Behring Secures Settlement with USCIS: Regional Centers Maintain Designation
Today, Behring Regional Center and other industry plaintiffs entered into a settlement agreement with USCIS agreeing to reauthorize all existing regional centers approved prior to the EB-5 Reform and Integrity Act (“RIA”) passed in March. The parties filed the settlement agreement today; the court is expected to approve the settlement shortly. This settlement agreement will bring Behring’s lawsuit to a successful conclusion and enables EB-5 investors to begin filing now.
Behring Sues USCIS and Obtains Preliminary Injunction
Behring filed a lawsuit in April 2022 after USCIS suddenly announced on its website that all EB-5 regional centers were deauthorized and now had to file – then unpublished – Form I-956 for redesignation. This drastic action by USCIS threatened to delay the EB5 program several years (historically, new I-924 petitions for regional center designation would take an average of 3 years for approval). Behring argued that the USCIS’s unlawful actions had no legal basis in the RIA and failed to comply with the APA rulemaking process.
The federal court agreed, granting Behring a preliminary injunction and setting aside USCIS’s actions and ordering it to permit pre-approved regional centers to operate and to start accepting new I-526 petitions. While USCIS removed deauthorization language from its website, it caused further confusion when it published the new Form I-526E and required regional centers to have a I-956F receipt even before investors could file the new form.
Key Settlement Terms
Here are the key terms of today’s settlement (read entire agreement):
- Previously authorized regional centers retain their authorization.
- Regional centers must file Form I-956 before December 29, 2022 to maintain authorization.
- Previously authorized regional centers do not have to wait for I-956 approval and may immediately file Form I-956F (project approval).
- Regional centers must file Form I-956F to have their projects integrated under the new RIA system, but prior approved I-924 exemplars are binding on adjudication of the I-956F. Any changes to the business plan or other aspects of the exemplar to comply with the RIA do not constitute material changes.
- USCIS will issue I-956F receipts within 10 days of filing. But investors may rely on proof of payment or lockbox receipt as an alternative if it has not yet arrived.
- All newly published forms are considered “interim final.” This means that all EB-5 stakeholders, including regional centers, investors and immigration lawyers will be able to participate in a notice and comment period to give feedback on the new forms.
Behring Successfully Protects EB-5 Investors
Importantly, as part of the settlement, USCIS agreed it will not reject an I-526 or I-526E petition filed without an I-956F receipt between the June 24, 2022 preliminary injunction order and the settlement date. Behring recognized that many investors could not wait on USCIS to update its website or clarify the form confusion because of visa deadlines, child age-out risks, etc. They rightfully relied on the law under the preliminary injunction which allowed the filing of new I-526 petitions. These investors may inter-file the I-526E petition or I-956F receipt while protecting their priority dates.
Behring to Hold Quarterly Discussions With USCIS
Behring and the industry plaintiffs will hold quarterly talks with USCIS over the next two years over the implementation of these settlement terms. Behring intends to continue to seek clarity from USCIS on the filing of the forms so that EB-5 investors are equipped with the best information when preparing their own EB-5 petitions.
Our first item on the agenda is to simplify the filing process for new I-526E petitions. By attaching the I-956F receipt, the investor has effectively provided USCIS with sufficient information about the project without needlessly wasting time and resources to print hundreds of pages of project documents that USCIS already has on file. We want EB-5 investors to need only file the I-526E, the I-956F receipt, their source of funds documents and signed subscription agreement for the project. This would greatly improve the EB-5 process while helping the environment.
Behring thanks EB-5 Investment Coalition, Greenberg Traurig and KLD for their full support throughout this process. Today marks a major milestone in Behring’s legal advocacy in ensuring the integrity of a vibrant EB-5 Program that enables families to obtain a green card and the opportunity to achieve the American Dream, while creating full-time jobs for Americans at no cost to the taxpayer. Behring will continue to strive to improve the EB-5 program through legal and legislative advocacy. Behring’s goal is simple: we want a program that works – simply, transparently, and successfully for all stakeholders.