USCIS Has Reached an Agreement with EB-5 Regional Centers

The US Citizenship and Immigration Services, Behring Regional Center LLC, numerous top EB-5 regional center owners, and Invest in the USA reached an agreement. The settlement, which includes two lawsuits, has ultimately restored the EB-5 program by reauthorizing previously established regional centers and protecting EB-5 investors.

“The outcome of this case is incredibly important because it corrected an error, the law was on our side and the industry and investors were rewarded for standing their ground,” Colin Behring, CEO of the Behring Companies, states “ The industry does not have to operate in fear or be bullied into accepting tragically wrong interpretations of legislation and suffering from potentially catastrophic actions of just a few people.”

The Court States that USCIS Erred in the EB-5 Suit

The Court determined that USCIS's conduct had a detrimental impact on the EB-5 sector and EB-5 investors.

“The decisions and comments made on record that proved our second lawsuit's argument correct asserting that the Regional Center program (previously regarded as “Section 610 a”) never actually expired on June 30, 2021,” Behring claims. “The industry was robbed of over 15,000+ visas that year.”

According to Behring, the settlement demonstrates that the EB-5 sector can effectively defend EB-5 investors when required.

Effects of the RIA on the EB-5 sector

The Regional Center Program intended to be reauthorized under the EB-5 Reform and Integrity Act of 2022 (RIA), was signed into law on March 15, 2022. However, the USCIS deauthorized previously approved EB-5 Regional Centers, forcing them to reapply for redesignation.

“The biggest and most important takeaway is that regional centers approved before the RIA was enacted can continue to do business without completely shuddering and reopening from scratch,” explains IIUSA executive director Aaron Grau. “Avoiding that outcome was why the lawsuit was filed and that is exactly what was achieved.”

The settlement specifies that previously approved regional centers will keep their authorization and must file Form I-956 by December 29, 2022, including a filing fee, to sustain authorization.

“The settlement provides very specific guidance to previously authorized regional centers on the path forward in terms of what is expected of them to come into compliance with the RIA,” Lulu Gordon, senior vice president/general counsel of EB5 Capital, concurs.

What Does the EB-5 Settlement Imply?

According to the settlement, previously authorized regional centers are not required to wait for Form I-956 approval, and they can file I-956Fs immediately, and if they do not receive a receipt notice within 10 days, investors can use a lockbox receipt, cashed check, or credit card charge as proof from the regional center.

USCIS will not reject an investor's I-526 or I-829 petition if a previously approved regional center fails to file a Form I-956 application or revision.

Regional centers and projects must report on the utilization of investor funds regularly. The regional center must hire a fund administrator or have an audit of the investor's money performed. If a regional center closes, an investor has six months to locate a replacement regional center before losing their place in line. If job creation is delayed, the investor gets an extra year to document employment creation. These are only a handful of the numerous new investor protections.

The agreement protects current regional center-sponsored investors who do not wish to continue operating or sponsoring new projects under the RIA framework. The settlement reaffirms that petitions filed by legacy investors will be handled following the laws in force at the time of filing.

Behring also mentioned another significant advantage, which is the potential for direct quarterly contact with USCIS on the settlement's execution.

“It is an explicit term within the settlement itself,” Behring explains. “This communication will be crucial to making sure the EB-5 industry is truly back in business and operating effectively. Our investors, and the whole EB-5 industry, will benefit tremendously.”

USCIS Must Communicate EB-5 Modifications.

USCIS is scheduled to change its website, forms, and FAQs soon to comply with the settlement terms.

Behring claims that contact with USCIS “will be crucial to building the new operating manual for the industry because trying to clarify everything just through reading the tea leaves in individual adjudications as they come in means you don’t have a well-vetted plan until years down the road.”

He claims this participation will expedite things and give the sector "a few years of stable operating environment and then carry that positive momentum into the next legislative cycle." He observes that for the first time in a decade, they were able to put the regional center program on solid ground.

“We now will turn focus to our direct quarterly engagement calls with USCIS to maximize the positive outcome of this settlement,” states Behring.

Another takeaway from the settlement, according to Gordon, is "the spirit of cooperation demonstrated by USCIS," which she thinks marks the beginning of an age of collaboration between USCIS and industry stakeholders "that will create a stable and thriving EB-5 program."

Even if everyone signed the settlement agreement, it is not a formal settlement until it is approved by the court.

“Because this will be a court-approved settlement, the court will oversee the settlement and can enforce the settlement terms against USCIS if necessary,” Gordon says.

According to Grau, the regional center program can go on with economic growth and job creation, while EB-5 investors may rest certain that they are adequately safeguarded.

“EB-5 is safer for investors now because the regional centers on which they rely to facilitate their investments and in many instances their actual visa application process will remain healthy, active, and available to continue that support and remain accountable to assure the RIA integrity measures and investor protection,” Grau claims.

Note: This website's content is meant to be general; it does not constitute legal or financial advice. Only a licensed expert with a total understanding of all the information and circumstances of your specific situation can provide legal or financial advice. Before enrolling in the EB-5 program, you should contact a visa attorney with legal, immigration, and financial knowledge.