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Court Warns USCIS About EB-5 Policy

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San Francisco, June 3, 2022: News from the Behring Regional Center lawsuit from the federal court in San Francisco appears to indicate that USCIS will lose its efforts to require EB-5 regional centers existing prior to March 15, 2022 to apply to USCIS for re-certification or lose their operating licenses.
Behring Regional Center is challenging a key USCIS interpretation of the EB-5 Reform and Integrity Act of 2022 that was enacted on March 15, 2022. Shortly after enactment, USCIS issued a policy statement requiring requiring all pre-enactment EB-5 regional centers to apply to USCIS for re-certification or face lose their license to operate. Essentially, with the stroke of a pen, USCIS de-certified every regional center.

Theissue raised by Behring Regional Center — correctly, in the opinion of Donoso & Partners — is that the EB-5 Reform and Integrity Act does not state such a rule in any of its 100+ pages of new provisions. And, frankly, it provides precisely the opposite of that in several key areas — albeit without any specific mention of the status of previously approved regional centers.

If the court rules against USCIS — as it appears poised to do — the impact for regional centers and investors is that existing regional centers can now apply for a Business Plan Approval (on the new Form I-956G released yesterday) and immediately thereafter begin accepting new EB-5 investors.

This would be significant news to an industry that has been unfairly held up by this new USCIS policy.

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