By 
National trade association for the EB-5 Regional Center industry, IIUSA, has filed a lawsuit against U.S. Citizenship and Immigration Services (USCIS) challenging the agency’s decision regarding regional center re-designation. IIUSA is joined in the suit by five of its EB-5 regional center members, CanAm Enterprises, Civitas Capital Group, EB5 Capital, Golden Gate Global, and Pine State Regional Center.
Following the renewal of the EB-5 regional center program after the signature of the EB-5 Reform and Integrity Act earlier this year, the EB-5 industry breathed a sigh of relief. The bill reauthorized the regional center program after it lapsed in authorization in June of 2021. However, while the bill was technically creating an entirely new regional center program, the industry assumed that regional centers which had been previously authorized would continue to operate. Instead, USCIS announced in late April that all regional centers which had existed prior to the program’s lapse in authorization are no longer authorized. Regional centers who wish to continue sponsoring future immigrant investor petitions will need to file a form I-956 to be re-designated as an approved regional center by USCIS.
The announcement of this policy was met with widespread confusion. While the EB-5 Reform and Integrity act was intended to get the regional center program back on track, USCIS’ policy on regional center re-designation means all existing regional centers will first need to wait for an approved I-956 to begin accepting investors. Prior to this announcement there were over 600 approved regional centers across America, and as per USCIS’s current policy all of them will need to be re-approved if they wish to continue operating. While it is unclear exactly how long this process might last, IIUSA’s complaint claims it would take USCIS “well over a decade”.
Additionally, regional centers who choose not to file form I-956 will no longer be under USCIS oversight. USCIS policy on re-designation was almost immediately challenged in a suit filed by Behring Regional Center, and many in the industry pointed out that the text of the EB-5 Reform and Integrity Act did not seem to support the policy.
These concerns were also expressed in the IIUSA complaint. In a joint statement the plaintiffs said, “[w]e believe Congress intended to allow regional centers to immediately get back to the business of EB-5 – while at the same time working to bring themselves quickly into compliance with the new integrity and other requirements of the [EB-5 Reform and Integrity Act]. In fact, there is consensus within the EB-5 industry that Congress intended to have the Regional Center program back in business as soon as the [EB-5 Reform and Integrity Act] was in effect on May 15, 2022.”
The complaint alleges that USCIS’s interpretation of the bill is “unlawful” and “contrary to the statue’s plain text.” Going on to say that congress intended for the bill to reauthorize “the existing [EB-5 regional center] program”, and claiming that USCIS’s actions will effectively destroy the program resulting in the loss of billions in investment and thousands of American jobs.
While it would certainly be advantageous to the EB-5 industry as a whole if the Court rules in IIUSA’s favor, it is too early to make any calls on how successful the litigation may be. In the meantime, the industry and immigrant investors will have to continue to work with the decisions made by USCIS.
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