UPDATED 5-10-22: US Congress Instructs USCIS on RC Continuity

[NOTE: THIS IS A DEVELOPING STORY BEING UPDATED. THE ORIGINAL BLOG ENTRY OF 05-09-22 APPEARS AT THE BOTTOM ]

UPDATE 05-10-22: As the below article was being posted yesterday, a bipartisan group of Congressional members including Congressman Jerry Nadler, Senator Charles Schumer, Senator John Cornyn and Senator Lindsey Graham issued a letter directed to USCIS and Department of Homeland Security Director Alejandro Mayorkas expressing Congress’ express intent in enacting the EB-5 Reform and Integrity Act of 2022 and specifically condemning USCIS’ position that existing, approved EB-5 Regional Centers were nullified by the passage of the new law. The Congressional letter, explicit in its instructions to USCIS, states that “requiring all [approved] regional centers to go through a process to be redesignated is not required under the EB-5 Reform and Integrity Act of 2022“.

This critical letter of support from Congress comes at an invaluable time as the Behring lawsuit seeking a Temporary Restraining Order barring USCIS from implementing its draconian and fundamentally-flawed interpretation of the new law is scheduled to be heard in court this week. The highly unusual bipartisan letter reflects the collaborative nature of the new law and the EB-5 industry’s extensive and clear understanding with Congress in making the new law a reality.

It remains to be seen whether this powerful clarification will result in USCIS’ immediately rescinding it’s defective interpretation of the law and acknowledge that existing approved EB-5 Regional Centers REMAIN approved and merely need to meet the increased reporting and scrutiny standards of the new law or whether the Behring litigation will continue. But it is clear and reassuring that both the EB-5 industry and Congress are on the same page. The one question begged is this: given the Biden Administration’s rapid and extensive efforts to reinvigorate USCIS adjudications after the prior administration’s efforts to effectively stymie legal migration, how was it even possible for USCIS to miss the mark so widely in its initial interpretation of what is a very clearly worded law? Stay tuned….

05-09-22 As a USCIS-approved EB-5 Regional Center authorized back in 2011, AVSRC has cut its teeth over the past 11 years, delivering permanent residency and divesting its EB-5 investors while continuously adjusting to the erratic policy changes affecting the EB-5 Immigrant Investor visa category.  I thought I’d seen it all but I nearly fell out of my chair when USCIS recently announced its stunningly short-sighted and terrible new policy affecting long-proven and vetted EB-5 Regional Centers like AVSRC.

Here’s the background if you need it: after the expiration of the EB-5 program in June of 2021 left thousands of investor families, U.S. developers, and U.S. Regional Centers paralyzed, on March 15th, 2022 Congress enacted the EB-5 Reform and Integrity Act of 2022, setting out the date of May 15th, 2022 as the new date when the regional center program could once again become operational.  Accordingly, for the past two months approved EB-5 Regional Centers like AVSRC have been working furiously with our attorneys, economists, business plan writers and developers to meet all of the much-needed/long-delayed “transparency” measures enacted in the new law and designed to protect the interests of the EB-5 investors whose money ultimately makes U.S. job creation possible.

That unexpectedly hit a wall last week – as in me almost flying out of my chair moment – when USCIS announced that existing, approved Regional Centers would have to file entirely new applications with USCIS, Form I-956, Application for Regional Center Designation (which they have yet to produce.)  Even worse, existing, approved Regional Centers would have to wait for USCIS approval of their I-965 applications.  Given the glacial pace of historical EB-5 processing timelines, these mandates effectively eliminate the ability of existing, approved EB-5 Regional Centers to proceed with long-deferred EB-5 projects with investors ready to invest. This arbitrary announcement has threated to effectively sideline the entire Regional Center program indefinitely if it manages to become policy.

But I don’t expect that to happen. Behring, one of the EB-5 industry’s noblest warriors in fighting bad government decisions, immediately filed a lawsuit in U.S. Federal Court, demanding a “Temporary Restraining Order” (TRO) against USCIS to keep the agency from enforcing this completely unlawful “de-authorization” of approved and compliant Regional Centers.  As Behring so plainly puts it in their lawsuit:

“Plaintiff files this complaint because of USCIS’s recent arbitrary and unilateral deauthorization of regional centers”

And that is EXACTLY what it is: arbitrary. The USCIS’ retroactive application of the new law to impact long-approved EB-5 Regional Centers is a clear and complete violation of the Omnibus Act and the Integrity Act, both of which assure that existing regional centers are to remain designated as such. American Venture Solutions Regional Centers will ALWAYS comply with U.S. law but we vigorously disagree with the de facto retroactive “un-certification” of long-approved and proven Regional Centers. 

Based on the glaring violation of due process and administrative norms, I am optimistic that Behring will be successful in securing the TRO and that veteran, proven EB-5 Regional Centers like AVSRC will NOT be back to square one.  Meanwhile, AVSRC continues to educate prospective investors on our new River Oak EB-5 project and we look forward to soon welcome our exclusive group of 25 new EB-5 investors!

Attorney José E. Latour

Tags: