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

May 9th, 2022 Colin Behring

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 Recently announced on its website, USCIS wrongly interpreted the statute, claiming that because Congress repealed Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (which originally established the Regional Center Pilot Program), and that all EB-5 Regional Centers are no longer designated and need to start over by filing a new Form I-956 (which has yet to be published). This redesignation Form I-956 must be approved before any new EB-5 investors may file their I-526 petitions. Additionally, USCIS claimed Regional Centers must also file a new “project form” form (unpublished, contents unknown) even for projects that have already been previously approved. The devastating effect to the EB-5 industry is that the 60-day “restart” that Congress provided to allow USCIS to update its system and forms has turned into a 2-3 year wait before the EB-5 program could really begin.

See the letter below:

Download a copy of the 2022-05-09 Joint EB-5 RC Letter

Behring Files New Lawsuit Against USCIS

Behring Regional Center saw that USCIS’s action is unlawful and contrary to a plain reading of the statute and essentially stops the EB-5 Program just after EB-5 Regional Centers and investors waited over 9 months for a painful reauthorization process to conclude. Behring immediately filed a lawsuit contesting USCIS’s interpretation of the language and its attempt to decertify all existing EB-5 Regional Centers.

Behring, which won a lawsuit against USCIS in June 2021, filed a new lawsuit and moved for a temporary restraining order, i.e., a request for the court to order USCIS from stopping its deauthorization of Regional Centers to allow EB-5 investors to file I-526 petitions as usual after May 14, 2022.

Congress Did Not Intend to Deauthorize Regional Centers

Today’s letter from Congress clearly shows that Congress did not intend for the deauthorization of Regional Centers when it passed the EB-5 Reform and Integrity Act on March 15, 2022. Democrats Congressman Nadler, Majority Leader Schumer joined by Republican Senators Cornyn and Graham expressed that USCIS is creating an unnecessary burden and redundancy and, in fact, already has the tools it needs to implement the integrity measures while still allowing regional centers and investors to proceed with new filings.

At the heart of this matter is that USCIS is focused on the law’s language repealing Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. The 1993 Appropriations Act originally established the Regional Center Pilot Program). As the law’s drafters explain in the letter, the purpose for the repeal language was to move the EB-5 Regional Center Program from the Appropriations Act and place it squarely under the Immigration and Nationality Act where it belongs. It was not a cancelation of the program. The statute itself is for the reauthorization of the Regional Center Program, and various provisions through assume the existence of Regional Centers. Learn more about the 2022 EB-5 Reform Act (Summary).

2022 EB-5 Reform Act Assumes Continuation of Existing Regional Centers

Notably, the 2022 EB-5 Reform Act expressly provides that approved projects, even those prior to the enactment of the new law, are still valid and binding on adjudications of new I-526 petitions. INA 203(b)(5)(F)(ii). Moreover, grandfathered EB-5 investors still need Regional Centers to be able to count indirect job creation. EB-5 investors who switch regional centers because of regional center noncompliance would have not regional center to turn to preserve their priority date and continue their application.

Behring’s motion will be heard by the district court on May 10, 2022. 

Please contact Behring  if you would like to learn more about its lawsuit against DHS and USCIS.

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