On June 24, US time, in response to the Behring lawsuit, the judge issued an injunction , halting the policy that the Immigration Service’s regional centers must be reauthorized in accordance with the new EB-5 bill.
Background review:
In March 2022, Congress enacted the EB-5 Reform and Integrity Act, and the EB-5 Regional Center Program was reauthorized. The U.S. Citizenship and Immigration Services (USCIS) interpreted the bill to explicitly revoke the authorization of more than 600 previously approved regional centers. As a result, the agency declared the existing regional center inoperative.
Behring Regional Center operates in California under the original plan approved by Congress in 1992.
The Behring Regional Center filed the lawsuit after USCIS declared the previously designated regional center invalid. Claiming that USCIS erroneously interpreted the Integrity Act to revoke the authorization of existing regional centers, its announcement was arbitrary within the meaning of the Administrative Procedure Act (APA).
Behring applied for a temporary restraining order (temporary restraining order), requesting the USCIS not to treat it and other regional centers as invalid, and should resume processing new visa applications for immigrant investors investing through regional centers (i.e., "I-526 applications").
The court believed that the case was not so urgent. Both parties agreed to change the request for a temporary restraining order to a preliminary injunction and submit further materials before May 23. The court will make a judgment on the injunction in June. .
The judgment issued by the judge today shows that in fact, the new bill is silent or ambiguous on the issue (regional centers). Some parts of the bill indicate that Congress does not intend to cancel the authorization of existing regional centers.
Given Behring's likelihood of success (having a strong cause of action with a high likelihood of winning the lawsuit), the danger of irreparable harm (that could be caused by delays in the reauthorization process), and seeing federal agencies follow In the public interest of the Administrative Procedure Act (APA), Behring has satisfied the requirements for a preliminary injunction.
The judge held that:
1. The new EB-5 bill does not clearly state anywhere that the original regional centers have lost their authorization. Even if the new bill has replaced the old law, the old law has become invalid;
2. Even on July 1 last year, During the EB-5 suspension period before the new law took effect on March 15 this year, during this gray period, both the USCIS and the plaintiff believed that the original regional center continued to maintain its authorization.
So since the regional centers did not lose their authorization before the new law took effect, and the new law does not specify anywhere that the regional centers lost their authorization due to the new law taking effect, the USCIS believes that all the original regional centers have lost their authorization and need to go through a new reauthorization process. It is obviously arbitrary and illegal.
In fact, during the second hearing, the judge had already made a similar statement. What is more difficult for judges is how to award damages.
The judge did not specify in the injunction what the immigration authorities should do next. Does the regional center need to continue to submit the I-956 regional center authorization application form while it can operate normally and recruit new investors? Or can it continue normal operations without applying for reauthorization and only needs to meet the regional center requirements under the new law? Compliance requirements are sufficient. It will be up to the Immigration Department to formulate appropriate policies next.
However, the judge made it clear in the injunction:
1. The authorizations of all more than 600 original regional centers continue to be valid;
2. Under the original regional centers, new I-526 applications are valid and must be approved.
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