US Immigration in the Courts: A Big Win for EB-5 Regional Centers and Investors

In what is likely one of the least controversial court decisions in the news lately, on June 24, 2022, the United States District Court for the Northern District of California in Behring Regional Center LLC v. Mayorkas ordered US Citizenship and Immigration Services (USCIS) to allow previously designated EB-5 Regional Centers (RCs) to continue to function in line with the requirements of the recently-enacted EB-5 Reform and Integrity Act (RIA).

Created by Congress in 1990, the EB-5 Immigrant Investor Program was intended to stimulate the US economy through job creation and capital investment by foreign investors. An EB-5 RC is an organization designated by USCIS for investors and companies looking to complete a project under the EB-5 Program. A regional center can be any private or public economic entity that is involved with the promotion of increased domestic capital, job creation, improved regional productivity, and increased economic growth.

To much fanfare amongst immigration wonks and investors, the RIA was enacted by Congress and signed into effect on March 15, 2022, renewing the EB-5 Investor program for five years after it had previously lapsed in June 2021. Nearly one month after the enactment, USCIS abruptly announced that all previously existing RCs were no longer authorized and that any previously approved RCs must file a new RC Application (Form I-924) and wait for approval prior to starting new projects and sponsoring new EB-5 investors. The Behring lawsuit was filed by a RC and the EB-5 Investment Coalition two days later.

The order issued in Behring in favor of the plaintiff puts a nationwide preliminary injunction in place, meaning that RCs may immediately accept new investors through filings of Form I-526 as of the decision’s effective date. While this is likely not the end of litigation as the lawsuit continues, this will undoubtedly be very welcome news to many existing and prospective EB-5 investors, and the MPC Immigration Team will continue to provide updates on this matter as they become available.

Stay tuned for the latest from the MPC immigration team as we closely monitor these expansions and for any other significant changes in US and Canadian immigration!