Today, the Department of Homeland Security published its long-awaited proposed rule implementing the EB-5 Reform and Integrity Act of 2022, the first comprehensive EB-5 rulemaking since the reformed program was created. The 358-page Notice of Proposed Rulemaking (Docket USCIS-2026-0100, RIN 1615-AC94) aims to invite comments from the industry to eventually govern how regional centers, project companies, and immigrant investors operate for the next generation of the program.

Behring’s litigation is cited seven times in the proposed rule. Behring brought three federal lawsuits between 2020 and 2022: one vacated an unlawful regulation, one challenged the government’s shutdown of EB-5 filings and adjudications during the 2021 program lapse, and one saved every pre-existing regional center in America. Two of the three are now written into the legal foundation of the regulation itself. Here is how that happened, step by step, and why it matters for every investor and regional center reading the new rule.

Step 1: DHS Rewrites EB-5 by Regulation (2019)

In July 2019, DHS published the EB-5 Immigrant Investor Program Modernization Final Rule (84 FR 35750), effective November 21, 2019. It raised the minimum investment to $1.8 million ($900,000 in a targeted employment area), stripped states of their TEA designation authority, and restructured the program overnight. New filings collapsed immediately impacting USCIS receipt income.  The rule was signed by Kevin McAleenan, then serving as Acting Secretary of Homeland Security.

Step 2: Behring I Vacates the Modernization Rule (June 22, 2021)

Behring Regional Center sued based on this procedural defect. In Behring Regional Center LLC v. Wolf, No. 20-cv-09263-JSC, 544 F. Supp. 3d 937 (N.D. Cal. 2021), the U.S. District Court for the Northern District of California held that McAleenan was not lawfully serving as Acting Secretary when he promulgated the rule, that the rule was therefore void, and that a later ratification attempt by Secretary Mayorkas could not cure the defect, because actions taken without authority cannot be ratified. On June 22, 2021, the court vacated the entire Modernization Rule nationwide. USCIS confirmed it would revert to the pre-2019 regulations, including the $1 million and $500,000 minimums and state TEA designation, on its EB-5 program page and in the USCIS Policy Manual. Industry coverage of the decision is archived by IIUSA and on Behring’s own EB-5 Litigation Updates page.

Step 3: Congress Fills the Vacuum with the RIA (March 15, 2022)

Eight days after the vacatur, the Regional Center Program’s statutory authorization lapsed when Congress failed to reauthorize it. USCIS treated the sunset in error, in the words a federal court would later use, as if it were a “pencils down” directive from Congress: the agency refused to accept or process new regional center petitions, and the Department of State halted related visa processing. Investors who had committed capital in good faith, and the regional centers that depended on them, were left in limbo for nine months.  This direction was at the component level and not a directive of Congress.

Step 4: Behring II Challenges the Shutdown (Late 2021)

Behring sued a second time, naming DHS, USCIS, and the Department of State, on the grounds that the agencies had wrongfully canceled the regional center program and were unlawfully withholding adjudication of pending EB-5 petitions and visa applications. Behring’s core argument was statutory: the 1992 appropriations law’s sunset date applied to the visa set-aside in section 610(b), not to the program itself, so the agencies retained both the authority and the duty to keep processing. When Congress enacted the RIA in March 2022, Behring voluntarily dismissed the suit as moot. The vindication came later, in writing. In the 2022 preliminary injunction ruling described below, the government conceded that section 610(a) remained operative through the lapse and that existing regional centers “retained their authorized status following the sunset date,” and Judge Vince Chhabria observed in the same order that, under the agency’s own reading of the statute, “it’s not clear how [USCIS] could legitimately have refused to process new visa applications that came through the regional centers.” The agency had admitted, in federal court, that the program never actually died on June 30, 2021.  This case appears to have precedent reference if the program is not reauthorized, as the Notice of Proposed Rulemaking is silent on this issue.

Step 5: Congress Fills the Vacuum with the RIA (March 15, 2022)

The vacated regulation, the lapsed statute, and the litigation pressure together produced the legislative fix: the EB-5 Reform and Integrity Act of 2022, enacted as Division BB of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103). The RIA repealed the old authorizing statute, codified the reformed Regional Center Program directly into the Immigration and Nationality Act at section 203(b)(5)(E) through (T), set the investment amounts at $1,050,000 and $800,000, and vested TEA determinations exclusively in DHS. Congress also wrote lapse protection directly into the statute, requiring continued adjudication of pre-RIA petitions and grandfathering petitions filed on or before September 30, 2026 against any future changes. Those provisions exist because of what investors lived through in 2021 and Behring’s extensive legal efforts to achive deconfliction in the Federal Court system.

Step 6: USCIS Tries to Deauthorize Every Regional Center (April 2022)

Weeks after the RIA became law, USCIS announced unilaterally that the new statute had essentially wiped out every existing regional center designation in the country because they could not demonstrate compliance with the new RIA.  This would have had the impact of ending the program, if more than 600 regional centers, and the tens of thousands of investors behind them, been shut off from captial raising activity, as if if they had never been approved.

Step 7: Behring III Wins the Injunction and the Settlement (2022)

Behring sued a third time. In Behring Regional Center LLC v. Mayorkas, No. 3:22-cv-02487-VC (N.D. Cal. 2022), litigated alongside the companion case EB5 Capital v. DHS, No. 3:22-cv-3948-VC, Judge Chhabria granted a preliminary injunction on June 24, 2022. His written order pulled no punches: announcing that existing regional centers were deauthorized “was almost certainly legal error,” USCIS “rested its action solely on an erroneous view of the law,” and Behring was “exceedingly likely (if not certain) to prevail” on its claim that the decision was arbitrary and capricious under the Administrative Procedure Act. The court enjoined USCIS “from treating as deauthorized the previously designated regional centers,” an order USCIS confirmed it would follow on its own EB-5 What’s New page. The full order is publicly available through the federal court archive, and Behring’s contemporaneous analysis is on our lawsuit victory explainer. The parties then reached a settlement: every regional center designated and in good standing before the RIA retained its designation, subject to establishing compliance with the RIA’s new requirements, and investors could file Form I-526E with evidence that the regional center had submitted its Form I-956F project application instead of waiting on a delayed receipt notice. USCIS maintains its settlement notices on its class action settlements page.

Step 8: Today’s Proposed Rule Aims to Codify Behring’s Litigation

From 2022 until today, the reformed program has run without regulations, operating on the statute, interim guidance, and the terms Behring’s settlement secured. The new NPRM converts that history into regulation.

Behring I appears five times (footnotes 13, 41, 53, 58, and 71). The vacatur is DHS’s stated reason the 2019 rule’s changes have no effect and the old 8 CFR 204.6 must be replaced wholesale. It frames the proposed investment amounts (proposed 8 CFR 204.407(b)), the high unemployment area designation process (proposed 8 CFR 204.402(c)), priority date retention, and even the definition of the “Regional Center Program” itself.

Behring III’s settlement appears twice. Footnote 39 states that “in accordance with the settlement agreement,” pre-RIA regional centers in good standing retained their designations subject to RIA compliance. That continuity principle is now embedded in the rule’s definition of a regional center. And in the petition-evidence section, DHS proposes at 8 CFR 204.408(a) to permanently codify the settlement’s alternative-evidence pathway, so investors can continue filing I-526E petitions with proof the project application was submitted.

Behring II left its mark on the statute the rule implements. The RIA’s continued-processing and grandfathering protections answer the exact shutdown Behring’s second lawsuit challenged. One more point deserves notice: by issuing this rule through full notice-and-comment procedure under a Senate-confirmed Secretary, DHS is curing the precise appointment defect that Behring I exposed.

  1. What Happens Next, and Why Your Comment Matters

    This is a proposed rule. The public comment window closes on August 31, 2026, and comments can be filed on regulations.gov under Docket USCIS-2026-0100. Behring will file detailed comments. Just as we went to court when the agency overstepped, we will use the rulemaking process to press for a final rule that is faithful to the statute, to our settlement, and to the investors the program exists to serve. Among the issues we intend to raise: the proposed rule is entirely silent on the RIA’s grandfathering protections, including the provision that shields petitions filed on or before September 30, 2026 from any future lapse in program authorization. Congress wrote those protections in direct response to the 2021 shutdown. A rule that implements the RIA without codifying them leaves investors exposed to a repeat of the very harm three lawsuits were needed to stop, and DHS should close that gap.

    Behring has spent five years proving that when the rules are wrong, they can be fixed. Three times that required a federal courthouse. This time the door is open for the whole industry to be heard, and the deadline is August 31.

Sources

  1. DHS/USCIS, Notice of Proposed Rulemaking, EB-5 Reform and Integrity Act Implementation, Docket USCIS-2026-0100, RIN 1615-AC94 (published July 2, 2026), https://www.federalregister.gov/d/2026-13392
  2. EB-5 Immigrant Investor Program Modernization, Final Rule, 84 FR 35750 (July 24, 2019), https://www.federalregister.gov/documents/2019/07/24/2019-15000/eb-5-immigrant-investor-program-modernization
  3. Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021) (No. 20-cv-09263-JSC)
  4. USCIS, EB-5 Immigrant Investor Program (vacatur guidance), https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program
  5. USCIS Policy Manual, Vol. 6, Part G, Ch. 1, https://www.uscis.gov/policy-manual/volume-6-part-g-chapter-1
  6. Consolidated Appropriations Act, 2022, Pub. L. 117-103, Div. BB (EB-5 Reform and Integrity Act of 2022), https://www.congress.gov/bill/117th-congress/house-bill/2471
  7. Behring Regional Center LLC v. Mayorkas, No. 3:22-cv-02487-VC (N.D. Cal.), Order Granting Preliminary Injunction (June 24, 2022), Dkt. 63, https://archive.org/details/gov.uscourts.cand.394696; EB5 Capital v. DHS, No. 3:22-cv-3948-VC (N.D. Cal. 2022)
  8. USCIS, EB-5 What’s New (injunction compliance alert and settlement implementation), https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-whats-new
  9. USCIS settlement notices, https://www.uscis.gov/laws-and-policy/other-resources/class-action-settlement-notices-and-agreements
  10. IIUSA, “Alert: EB-5 Modernization Regulations Vacated by U.S. District Court” (June 23, 2021), https://iiusa.org/blog/alert-eb-5-modernization-regulations-vacated-by-u-s-district-court/
  11. Behring Regional Center, EB-5 Litigation Updates, https://behringeb5.com/eb-5-litigation-updates-page/; Top 9 Things to Know About Behring Regional Center’s EB-5 Lawsuit Victory, https://behringeb5.com/top-9-things-to-know-about-behring-regional-centers-eb-5-lawsuit-victory/
  12. Comment portal: https://www.regulations.gov/docket/USCIS-2026-0100
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