DOJ Opposes Trade Group’s Entrance Into EB-5 Lawsuit

Recently, in a lawsuit against U.S. Citizenship and Immigration Services (USCIS), the Department of Justice (DOJ) argued that allowing a trade group to join would be disruptive. In this lawsuit, the plaintiff seeks the USCIS to reverse its recent changes to the program. This reversal would require regional centers to become reauthorized to continue participating under the EB-5 program.

The trade group deemed disruptive by the DOJ is an advocate for over 100 regional centers. Hence, its attempt to intervene in the ongoing federal lawsuit filed by one regional center. The lawsuit argues that USCIS exceeded its authority by trying to withdraw the authorization of previously authorized regional centers. This decision has adversely impacted ongoing projects.

The DOJ explains how permitting the trade group to intervene may bog and delay motions for summary judgment. It says the trade group is interested in this lawsuit for self-serving purposes. For example, if the action calls for a narrow injunction, its members would benefit because it gives the involved parties the power to handle EB-5 investments. The DOJ emphasizes how such a benefit may still result in the same issue because a limited group of involved parties would gain a competitive advantage over others in the industry.

The decision by USCIS to require regional centers to be reauthorized, which USCIS announced through its website earlier this year, left existing regional centers unable to continue acting as an intermediary between interested foreign investors and U.S.-based developers.

This decision came less than a month after the EB-5 Reform and Integrity Act of 2022 was signed into law. The decision reauthorized the program for five years, restored lapsed portions of the bill, and included authorizing regional centers to operate.

Under the EB-5 program, investors who provide at least $900,000 to a project that creates a minimum number of jobs for U.S. residents can receive a green card. Investors use regional centers to avoid creating a project, counting directly and indirectly created jobs to the required quota.

The case against USCIS claims that requiring regional centers to become reauthorized would be a 5- to 10-year process. During this time, the plaintiff would have to continue paying USCIS fees due to ongoing projects. In its motion to join the lawsuit, the trade group states its application is timely because the regional center that filed the case is ill-equipped to represent its interests.

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