when it passed the RIA. 

Behring is seeking a preliminary injunction to stop USCIS from deauthorizing regional centers and preventing Behring from being able to have new investors file their I-526 petitions. The court recently held its second hearing for this case on June 2, 2022. There, the court stated that USCIS “may have committed legal error” in assuming the RIA deauthorized existing regional centers. The court then asked for the parties to file supplemental briefs on what remedy to provide Behring Regional Center.  

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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…   

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 ...

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