EB-5: Regional Center Redesignation “Not Required” Say Congressional Leaders in Letter to Mayorkas

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On Monday, senators Chuck Schumer, Lindsey Graham, and John Cornyn, as well as House Representative Jerry Nadler, sent a letter to Department of Homeland Security Secretary Alejandro Mayorkas, urging him not to require regional centers so-designated under previous EB-5 legislation to redesignate.

The letter follows last week’s highly controversial USCIS listening session, in which the agency made it clear that all prior regional center designations had been rendered defunct by the new law and that prospective regional centers would have to re-file for designation, using the new I-956 form (which remains unpublished).

The congressional leaders, in their letter to Mayorkas, emphasized that the USCIS’ guidance was “confusing and causing great concern in the EB-5 stakeholder community,” highlighted a number of legal provisions clearly establishing that requiring all existing regional centers to redesignate was not necessary, and pointed out a wide array of negative practical consequences the USCIS’ position would have on EB-5 investors, regional centers, and job creation in the United States.

“Specifically,” stated the letter, “requiring all regional centers to go through a process to be redesignated is not required under the EB-5 Reform and Integrity Act of 2022 and will put an immense burden on the agency. Instead, the agency currently has the authority and the tools to confirm compliance with the new integrity measures without the need for a full-scale redesignation of existing regional centers.”

The same letter was also submitted to the District Court of the Northern District of California ahead of its hearing yesterday of Behring Regional Center’s motion for a temporary restraining order (later changed to a preliminary injunction request) on the redesignation requirement. A ruling in that case, which was originally expected this week, has been deferred until after the parties have submitted supplemental briefs, by May 23rd.

Commenting on the congressmen’s missive, EB-5 litigation expert Matthew Galati – this year’s winner of the prestigious American Immigration Lawyers Association’s Joseph Minsky Young Lawyer Award for outstanding contributions in the field of immigration and nationality law – said the “bipartisan, bicameral letter confirms what the EB-5 industry had assumed since the RIA was introduced; that it was Congress’ intent for USCIS to transition to the new EB-5 law in a matter as orderly as possible.”

Galati also warned of highly disruptive consequences to the program should the USCIS persist in its position, pointing out that, in such case, litigation would be the only hope for reversing what he referred to as a “draconian interpretation” of the law.

“Senselessly, said Galati, “the agency had decided to adopt Senator Grassley’s after-the-fact talking points and require Regional Center designation as a prerequisite to new investor filings. Subjecting the restart of Regional Center EB-5 to ongoing administrative delays and caprice jeopardizes the short and medium term success of the program. Hopefully, Congress’ clear message will encourage USCIS to reconsider its draconian interpretations of the RIA. If not, then once again all eyes are on Behring to bring about justice through the courts.”

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