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This story is from February 23, 2022

Behring Co files lawsuit against USCIS challenging termination of the EB-5 regional center program

Behring Co files lawsuit against USCIS challenging termination of the EB-5 regional center program
MUMBAI: Behring Co, a real estate developer and the operator of the Behring Regional Center, has filed a lawsuit, which claims that the federal agencies are exceeding their authority by unilaterally cancelling the EB-5 Regional Center Program after June 30, 2021.
The lawsuit has been filed against the US Citizenship and Immigration Services (USCIS), the Department of Homeland Security (DHS) and the Department of State (DOS) in a US district court (Northern District of California).

USCIS is now refusing to process tens of thousands of visa applications after taking in over $47 million in fees from EB-5 regional center investors and their families, states a release from Behring.
TOI has earlier reported on another lawsuit filed by a bunch of foreign investors (including Indian nationals) who had invested at least $ 500,000 under the EB-5 ‘Regional Center Program’, but found themselves in a limbo as their applications were no longer being processed by the USCIS. It is likely that several similar lawsuits will be filed, as investors throng courts to seek justice.

Under the EB-5 program, individuals can apply for lawful permanent residence (aka green card) in the US if they make the necessary investments and create at least 10 permanent full-time jobs for American workers. Investors need to invest $500,000 in a project in a rural area or an area of low employment, or $1 million otherwise.
While the direct investment route (where the investor sets up his/her own business) continues to operate under the EB-5 program, nearly 90% of investments were made via recognised
regional centers (which in turn sponsor business entities) – this program lapsed on June 30, 2021. Since then, investors have been caught in a limbo.
A Gujarat based investor wrote to TOI that he had used his family’s savings to assure a better life for his son in the US. Now he fears loss of his investment and is unsure of his son’s future. For Indians, it was the EB-5 route that assured them of a green card within a reasonable time frame (say 10 odd years) as opposed to an H-1B employment-based green card, which took several decades. Several H-1B holders also took this route, in order to get a green card within their lifetime.
The lawsuit filed by Behring, on February 19, seeks a court order declaring that the Regional Center Program is unexpired and requiring the US government agencies to continue processing EB-5 applications and visas.
A release from Behring explains: In 1990, US Congress created the EB-5 investor program to provide an opportunity for foreign nationals and their families to become permanent US residents when they invest in businesses that create jobs for American workers.
In 1992, Congress created the Regional Center Program with the intent to help simplify and stimulate EB-5 investment by enabling investors to pool their investments and subscribe to projects pre-approved by USCIS.
A plain reading of the statute demonstrates that Congress established the Regional Center Program as an additional vehicle to facilitate EB-5 investment. In a separate provision of the same legislation, Congress then created an introductory incentive to attract participants in the form of a visa set-aside reserved for Regional Centers that would kick off the new program. That separate incentive was set to expire after 5 years. For almost 30 years, Congress issued extensions for the set-aside incentive. USCIS has now wrongfully associated the expiration of that temporary incentive as the expiration of the EB-5 program as a whole. USCIS is now refusing to process tens of thousands of visa applications after taking in over $47 million in fees from EB-5 regional center investors and their families.
Though three decades old, the EB-5 program gained particular prominence in capital markets after the 2008 financial crisis, when traditional lenders slowed their activity and real estate developers sought alternative sources of capital. Since the program's inception, EB-5 investors have injected more than $41 billion in U.S. projects that have created over 820,000 full-time jobs at no cost to US taxpayers.
"It is unfathomable that Congress would design a program where foreign nationals could invest their life savings in U.S. businesses and pay USCIS millions in application fees only to watch the program self-destruct in the middle of a years-long wait for a visa. But as a plain reading of the statute indicates, the core program was never intended to expire," said Colin Behring, CEO of Behring Co.
"This misinterpretation has had far-reaching effects, as artificial expiration dates create havoc for investors and projects that have an ultimate desire for stability. We are hopeful that the court will order these agencies to continue processing regional center-associated petitions and visa applications, removing 40,000 investors from an unjust position of limbo," he added.
Congress is in the process of reforming the Regional Center Program. In this backdrop Colin Behring was of the view that the Congress should squarely focus on reform as there is no need to reauthorize a program that is already permanent.
author
About the Author
Lubna Kably

Lubna Kably is a senior editor, who focuses on various policies and legislation. In particular, she writes extensively on immigration and tax policies. The Indian diaspora is the largest in the world; through her articles she demystifies the immigration-policy related developments in select countries for outbound students, job aspirants and employees. She also analyses the impact of Income-tax and GST related developments for individuals and business entities.

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