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Litigation Update: Court Defers Ruling, Asks Parties to File Supplemental Briefs

May 10th, 2022 Peter Bibler

The court heard arguments today on Behring’s motion for a temporary restraining order. By agreement, the parties agreed to change the request to that of a preliminary injunction (simply streamlining the legal process). During the hearing, the judge asked several questions about how specific language in the EB-5 Reform and Integrity Act (RIA) should be interpreted and the nature and immediacy of the harm to existing EB-5 regional centers.

The court did not see the urgency in having the matter decided before Friday, and because the judge wanted several questions answered before ruling, both parties will file supplemental briefs to address these questions prior by May 23, 2022. Thereafter, the judge will rule directly after reviewing the supplemental briefs, or if necessary, hold another hearing.

Meanwhile, all eyes are now on USCIS to see the publication of the new Form I-956 and how the redesignation process is initiated. The biggest question now is if USCIS will recognize that prior approved I-924s remain binding on new I-526 adjudications, as provided in the new law. Or will USCIS cause extended delays in processing the new Form I-956 because the RIA does not substantially change what is already required when regional centers file the initial I-924 for regional center designation and project exemplar. Historically, I-924 exemplar petitions take 3-5 years to be approved.

We hope that the new Form I-956 redesignation process is transparent and provides a definitive timeline for fast approval so that EB-5 investors need not wait indefinitely to file their I-526 petitions, and regional centers can continue to operate and sponsor projects that create American jobs. While Behring is prepared to file the new Form I-956, but if the process is not transparent and timely, Behring will continue to fight USCIS’s cancelation of regional centers and its interpretation of the RIA.

 

Please contact Behring  if you would like to learn more about its lawsuit against DHS and USCIS and when investors may file new I-526 petitions to start the EB-5 process.

 

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