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Recent litigation regarding the U.S. EB-5 Regional Center Investor Immigration Program has met with some success. United States District Judge Vince Chhabria for the Northern District of California ruled that United States Citizenship and Immigration Services (USCIS) actions related to pre-existing EB-5 Regional Centers were arbitrary and capricious. He granted an application by the Behring Regional Center for a nationwide preliminary injunction blocking the USCIS from “treating as deauthorized the previously designated regional centers” and requiring that those centers be allowed to function under the rules created by the new EB-5 Reform and Integrity Act which, “includes processing new Form I-526 petitions from immigrants investing through previously authorized regional centers.”
What Does The Case Mean For Foreign Investors?
It may be helpful to lay out more clearly what this all means for foreign investors interested in coming to the United States by making an $ 800,000 U.S. investment in an EB-5 Regional Center project.
Firstly, just to reiterate, all the existing pre-authorized Regional Centers that were in business before the enactment of the EB-5 Reform and Integrity Act of 2022 will continue to be able to sponsor EB-5 foreign investors with applications for green cards. Before the ruling came down, there was some despair among EB-5 attorney practitioners that the procedures the USCIS was adopting to follow the requirements of the new Act could make the whole process unworkable. The ruling reopened the likelihood that the processing of applications will be reasonable again. Indeed, expressing his reaction to the court development, Bernard Wolfsdorf, an LA-based immigration lawyer and Past President of the American Immigration Lawyers Association predicted,“There will be a frenzy of filings with all the pent-up demand.”
Concurrent Filing Of An Adjustment Of Status Application Possible
What is especially attractive under the new legislation is that foreign investors currently in the United States can file a Form I-485 application to adjust status to permanent residence, a Form I-765 application for employment authorization and a Form I-131 travel approval—all concurrently with their EB-5 I-526 petition, so they can live, travel, and work in the USA and send their kids to school. The ruling also means that those investors who invest in these legacy pre-authorized Regional Centers will also be able to take advantage of these new developments.
Legacy Regional Centers Are OK
The I-956 forms formerly required from Regional Centers and used to theoretically ‘update’ old pre-authorized Regional Centers ostensibly to comply with the USCIS view of the modernizing legislation, will no longer be required. Instead, those Regional Centers with USCIS I-924 exemplar approvals and availability to accept new investors will be able to support new EB-5 investor I-526 petitions. It is speculated that the decision will even make it possible for Regional Centers that do not have exemplar approvals to also be able to proceed along similar lines.
Why It’s Time To Apply
For these reasons, from an immigration point of view, it makes little sense for foreign investors to hesitate since the door is open to them. Almost all Visa Bulletin categories are current at the moment. This is especially relevant for those investors who are from countries like China and India, where soon pent-up demand is likely to create long backlogged waiting lines for such applicants. While there could still be new issues that might arise as the USCIS opens up the renewed EB-5 program, hopefully those will be sorted out as cases are processed.
Final Steps – Wrap Up
That said, however, it is important to add that the Behring decision is not yet the final word in this matter. It may very well be appealed by the USCIS. They have 30 days from the date the decision was rendered to file. Still, until such an appeal is filed, the opportunity for investors to apply for green cards remains open. Furthermore, attorneys for the Behring Regional Center will likely be bringing an application for summary judgment in that case. A summary judgment will help to further clarify the confusion over the renewal of the Regional Center program and whether older pre-authorized Regional Centers will have to re-register. What is more, such a decision will add an element of certainty to the program and will also make any appeal of the USCIS moot. If the wording of Judge Chhabria in the Behring case is any indication, the decision on the summary judgment application will likely be the same as that of preliminary injunction and the USCIS will have to keep the program going as it finds different ways to enforce the integrity and other measures contained in the new Act.