Settlement Agreement Provides Clarity And Stability For The Recently Reauthorized EB-5 Regional Center Program – Work Visas

Key Points:

  • USCIS’ deauthorization of previously approved EB-5 Regional
    Centers has been rescinded, and the EB-5 program is once again
    active.

  • EB-5 investors will no longer be required to wait several
    months for USCIS to issue a receipt notice for the project filing
    (Form I-956F) before filing their immigrant investor petition (Form
    I-526E).

  • USCIS will deem the newly released EB-5 program forms as
    “interim” until the agency undertakes the
    notice-and-comment process and finalizes the forms.

Background

The EB-5 visa classification is a distinct type of U.S.
permanent residence (a “green card”) issued through the
Immigrant Investor Program. In order qualify for an EB-5 visa,
immigrant applicants must “make the necessary investment in a
commercial enterprise in the United States; and plan to create or
preserve 10 permanent full-time jobs for qualified U.S.
workers.”1

Congress established the EB-5 visa program in 1990 as a strategy
for revitalizing the U.S. economy. In 1992, the regional center
program began issuing EB-5 visas for participants who invested
through U.S. Citizenship and Immigration Services (USCIS)-approved
regional centers based on proposals for promoting economic
growth.2 Since the program’s inception and until the
end of 2020, Congress continued to reauthorize the EB-5 regional
center program— sometimes one year at a time— as part
of the appropriations process.

In December 2020, the program was decoupled from the
appropriations process and was authorized only through June 30,
2021. Over the years, there had been allegations of instances of
fraud and abuse by regional centers, and following multiple failed
efforts to reform and implement integrity and oversight measures
for the program, it ultimately lapsed on June 30, 2021.

After a lapse of approximately eight months, Congress was
finally able to reach an agreement on legislation that would
provide stability with a long-term reauthorization for the regional
center program and implement significant integrity measures and
increased oversight. On March 15, 2022, President Biden signed the
EB-5 Reform and Integrity Act (“Integrity Act”) into law
as part of the Consolidated Appropriations Act, 2022 (Public Law
117-103).

Litigation

The law included a 60-day implementation period to enable USCIS
to begin processing EB-5 filings that had been on hold since the
beginning of the lapse. Inexplicably, however, during the 60-day
period, USCIS stated that “all previously approved regional
centers” (those authorized by USCIS prior to enactment of the
Integrity Act), were categorically deauthorized.3 The
agency’s sudden decision to deauthorize all existing regional
centers resulted in a legal challenge. Behring Regional Center
filed suit contending that the “agency wrongly interpreted the
Integrity Act as deauthorizing existing regional centers and that
the agency’s announcement was arbitrary and capricious within
the meaning of the Administrative Procedure Act.”

On June 25, 2022, Judge Vince Chhabria granted the
plaintiff’s motion for a temporary injunction enjoining USCIS
“from treating as deauthorized the previously designated
regional centers.” In his order granting the temporary
injunction, Judge Chhabria suggested that the plaintiff was
“exceedingly likely (if not certain) to prevail on the merits
of its claim that the agency’s decision is arbitrary and
capricious under the Administrative Procedure Act.”

Attorneys for USCIS did not appeal to have the temporary
injunction lifted, and subsequent filings in the case noted that
the parties were in negotiations to settle the case.

Settlement Terms

A settlement agreement was filed with the court on August 24,
2022 and is pending final approval. The settlement agreement
confirms that previously approved regional centers remain
authorized to operate. However, to maintain authorization in the
future, all previously approved regional centers, that have not
already done so, must submit a Form I-956, Application for Regional
Center Designation (as an amendment) and the filing fee by December
29, 2022. Previously authorized regional centers do not need
approval of their Form I-956 before filing a Form I-956F,
Application for Approval of an Investment in a Commercial
Enterprise.

Moreover, in light of USCIS’s ongoing delays with issuing
receipt notices yet requiring a receipt notice for a Form I-956F
before an investor could file their Form I-526E, Immigrant Petition
by Regional Center Investor, the issue was raised in court and
addressed in the settlement agreement. If a receipt notice is not
issued within 10 calendar days of filing a Form I-956F, an
immigrant investor may file their Form I-526E with alternate
evidence that the Form I-956F was indeed filed, for example, proof
of USCIS cashing the check for the filing fee.

The settlement agreement also confirms that previously approved
regional centers will be governed under the terms of the Integrity
Act and are required to file a Form I-956F for previously approved
projects (for which they had previously filed the Form I-924,
Application for Regional Center Designation Under the Immigrant
Investor Program, also referred to as “an exemplar”).
However, the settlement explicitly notes that the purpose “is
to assimilate the project’s information and documents
consistent with the Integrity Act” and not to re-adjudicate
any aspect of a project previously approved in the exemplar.

Finally, the new forms that USCIS has published in furtherance
of implementing the Integrity Act will now be deemed as
“interim” until USCIS undertakes notice-and-comment
rulemaking. This will allow for genuine input from stakeholders and
interested parties.

Conclusion

The EB-5 program has been a significant source of private
investment in the United States for many years. According to an
analysis conducted by Invest in the USA (IIUSA), the national trade
association whose members are EB-5 regional centers, “between
2008 and 2021, the EB-5 program helped generate $37.4 billion in
foreign direct investment to create and retain U.S. jobs for
Americans, all at no cost to the taxpayer.”4 Judge
Chhabria noted that, in its original interpretation of the new law,
“USCIS thought itself compelled by the Integrity Act to treat
the existing regional centers as deauthorized, even though the Act
does not require that outcome,” but this settlement restores
the program and allows regional centers to continue facilitating
investment in the United States with the goal of creating more
American jobs.

Footnotes

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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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