EB-5 investor accepting new visa applications

The U.S. federal Courts have ruled in favour of regional centres and have ordered the United States Citizenship and Immigration Services to process new I-526 applications under the EB-5 regional centre programme. Prospective EB-5 investors have a short window to file their applications before USCIS decides on their response to the judgment.

The enactment of the EB-5 Reform and Integrity Act of 2022 (RIA) by congress in March 2015 reauthorised the EB-5 regional centre programme, popularly known as the U.S. golden visa. After an almost nine month filing suspension, regional centres were once again allowed to collect pooled investments from foreign investors under the EB-5 Regional Centre programme. Originally, congress had enacted the programme to aid the U.S. economy and provide an avenue to increase the labour market through the programme's requirement of a substantial capital investment that must generate 10 jobs for U.S. persons. For over three decades, the programme remained unchanged and continued to grow in popularity, specifically from investors seeking to migrate to the U.S. in search for more stable political, economic, employment and healthcare climates.

As the programme continued to grow in popularity, congress saw the need to introduce new integrity measures that will protect the investors and create more transparency within the programme, RIA was introduced. RIA’s aim was to ensure that regional centres are held at the highest level of scrutiny by reforming the programme and preventing any possibility of fraudulent behaviours and taking advantage of foreign investors. While RIA did reauthorise the programme it also introduced new pertinent statutory texts that were designed to strengthen oversight and combat fraud, these statutory texts essentially provided a new programme. As the agency in charge of overseeing the programme, the United States Citizenship and Immigration Services (USCIS) were tasked with the duty of interpreting and implementing the new law into the EB-5 immigrant investor programme. Part of USCIS’ interpretation of the new statutory text was that the enactment of RIA repealed the original regional centre pilot programme and as such all regional centers previously designated under the programme were no longer authorised and would have to reapply for designation.

On April 22, Behring Regional Centre, represented by Greenberg Traurig, LLC, filed a lawsuit against the agency on grounds of violating the Administrative Procedure Act (APA) by wrongly interpreting RIA and by doing so unequivocally deauthorising the regional centre programme. Behring filed for a temporary restraining order asking the courts to prevent USCIS from deauthorising all regional centres and that USCIS must resume processing new I-526 visa applications. The application for a temporary restraining order was then changed and a motion for preliminary injunction was filed. In one of the submitted motions, USCIS informed the courts that the agency would set a nonbinding target of six months to provide regional centres with recertification. A nonbinding target was not sufficient for regional centres to receive assurance that they will be able to receive required recertification. By deauthorising the regional centres, USCIS had effectively cut off a major source of revenue for all regional centres.

Behring made a strong case evidencing that USCIS indeed violated the APA and that they were wrong in their interpretation of RIA. According to the court's analysis RIA does not specifically state that regional centres must reapply for certification, it is ambiguous and in some parts of RIA, it suggests that congress did not intend to deauthorise the existing regional centres. It was further evidenced by Behring through the submission of a letter from pertinent senators who were involved in the drafting of RIA that the main aim of the Act was to introduce new reforms for integrity and transparency and not to deauthorise regional centres.

After hearing both parties, on June 24 the courts ruled in favour of Behring Regional Centre and granted the motion of a preliminary injunction. This means that USCIS must proceed to processing new I-526 applications under the regional centre programme. While this is a victory for the programme, the government has 30 days to appeal the decision. It is possible that USCIS could allow the court decision and proceed with processing applications until the sunset date of 2027. For now there is a small window of opportunity for investors to submit their applications before USCIS makes their final decision.

The team of U.S. licensed lawyers at the American Legal Center have been assisting EB-5 applicants for over 12 years in the Middle East and emerging markets. Under the guidance of Shahriar Zamanian or Shai Zamanian, the Legal Director of The American Legal Center in Dubai, has successfully filed more EB-5 applications than any other firm within the GCC. In the month of June 2021, they filed 6 per cent of worldwide applications. Zamanian explains, “It is imperative that investors capture this opportunity before the government reacts.”

To book your free consultation with U.S. licensed lawyers email Silu.ntshangase@america.ae  or Whatsapp +971 50  938 6092.