EB-5 investment: Behring Regional Center obtains favourable injunction against re-registration

Behring Regional Center, an EB-5 regional center has been successful in obtaining a preliminary injunction from a US district court (Northern District of California), which debars the US Citizenship and Immigration Services (USCIS) from deauthorizing previously designated regional centers.
The EB-5 Regional Center program, which had lapsed on June 30, 2021, was given a fresh lease of life as the US Congress enacted the Reform and Integrity Act (RIA) in March 2022, reauthorizing the same, but with higher investment limits and added safeguards for investments.
However, soon after the reauthorization of the program, USCIS introduced a requirement for existing regional centers to redesignate themselves (obtain a fresh registration).
The requirement for redesignation of existing centers derailed the program and caused considerable anxiety among those aspiring to opt for a green card under this route. This requirement was challenged by Behring Regional Center, later another lawsuit was filed by a group of five regional centers.
This lawsuit challenged the unilateral deauthorization by USCIS of the over 600 designated regional centers existing at the time that the RIA was enacted into law, as well as the USCIS interpretation of the RIA that requires every regional center to apply anew for designation and receive approval as such before commencing operations. The lawsuits pointed out that the agency’s guidance violates the Administrative Procedure Act (APA) and misinterprets the new EB-5 law enacted by Congress.

Over the years, the EB-5 program (investment-linked green card program) has become very popular among high-net-worth individuals based in India and Indian nationals holding H-1B visas. Against an investment of ($8000,000 in designated areas and $ 1,050,000 in other regions), it offers a comparatively quicker route to a green card. Nearly 90% of investments are routed via regional centers, rather than under the direct route – as the latter requires investors to carry on their own business and hire American workers.
Commenting on the preliminary injunction granted by the district court, Invest in the USA (IIUSA), a trade association for the EB-5 Regional Center Program, states, “USCIS is preliminarily enjoined from treating as deauthorized the previously designated regional centers based on its almost certainly erroneous interpretation of the Integrity Act.”
“ Of course, the agency may do whatever is reasonably necessary to ensure that existing regional centers comply with the Integrity Act, but those centers must presently be permitted to operate within the regime of the Act,” adds IIUSA

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