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FAQ on Behring’s 2022 USCIS Lawsuit

March 3rd, 2022 Peter Bibler

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 that had no authority to do so. The court declared the Rule void and the original EB5 program was restored.

Now, Behring Regional Center has filed a new lawsuit against DHS, USCIS and the Department of State (DOS), challenging their refusal to process EB5 petitions and visa applications when they wrongfully terminated the RC program after June 30, 2021.

Here you can get answers directly from Behring about its latest lawsuit against USCIS.

 

Why is Behring filing the lawsuit?

 

We filed this lawsuit because DHS, USCIS and DOS unilaterally terminated a program they had no right to terminate. Congress intended the Regional Center Program to be permanent. It is unthinkable that Congress would design a program where foreign nationals and their families would invest their life savings in U.S. business and pay USCIS and DOS millions in application fees only to watch the program self-destruct in the middle of what has become a years’ long wait for an EB-5 visa.

After working with our attorneys and analyzing the statute line by line and understanding the legislative history, we confirmed that the Regional Center Program was indeed intended to be permanent. The actions of DHS, USCIS and DOS are fundamentally contrary to the law. They have no legal basis to stop accepting and processing EB5 petitions and visa applications.

We filed our lawsuit after Congress failed to pass the omnibus bill on February 18th, which would be the main vehicle for any new EB5 reform bill. Congress has delayed for far too long, and USCIS continues to refuse to process petitions. We’ve done all we could, but we cannot wait any longer. And 40,000 families’ lives have been disrupted because of USCIS unlawful behavior. As a result, other investor lawsuits are being filed under similar claims.

Read Behring’s Press Release.

 

What is the legal basis for the lawsuit?

 

Our claim is based on a plain meaning analysis of the statute that established the EB-5 Regional Center Program. The plain meaning rule means that if the legislative text is plain on its face, the court may not interpret it, but must simply apply as it is written. This is a straightforward textual approach that enables a court to focus on the ordinary meaning of the statute without having to resort to notoriously vaguer sources such as legislative history.

The legislation, as part of Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. No. 102-395, 8 U.S.C. § 1153, that created the EB-5 Regional Center Program in 1992 contains the following key subsections:

(a)  Of  the  visas  otherwise  available  under  section  203(b)(5)  of  the  Immigration  and  Nationality  Act  (8  U.S.C.  1153(b)(5)),  the  Secretary  of  State,  together  with  the  Attorney  General,  shall  set  aside  visas  for  a  pilot  program  to  implement  the  provisions  of  such  section. Such pilot program shall involve a regional center in the United States for the  promotion  of  economic  growth,  including  increased  export  sales,  improved  regional productivity, job creation, and increased domestic capital investment.

 (b) For purposes of the pilot program established in subsection (a), beginning on October 1, 1992, but no later than October 1, 1993, the Secretary of State, together with  the  Attorney  Generalshall  set  aside  300  visas  annually  for  five  years  to include  such  aliens  as  are  eligible  for  admission  under  section  203(b)(5)  of  the  Immigration and Nationality Act and this section, as well as spouses or children which  are  eligible,  under  the  terms  of  the  Immigration  and  Nationality  Act,  to  accompany or follow to join such aliens.

Subsection (a) creates the Regional Center Program, while subsection (b) created an initial visa set-aside (i.e. the floor or minimum) of 300 visas (later amended to 3,000 visas) for 5 years. Congress granted additional extensions only for the annual visa set aside laid out in subsection (b)) The Regional Center Program itself operates independently of subsection (b), and in fact, for many years, it has received visas far above the 3,000 floor.

Importantly, even if we were to look at the legislative history, in 2012, Congress deleted the word “pilot” from the statute. This amendment confirms that subsection (a) had no expiration but was deemed by Congress to be permanent.

Here, DHS, USCIS and DOS effectively terminated not only the 3,000 visa set-aside, which was subject to the June 30, 2021 sunset, but they wrongly eliminated the entire Regional Center Program itself (i.e. subsection (a), which has no expiration date).

 

How will the lawsuit impact Congress negotiations over the EB-5 reform bill?

 

The lawsuit does not hinder Congressional negotiations. In fact, it helps by pushing the parties closer to making a deal.

Congress has repeatedly tried to enact EB-5 reform but have always failed. Historically, EB-5 industry leaders had more leverage and tended to refuse certain proposed changes (e.g. investment levels and TEA definitions). Moreover, rural and urban stakeholder factions often failed to achieve consensus on legislation, and EB-5 reform was repeatedly delayed. After the program was decoupled by the Continuing Resolution appropriations process in December 2020, that leverage then shifted to Congress, specifically to Senators Grassley and Leahy, who seek substantial changes to the program.

Unfortunately, in the middle of all this were existing EB-5 investors – now over 40,000 families. Behring’s lawsuit brings balance to the negotiations table because if neither side can reach a deal, the lawsuit takes the decision out of their hands and puts it into the court’s.

The lawsuit is a wake-up call for Congress to hurry to pass meaningful EB5 reform. They recognize the merits of the lawsuit, so the existence of the Regional Center Program is no longer a bargaining chip. More importantly, the 40,000 existing investors, who have already invested, filed and paid USCIS and DOS more than $47 million in fees to process their applications, are no longer a mere bargaining chip. The “take-it or leave-it” attitudes often witnessed at these negotiations have faded, and there is a strong desire to reach a deal quickly.

The Grassley-Leahy team have recently returned with their own reform bill, and they are working with Majority Leader Schumer and others to hammer out a deal that incorporates some proposals found in the Industry Consensus Bill presented by Chairman Nadler. We’re confident the EB5 RC Program will be restored in the end.

But if there’s a breakdown in talks, or a deal is delayed, our lawsuit continues and will hold them accountable.

 

What remedy is Behring seeking?

 

We are seeking to force the government to reverse its illegal termination of the EB-5 Regional Center Program and to begin processing regional center-associated EB-5 petitions and visa applications.

 

How will Behring’s lawsuit help EB-5 investors?

 

If Behring wins in court, then DHS, USCIS and DOS will be ordered to stop its wrongful withholding of adjudication of all EB-5 regional center-associated petitions and visa applications. Soon thereafter, existing EB-5 investors could expect their EB-5 petitions and visa applications to be processed normally. New EB-5 investors would be eligible to invest and file new EB-5 petitions under existing EB-5 regulations (currently, $500,000 for TEA-qualified projects). Learn more about Behring’s I-924 / I-526 approved EB-5 project.

 

Where is the case being filed?

 

The case is filed at the U.S. District Court for the Northern District of California. This is the same court where Behring filed its first lawsuit against DHS in December 2020. Currently, the case is before U.S. Magistrate Judge Alex Tse. See official status of the case.

 

Who are the defendants?

 

The defendants are:

  • Alejandro Mayorkas, in his capacity as Secretary of Department of Homeland Security (DHS)
  • Ur M. Jaddou, in her capacity as Director of US Citizenship and Immigration Services (USCIS)
  • Anthony Blinken, in his capacity as Secretary of State (DOS)
  • Rene Bitter, in her capacity as Assistant Secretary of State (DOS).

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.

 

How long will the lawsuit take?

 

We filed the case on February 19, 2021. Because the defendants are agencies of the U.S. government, they have 60 days to respond to the complaint. We are seeking to expedite the process. We will be filing a motion for a preliminary injunction, which is a legal request for immediate, temporary relief before the case goes to trial. Because the case involves pure legal claims about that statute’s text, we expect the case to be decided by summary judgment without the need for a full trial. If we win the motion for a preliminary injunction and/or motion for summary judgment, then the judge would order that DHS, USCIS and DOS to stop its unlawful termination of the Regional Center Program, and we would soon see these agencies restart processing of EB-5 petitions under the original rules of the EB-5 program.

We are already seeing positive results since the case was filed. Congress is aware of our lawsuit and is even more motivated to pass a comprehensive EB-5 reform bill.

 

How likely will Behring win the lawsuit?

 

We are confident the law is on our side, but all litigation is unpredictable by its nature. USCIS does not have a great track record on interpretation of the law. See, e.g. Behring Regional Center vs. Wolf, et al. and Zhang vs. USCIS. While we cannot assign a percentage of success, we are hopeful for a positive result.

 

Can I join the lawsuit against USCIS?

 

To present the simplest and strongest legal claims, Behring is filing alone as an EB-5 industry representative. Soon, Behring may consider additional legal claims against DHS, USCIS, and DOS to address further the impact of USCIS and DOS’s wrongful withholding processing of EB-5 petitions and visa applications for over 7 months. If an opportunity arises and we can pursue mandamus claims on behalf of Behring Regional Center and our EB-5 investors, we will notify our investors.

Meanwhile, if existing EB-5 investors want to join similar lawsuits investor-lead lawsuits, they can contact these firms to determine if their specific cases are suitable to participate:

 

How can I learn more about the lawsuit?

 

Join Behring’s mailing list to receive timely updates about Behring’s new lawsuit and on EB-5 policy reform.

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