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【ARCFE News】 LAWSUIT AGAINST USCIS: JUDGE SAID USCIS MAY HAVE COMMITTED LEGAL ERROR

RECAP

USCIS claims that their interpretation of the Act was based on Senator Grassley’s (co-author of the Act) word choice. The immigration agency sees the EB-5 Regional Center program after March 15, 2022 (date Congress passed the Act) as a brand new program that requires all Regional Centers to get recertified. Thus, the agency is withholding adjudication of all new Regional Center I-526 petitions. The EB-5 industry, on the other hand, worries that the redesignation process will take too long considering that there are more than 600 active Regional Centers across the country. This will result in a loss of business and will cause economic harm, which led to multiple Regional Centers to file lawsuits against USCIS.

BEHRING V. USCIS

On June 2, 2022, Behring Regional Center and USCIS had a second hearing with Honorable Judge Vince Chhabria regarding USCIS’ interpretation of the EB-5 Reform and Integrity Act of 2022 (“the Act”) by requiring recertification for all Regional Centers, including previously authorized ones.

Behring (Plaintiff) claims that the language in the Act stating that previously approved Business plans, including the Regional Centers’ projects continue to be approved and binding is “pretty good evidence that Congress didn’t rip up the Regional Center license”, and by grandfathering the RC Business plans, the Regional Centers should also be grandfathered.

USCIS (Defendant) claims that the language specifically aims to protect investors and not Regional Centers, and that “At the end of the day, the investors are the ones that have the I-526 and I-829 petitions with USCIS.”

After two rounds of hearing for the Behring’s lawsuit against USCIS, Honorable Judge Chhabria acknowledged both sides’ arguments that:

[1] It’s a bit of an exaggeration to say Congress “plainly intended for RCs to continue to be authorized”, and felt that it was ambiguous.

[2] “USCIS may have committed legal error by being way too quick to assume the language of the Act means that Congress requires us to treat the RCs as having been deauthorized.”

Judge Chhabria also “appears to agree that Congress did not intend to halt the program for a significant length of time,” said Mona Shah from Mona Shah & Associates Global.

The June 2 hearing concluded with each party being asked to submit a 10-page brief on what the relief would be in the case that Judge Chhabria ruled that the statute is “silent at best”. Both briefs were due Monday June 6.

The second lawsuit against USCIS filed on May 24, 2022 by a group of Regional Centers and the EB-5 organization Invest in the USA (“IIUSA”). IIUSA withdrew from this second lawsuit on June 5, 2022, and has filed a Motion to Intervene in the Behring’s lawsuit against USCIS using the same legal arguments originally used in this second lawsuit.


A third hearing is scheduled for July 14, 2022 at 5:30 PM EDT with Honorable Judge Chhabria on IIUSA’s Motion to Intervene.

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 with the latest news.

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