Behring Co. Files Lawsuit Against USCIS for Wrongfully Terminating EB-5 Regional Center Program
The lawsuit filed on February 19th claims that the federal agencies are exceeding their authority by unilaterally canceling the EB-5 Regional Center Program after June 30, 2021.
BLACKHAWK, Calif., Feb. 22, 2022 /PRNewswire/ -- Behring Co., a real estate developer and the operator of Behring Regional Center, today announced that it has filed suit against USCIS, the Department of Homeland Security (DHS) and the Department of State (DOS) in the U.S. District Court of the Northern District of California.
The lawsuit filed on February 19th claims that the federal agencies are exceeding their authority by unilaterally canceling the EB-5 Regional Center Program after June 30, 2021. The plaintiff seeks a court order declaring that the program is unexpired and requiring DHS and DOS to continue processing EB-5 petitions and visas.
In 1990, Congress created the EB-5 Immigrant Investor Program to provide an opportunity for foreign nationals and their families to become permanent U.S. 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.
"For years, many people operated under the false pretense that the program was set to expire, and it never made sense — 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."
Behring added: "We have long been supporters of positive EB-5 modernization, and we recognize that Congress is in the process of creating meaningful reforms to the program. The simple text of the law and the merits of this case prove the permanency of the Regional Center program. Congress can now squarely focus on reform as there is no need to reauthorize a program that is already permanent. More importantly, if positive reform efforts were thwarted by parties leveraging a fake expiration to hold the fate of existing investors hostage while trying further their own self-interest, that can end now. The initial law's correct interpretation combined with the commonsense reforms being developed by Congress will restore EB-5 to its position as our country's most powerful and only fully self-funded economic development program."
For Behring Co., this suit follows its 2021 legal victory, when a federal judge vacated the EB-5 Modernization Rule unlawfully implemented by DHS in 2019. Before being overturned, the rule had rendered the program inoperable, causing participation in the program to plummet by nearly 99%. Greenberg Traurig, LLP is representing Behring in both cases.
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 U.S. taxpayers.
"We all bear different responsibilities within the EB-5 industry, from advocates, to issuers, to borrowers, but we all share the common responsibility of ushering our clients and investors safely through the EB-5 process," said Nima Korpivaara, Partner at KLD LLP. "Congress and USCIS have left tens of thousands of investors on unstable ground and in fear. During this time, Behring has continued to look for a solution, and now with action, we have a chance as an industry to protect EB-5 investors."
Behring may have been early to file its own suit but USCIS, DHS and Department of State are set to receive additional litigation as over 40,000 investors and their families are impacted by their action. Large multiple-investor lawsuits are forming and in search of additional plaintiffs seeking there own injunctive relief, writ of mandamus action and even recovery of unlawfully collected fees under the "Little Tucker Act." One such group is led by The Galati Law Firm and the law firms that form the Immpact Litigation Team, Siskind Susser, Joseph & Hall, and Kuck Baxter Immigration.
"USCIS has not held up its end of the bargain – the timely, good faith adjudication of EB-5 related benefits in exchange for the exorbitant fees it collects from investors and their family members," said Matthew Galati, Principal of the eponymous law firm. "Many of our clients have leveraged their life's savings in an effort to achieve the American dream. Imagine the anxiety these families plunged into a bureaucratic and political nightmare now face."
"The Agency's unlawful actions during the so-called lapse are but the latest episode of not giving immigrant job creators their due." Galati continued. "For years USCIS has sat on its hands while administrative backlogs have become out of control and thousands of visas wasted. And now it argues it can do nothing? While collecting millions of fees for doing nothing? The statutory language mandates that processing must continue. Our team is heading to court to end this abuse of those applicants who have created hundreds of thousands of American jobs."
More information regarding their lawsuit can be found at https://www.immpactlitigation.com/eb-5-regional-center-litigation-2022/.
Learn more about the EB-5 Immigrant Investor Program at BehringEB5.com
About Behring Co.
Behring Co. is a vertically integrated real estate developer, private equity fund manager, and EB-5 regional center serving the San Francisco Bay Area and Silicon Valley. Behring owns and operates the Behring Regional Center, a USCIS accredited EB-5 regional center with 100-percent investor approval history serving hundreds of investors since 2013.
Media contact:
Shlomo Morgulis
Antenna
201-465-8007
[email protected]
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