Federal Court Issues Injunction Re-Authorizing EB-5 Regional Centers

A lawsuit filed against U.S. Citizenship and Immigration Services (USCIS) concerning its deauthorization of EB-5 regional centers has resulted in an injunction against the agency. In addition, the Federal Court for the Northern District of California has ordered USCIS to stop treating previously authorized regional centers as de-authorized and continue allowing the organizations to operate.

The issues behind this case began soon after Congress reauthorized EB-5 Regional Centers through the EB-5 Reform and Integrity Act of 2022 after a lapse in the EB-5 program’s Congressional permission. As a result, USCIS announced online that it would require the regional centers that had received authorization before the lapse in authorization to apply and go through the authorization process to continue receiving new EB-5 investments.

In response to these new requirements, a California-based regional center filed a lawsuit against USCIS challenging these requirements. The lawsuit accused USCIS of violating the Administrative Procedure Act (APA) and misinterpreting the new EB-5 law enacted by Congress in issuing its guidance unilaterally de-authorizing the more than 600 designated regional centers existing at the time Congress reauthorized the program. A preliminary injunction has now been issued, overturning these redesignation requirements pending a final ruling.

This preliminary order will have a significant effect on the EB-5 Regional Center Program as well as EB-5 investors’ ability to live and work in the U.S. Some of these changes include:

  • Filing I-526 Petitions: I-526 petitions may be filed immediately without a prior I-956 form and provide benefits if an existing business plan has been filed. Regional Centers which were de-authorized under USCIS’s recent decisions are newly reauthorized to accept new investors for projects with I-924 exemplar approval and can adjudicate I-526 petitions.

  • Concurrently Filing Forms I-526 & I-485: EB-5 investors will be capable of concurrently filing Form I-526 and I-485, allowing investors to live and work in the U.S. while awaiting their EB-5 approval. Concurrently filing allows those already residing in the U.S. to change their status to “pending adjustment.” This is one of the significant changes that arose from the recent reauthorization of the EB-5 program.

This temporary injunction will allow EB-5 regional centers, which were de-authorized by the recent USCIS announcement, to continue operations and restore the ability of potential investors to begin participating in the EB-5 visa program.

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