On Friday, June 24, 2022, US District Judge Vince Chhabria ordered a nationwide preliminary injunction in the case of Behring Regional Center vs. Mayorkas, which has the effect of reopening the EB-5 regional center program for regional centers, projects, and investors. Ron Klasko and Dan Lundy of Klasko Immigration Law Partners served as co-counsel with Paul Hughes representing IIUSA, the regional center trade group, and its over 100 regional center members, as amicus curiae and putative plaintiff in the litigation. The Judge accepted IIUSA’s legal arguments and legal reasoning to extend relief to all regional centers and thereby reopen the EB-5 regional center program.
WHAT DOES THE JUDGE’S DECISION ACTUALLY STATE?
The Decision overturned USCIS’ position that all previously-approved regional centers lost their regional center designations upon the passage of the new EB-5 law. He ordered that, effective immediately, all previouslydesignated regional centers remain designated and authorized to conduct business until a final decision on the litigation is rendered or until USCIS engages in a process consistent with the Administrative Procedure Act regarding the status of regional centers under the new law.
WHAT IS THE IMPACT OF THE DECISION?
Any previously-designated regional center can file an I-956F project approval application immediately. Upon the filing of a project approval application, any investor in that project can file an I-526 petition based on an investment in that project. Investors do not need to wait for the approval of the project approval application – – just the filing.
WHAT IS LIKELY TO HAPPEN NEXT?
Hopefully, USCIS will accept the Judge’s decision. It is possible that USCIS could appeal the Judge’s decision or try to develop a “reasoned process” as suggested by the Judge. It is unlikely that any such process would be developed quickly or that it would have any retroactive effect. USCIS also may simply choose to continue to defend the litigation and seek summary judgment in its favor. Given the language of the Judge’s decision, that is an unlikely result. Even if that did happen, it should not retroactively invalidate petitions that were properly filed during the term of the injunction.
MUST REGIONAL CENTERS FILE I-956 FORMS OR WAIT FOR THE APPROVAL OF PENDING I-956 APPLICATIONS?
Since the impact of the Judge’s decision is that regional centers authorized under the previous law remain authorized under the new law, they do not need to file an I-956 form in order to sponsor a project or investors. If they filed an I-956 form before the Judge’s decision, they do not have to wait for the approval.
WHAT SHOULD REGIONAL CENTERS DO NOW?
Regional centers should confer with their immigration counsel to determine if they wish to proceed with the filing of I-956F for a project and if they wish to accept investors’ investments and have investors file I-526 petitions. Of course, all such actions must be consistent with the EB-5 Reform and Integrity Act of 2022, including the marketing and securities compliance provisions. Offering documents may need to reflect any issues and risks resulting from proceeding based on the nationwide injunction.