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Judge Orders USCIS To Begin Accepting New EB-5 Regional Center Investment Applications

On Friday June 24, 2022, a Federal District Court Judge ruled in favor of a regional center challenging USCIS’s implementation of certain portions of the EB-5 Reform and Integrity Act of 2022. In a nationwide preliminary injunction, the Judge ordered that preexisting regional centers retain their designation and may file for project pre-approval and investors can file related I-526 petitions. This is a big step forward since the Judge has ordered USCIS to begin accepting new EB-5 regional center investment applications.

In a recent Forbes article, WR Immigration Managing Partner Bernie Wolfsdorf expressed his reaction to the court order with a prediction, "There will be a frenzy of filings with all the pent-up demand."

Below are answers to questions commonly asked by investors:

What Does This Decision Mean For New Investors? Regional centers that had previously been designated can now file the form I-956F project approval form and investors in that project will be allowed to file their form I-526 individual petitions without waiting for an approval.

Can Investors File Form I-485 Adjustment Of Status Together With Form I-526? Yes, if an immigrant visa number is available, investors can file form I-485 adjustment application. (Presently only China has a waiting line, but the new set-aside categories of Rural Reserved, High Unemployment and Infrastructure are current and visas are available for persons chargeable to China). USCIS is now authorized to accept form I-485 adjustment of status for both pending and approved forms I-526.

Will Investors Who File I-485 Forms With Their I-526’s Be Able To Travel Outside Of The U.S.? Unless the applicant has a valid H-1B, L-1, L-2 or H-4 visa, investors will need to obtain an advance parole travel permit. These permits are presently delayed and are taking over 9-10 months to process.

Will Investors Who File I-485 Forms With Their I-526’s Be Able To Work While Waiting In The U.S.? If the applicant has valid work authorization, in most cases they will be permitted to work. The filing of the adjustment will provide work If the applicant has valid work authorization, in most cases they will be permitted to work. The filing of the adjustment will provide work authorization, but work permits have been delayed. We expecting to see improvements in work permit processing times and possibly see new work permits issued within 6 months of filing the adjustment application.

Advice For Regional Centers: Regional centers are advised to file their form I-956F project certification as soon as possible so they can accept investors investments and file individual investor I-526 petitions. The Reform and Integrity Act (RIA) requires offering documents to be updated to ensure securities law and other disclosure requirements.

Do Regional Centers Still Need To File I-956 Forms? Previously authorized regional centers do not need to file the form I-956 to support an EB-5 project or an individual petition but we are waiting for more guidance from USCIS.

What Happens Next? Since this decision reversed the USCIS determination that previously approved regional centers were terminated , it appears the previously designated regional centers are now authorized to conduct business until a final decision is rendered. It is expected that USCIS will provide instructions in the next few days implementing this decision. USCIS could appeal the decision, but most likely USCIS will develop a process to implement the Judge’s decision. While unlikely, USCIS could try and defend its position by seeking a summary judgment. The good news is that properly filed applications will have to be accepted now and this decision benefits both regional center projects seeking to raise funds, and investors seeking green cards. For more information regarding the EB-5 program contact attorneys Vivian Zhu, Joe Barnett, or Bernard Wolfsdorf.

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