EB-5 regional centers officially reauthorized after preliminary injunction reverses USCIS’ decision to deauthorize all regional centers
On Friday, June 24, 2022, the Federal Court in the Northern District of California granted a preliminary injunction to stop United States Citizenship and Immigration Services (USCIS) from requiring all regional centers to seek redesignation.
In April 2022, USCIS announced that all regional centers authorized under the previous EB-5 legislation would be required to re-apply for designation under the new law before they could receive investments or before any new regional center petitions could be submitted. The Behring Regional Center filed the motion for a preliminary injunction in response to the announcement, arguing that USCIS had acted contrary to law by canceling all Regional Centers and creating new forms and requirements without the proper public notice and comment period required by the Administrative Procedures Act (APA).
In Friday’s decision, the Court found that the agency had violated the APA, “was almost certainly wrong in assuming that the Integrity Act affirmatively deauthorized existing regional centers”, and almost certainly committed legal error when deciding to deauthorize them.
The Court’s decision means that EB-5 investors can now file new I-526 petitions associated with a designated regional center. More importantly, investors who make a qualifying investment through a regional center and submit their I-526 petition will be protected from future changes to the program due to the grandfather provisions included in the March 2022 reform legislation.
While the decision is a huge win for EB-5 stakeholders, USCIS has yet to release an updated Policy Manual that will give more insight into how the new ruling will reconcile with other provisions of the March 2022 reform, including the requirement that regional centers receive an exemplar approval for projects prior to receiving investments. The industry is currently assessing the impacts of the ability to file new I-526 petitions in EB-5 Regional Centers and Exeo is monitoring the situation closely. We will provide updates as they become available.
As for investors who have already submitted a regional center petition, the new ruling has no impact on processing of their applications. In March 2022, USCIS resumed processing of regional center based I-526 petitions filed on or before the sunset of the previous regional center program on June 30, 2021.
Navigating the rules of EB-5 and of US immigration is no simple task. Please contact Exeo Attorneys if you need assistance with your EB-5 immigration plans.
