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Behring & DC. Lawsuits Update: Settlement Approved

On Thursday, September 1, Judge Chhabria signed an Order Granting Approval of Stipulation of Settlement, which approved the Stipulation of Settlement that the parties filed on August 24, 2022 for the 2 EB-5 cases (Behring Regional Center LLC v. Alejandro Mayorkas, et al. and EB5 Capital, et al. v. United States Department of Homeland Security, et al.). Both cases are now dismissed with prejudice, and the cases are now closed. The Court retains jurisdiction to adjudicate any claim for enforcement of the Settlement Agreement.

Below is our summary of the key points of the Settlement Agreement:

I. Previously Approved Regional Centers Retain Designation, Subject to Filing Form I-956 by December 29, 2022, as an Amendment

– Regional centers approved prior to the enactment of the EB-5 Reform and Integrity Act of 2022 (RIA) are not categorically deauthorized as USCIS announced in April. However, such regional centers must file Form I-956, Application for Regional Center Designation, by December 29, 2022, as an amendment, in order to continue to maintain their status as an approved regional center for purposes of sponsoring new projects and new investors under RIA.

– Previously Approved Regional Centers and investors in projects sponsored by Previously Approved Regional Centers will not need to wait for their Form I-956 to be approved prior to filing and receiving adjudications from USCIS on any other Forms. However, if the Regional Center proposes to expand its geographic area greater than previously approved, the regional center may only be able to continue to operate in its previously approved geographic area until the Form I-956 Amendment approves the geographic area expansion.

II. Previously Approved Regional Centers May Immediately File Project Applications (Form I-956F) and USCIS Must Thereafter Accept Investor Petitions

– If a Form I-956F receipt notice is not issued within 10 calendar days of “physical delivery of the filing” to USCIS, USCIS will accept the following, after which Forms I-526E associated with the filed Form I-956F can be filed immediately:

— The lockbox notice (i.e., payment receipt letter) along with “a copy of at least the first six pages of the filed Form I-956F (Parts 1-5) for purposes of providing ‘the receipt number of the regional center’s Form I-956F”

— Proof of the filing fee’s “cashed check or credit card charge (along with regional center name, new commercial enterprise name, job creating entity name if available, and approximate Form I-956F filing date)”

III. Previously Approved Regional Centers Will Be Governed by the RIA

– Persons involved with a regional center, new commercial enterprise, or job­ creating entity will file an I-956H, Bona Fides of Persons Involved with Regional Center Program, for each entity with which they are involved for submission with any related form as applicable.

– USCIS will continue to process and adjudicate I-526 and I-829 petitions from investors filed prior to RIA (as well as future I-829 petitions based on I-526 petitions filed prior to RIA), even if the regional center with which their project was approved does not file a Form I-956 application or amendment by December 29, 2022. – New forms issued since the RIA will be deemed interim until notice-and-comment rulemaking is undertaken by USCIS.

IV. Implementation

– By December 1, 2022, USCIS will amend any Forms and accompanying instructions to adhere to the terms of the Settlement Agreement.

– Within 21 days following the effective date of the Settlement Agreement: USCIS will update its guidance on the agency website, in Frequently Asked Questions, and in any public forum as to the current requirements as set forth in the Settlement Agreement.

– For at least 2 years following the effective date of the Settlement Agreement: Plaintiffs and Defendants will confer on “at least a quarterly basis to discuss implementation of this Settlement Agreement and matters pertaining to the implementation.”  

Having quarterly meetings with USCIS is a great achievement that should lead to greater likelihood of success in implementation of the Settlement Agreement and to address unforeseen issues with implementation.