A group of Regional Centers along with the EB-5 organization INVEST IN THE USA (IIUSA) has recently filed a lawsuit against United States Immigration and Citizenship Service (USCIS) attempting to block the agency’s attempt to require all Regional Centers to get reauthorized. This is the second lawsuit filed regarding this matter, following the Behring and Greenberg Traurig lawsuit filed a few weeks back. In this article, we will cover the full scope of the current situation.
RECAP
On April 29th, USCIS published a Q&A right before their confusing listening session, detailing that the agency now requires all Regional Centers to file Form I-956 to get redesignated, and the respective Regional Center’s I-956 must be approved prior to any I-526 can be filed. The immigration agency recently published form I-956 and its instructions on May 13th.
LAWSUIT 1: BEHRING V. USCIS
The first lawsuit was filed on April 22nd, 2022 in the U.S. District Court for the Northern District of California by Behring Regional Center LLC (“Plaintiff”) against USCIS (“Defendant”). It claims that the Defendant violates the Administrative Procedure Act and Congress’ intent of restarting the EB-5 Regional Center program by requiring all Regional Centers to get reauthorized.
LAWSUIT 2: REGIONAL CENTERS & IIUSA V. USCIS
A group of Regional Centers and IIUSA joined together to file an Initial Complaint in the U.S. District Court for the District of Columbia against USCIS, stating that the recent guidance published on the agency’s website is unlawful. This lawsuit was prepared by Klasko Immigration Law Partners LLP. Most of the reasoning in this complaint was very similar to the Amicus Brief in the Behring case, which was unsurprising considering that they are also the legal team that prepared the previous document.
SOME KEY POINTS OF THE SECOND LAWSUIT’S INITIAL COMPLAINT
Deauthorizing over 600 EB-5 Regional Center contradicts the clear statutory text of the EB-5 Reforms Act 2022 and the clear intent from U.S. Congress for the Regional Center program to return with changes effectively implemented.
The new anti-fraud and integrity measures in the Act were supposed to be an add on for the pre-March 15th Regional Center program, not directly contradict the pre-existing one. This is a significant point as USCIS has been referring to the post-March 15th EB-5 Regional Center program as a brand new program.
Congress’ intent for the Act was to add more protection to the EB-5 Regional Center investors.
Previously approved Regional Centers already meet the requirements of being a “Regional Center” as written in the Act. The Act itself does not create a new set of requirements that contradicts or differs from the existing one.
The Act includes language that previously approved Regional Centers’ business plans must be binding in future adjudications. Considering this, all previously approved Regional Centers must stay authorized.
The Act was designed to deauthorize Regional Centers that do not comply with the regulations, not unilaterally deauthorize all Regional Centers.
The 60 days immediately after the passing of the Act on March 15th shows that Congress intended for the EB-5 Regional Center program to continue, and not for USCIS to implement a new Regional Center program.
The word “reauthorization” used in the Act points to the reauthorization of the existing Regional Center program with reforms mentioned in the Act.
The repealed section of the pre-March 15th Regional Center program does not mean deauthorizing all existing Regional Centers.
USCIS’ interpretation of the EB-5 Reforms Act 2022 contradicts the clear intention of Congress and the agency fails to address the concerns of the EB-5 Regional Center industry.
WHAT COULD HAPPEN ON JUNE 2ND?
We are expecting a hearing with Honorable Judge Chhabria with a ruling on the Motion for a Preliminary Injunction for the First Lawsuit of Behring V. USCIS.
Scenario 1: Judge rules in favor of the Plaintiff (Behring)
The Second Lawsuit from the group of five Regional Centers & IIUSA against USCIS would most likely be withdrawn, considering that it brings forward very similar arguments.
Scenario 2: Judge rules in favor of the Defendant (USCIS)
The Second Lawsuit would move forward and would likely schedule a hearing in June. We can expect a ruling as early as early July.
ARCFE HAS FILED FORM I-956
ARCFE is one of the first Regional Centers to file form I-956 for Regional Center reauthorization. While we do hope that both lawsuits can bring positive news to the Regional Center program by dismissing the reauthorization requirement and reducing the waiting time, our management team wants to ensure that regardless of the outcome, we are prepared to move forward. At this time, we are waiting for the result of the lawsuits, as well as any updates from USCIS regarding redesignation of Regional Center as a whole, and our I-956 case respectively. We are working closely with our Attorney to prepare necessary documents to file the project and TEA request as soon as possible.
We will continue to update you on the latest information.
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