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Behring wins suit against USCIS – EB-5 regional centers back in business

The US District Court for the Northern District of California issued a decision today in Behring Regional Center’s lawsuit seeking a preliminary injunction to stop United States Citizenship and Immigration Services (USCIS) from deauthorizing previously designated EB-5 Regional Centers.

“We are relieved to have the courts favor in issuing the preliminary injunction stopping USCIS from cancelling EB-5 regional centers,” said Colin Behring, CEO of the Behring Companies.  “The ruling is strong and clear in its language that EB-5 is to continue immediately. Our investors asked us to do everything we could to fix this and our team at Behring and the EB-5 Investment Coalition delivered. This was our third lawsuit with USCIS, and with this ruling we are heading toward victory on the merits on all of them.”

EB-5 regional centers can continue working immediately, verdict said

Congress enacted the Reform and Integrity Act in March 2022, reauthorizing and revamping the system that oversees regional centers. The suit alleged that the USCIS wrongly interpreted the Act as deauthorizing the more than 600 previously authorized regional centers and putting an end to their revenue streams. The lawsuit said the agency’s guidance violates the Administrative Procedure Act (APA) and misinterprets the new EB-5 law enacted by Congress.

The court found that the USCIS “violated the APA” and added that it “was almost certainly wrong in assuming that the Integrity Act affirmatively deauthorized existing regional centers, so the agency was almost certainly wrong to announce that the centers are no longer authorized.”

The court has ordered USCIS to not require previously designated regional centers to go through steps to be reauthorized. It also required that the USCIS process new I‐526 petitions from immigrant investors investing through previously authorized regional centers. The ruling is a big win for EB-5 industry and investor stakeholders.

“We are so pleased that the court recognized the true congressional intent.  Existing regional centers can now operate and accept new investors,” says Laura Foote Reiff, a partner at Greenberg Traurig LLP, which represents Behring in the lawsuit over the USCIS guidance. “This is a program that should be embraced by the agency and the country as it brings much-needed revenue into the US and helps with job creation.”

Behring regional center wins case against USCIS and clears way for EB-5 processing

Before issuing his ruling, Judge Vince Chhabria concluded with an analogy, likening Behring and other regional centers as members of a club created by Congress who gave the USCIS the responsibility of admitting members, creating club rules, and club privileges. But with the Integrity Act, Congress made many changes to the club’s structure but failed to specify whether existing members could, like before, remain members. Then the agency removed all existing members, based on what they thought Congress wanted.

“The agency was wrong to act based on that assumption,” Chhabria said. “But it does mean that, for now, the agency must continue treating the existing members as members of the newly revamped club. The motion for a preliminary injunction is granted.”

The lawsuit follows the firm’s 2021 legal victory, when a federal judge vacated the EB-5 Modernization Rule that was implemented unlawfully by the Department of Homeland Security in 2019.

“The nationwide injunction decision is huge for the EB-5 industry and means investors can file immediately especially for the new fast track categorizes created by the Reform and Integrity Act signed by President Biden on March 15, 2022,” says Bernard Wolfsdorf an LA based immigration lawyer. “There will be a frenzy of filings with all the pent-up demand.”

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Portugal’s Golden Visa is going nowhere. Government rejects ending golden visas.

Parliament has rejected the proposals of the PCP, BE and PAN to end golden visas, as well as the proposal by Chega who called for the enlargement of the regime.

“The way and the time is one of evaluation” about a “successful legal amendment that safeguarded the dimensions that are important in this regime”, said the socialist deputy Pedro Anastácio.

The PS parliamentarian, the party that voted against all these proposals, argued that “the last legal change made to the regime responded adequately to the housing dimension, allowing to safeguard and maintain the regime’s dimension”. For Pedro Anastácio, the changes represent “something that is also important and fundamental for the country, which is the promotion of productive investment, job creation, investment in urban requalification, cultural heritage and in activities of high environmental or social value”, adding that “it is necessary to assess the effects after the introduction of this change” in order to assess whether the desired balance has been achieved.

The deputies only approved a PSD recommendation to the Government for urgent regulation that would allow the operation of the online platform and the submission of online applications for golden visas for real estate purposes in the Autonomous Regions of Madeira, the Azores and interior.

Online platform

While the debate and voting took place, it was announced by the Portuguese Association of Real Estate Developers and Investors (APPII) that the platform was now operational.

Jornal de Notícias reported last Tuesday that the lack of regulation of the law that changes criteria for the attribution of Residence Permits for Investment, which came into force in January, was preventing the submission of new applications to the golden visa regime.

The following day, the Secretary of State for the Presidency of the Council of Ministers, André Moz Caldas, stated that the law in question did not need to be regulated and could be “directly applicable”. “From my point of view, the law amended in the past is directly applicable and does not require any special regulation”, said the Secretary of State.

This morning, APPII announced that applications for the so-called golden visas were resumed and several new applications for Residence Permits by Investment (ARI) have already been submitted. In a statement, APPII adds that, “after a round with its associates, it confirmed that the platform to insert new ARI of the Foreigners and Borders Service (SEF) is finally operational”.

During the plenary debate, PSD deputy Sara Madruga da Costa defended the “urgency to proceed with the rapid operationalization of the SEF portal” within the scope of the latest changes, adding that “this is an excellent opportunity to put into practice the so often touted territorial cohesion”.

No new changes will be brought in relation to golden visas and the online platform for submissions is now up and running again.

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Immigrants are suing the U.S. government over delays in citizenship process

A group of immigrants are suing the U.S. government over delays in processing their citizenship applications. The 13 plaintiffs filed a suit against the federal government on Wednesday for what they call unreasonable delays after submitting their naturalization applications in spring 2020.

The suit, filed by the American Immigration Council on behalf of the immigrants, names U.S. Citizenship and Immigration Services (USCIS) as well as the National Archives and Records Administration, which operates underground storage facilities housing immigration paperwork. These mile-long caves beneath Kansas City largely shut down due to the COVID-19 pandemic.

The closures meant that thousands of U.S. immigration applications were left languishing underground. Without those papers detailing an applicant’s immigration history, USCIS is unable to approve citizenship applications, leaving scores of immigrants stuck in limbo.

In March, the National Archives fully reopened its underground storage facilities, according to the Wall Street Journal, and there are now 87,500 pending requests for immigration papers, down from 350,000 in January.

Yet USCIS still isn’t prioritizing citizenship applications over other immigration requests, which could mean thousands of would-be citizens won’t be able to vote in the upcoming midterm elections.

“We’re concerned that if they’re not proactive and don’t focus on naturalization applications, they have a risk of harm that no one else does,” Leslie Dellon, staff attorney at the American Immigration Council, told the Wall Street Journal.

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USCIS Clarifies Stance on Regional Center Re-Designation for EB-5

On April 29, USCIS hosted a listening session to inform EB-5 Stakeholders of changes to the regional center program and address their issues and concerns related to the EB-5 Reform and Integrity Act. Crucially USCIS clarified at this session that regional centers which existed prior to the program’s lapse of authorization in June 2021 are no longer approved and designated as regional centers. Per the language on USCIS’ website “Entities seeking to be designated as a regional center are required to file Form I-956, Application for Regional Center Designation. The USCIS will be publishing this new form, including the form instructions, with additional information regarding the filing process by May 14, 2022.”

HOW WILL THIS AFFECT REGIONAL CENTERS AND INVESTORS ?

USCIS’s announcement of this policy comes as somewhat of a surprise, as the text of the EB-5 Reform and Integrity Act does not mention a requirement for existing regional centers to re-designate under the new law. Rather, the policy is based on USCIS’ interpretation of the bill. First and foremost, the policy places existing regional centers in a state of limbo, as they are no longer legally considered regional centers under the EB-5 Reform and Integrity Act. These “entities” as USCIS refers to them, will need to have an approved I-956 to be re-designated as regional centers and continue sponsoring new I-526 petitions in the future. 

This obviously raises issues for investors with an approved I-526 who have yet to receive their EB-5 visa, as their petition is no longer associated with a designated regional center. However, USCIS has announced that investors may still be able to establish eligibility, “by demonstrating compliance with other applicable requirements (primarily investment and job creation, including indirect job creation as provided under the former statute).”  

Most concerning about this policy is how it will affect regional centers who do not apply for re-designation. As per the USCIS announcement, regional centers only need to file I-956 if they wish to support new investor petitions in the future. Additionally, the agency will no longer accept Form I-924A, Annual Certification of Regional Center, from existing regional centers who are not filing for re-designation. This may lead to a situation where USCIS will have little oversight over existing regional centers (with active projects and investors) that choose not to apply for re-designation. 

It seems, USCIS’ decision to deauthorize all existing regional centers and require them to file Form I-956 might have unintended consequences. Rather than allowing the EB-5 Regional Center program to start up again smoothly, the agency has created hurdles for the EB-5 industry after it has already spent nearly a year in limbo waiting for Congress to reauthorize the program. It is noteworthy that the agency’s decision to relinquish its oversight over existing regional centers who do not apply for re-designation runs counter the EB-5 Reform and Integrity act’s goal of ensuring integrity and accountability in the program. Litigation challenging the re-designation policy has already been filed by Behring Regional Center, but it will remain to be seen if USCIS is willing to budge.

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Latvia Terminates Its Golden Visa Program

Last week, the immigration by investment world was met with terrible news. Authorities in Latvia have decided to abolish their Golden Visa Program after the latter has often been in the spotlight for being involved in many unlawful affairs.

The decision has been confirmed by the country’s Prime Minister, Krišjānis Kariņš while he stressed that the Ministry of the Interior is drafting necessary legislative amendments.

Through the Golden Visa Program, wealthy internationals were eligible to acquire residency in Latvia if they met specific requirements and made a specific amount of money in this country, such as buying expensive apartments and villas.

Jūris Pūce, chairman of Development for a political group in the Saeima, has emphasized that the ban on the Citizenship by Investment scheme in this way would apply to citizens of Russia and Belarus.

Pūce has said that a legal regulation regarding the issue will be prepared in the following days and put before the relevant Saeima committee, whose members will decide on it on Wednesday. Then, lawmakers will review the matter at a Saeima plenary.

The Citizenship by Investment Program has significantly helped the economy of European countries that run such schemes.

According to a recent analytic tool called the Best Investment Migration Real Estate Index, which Henley and Partners conducted, together with Deep Knowledge Analytics, Spain, Montenegro, Turkey, Portugal as well as Greece have been ranked as the best countries in Europe for real estate investments for residence and also citizenship rights.

However, the Golden Visa Program that is run in several European countries has often been considered as an open door to money laundering and other unlawful affairs.

In addition, the Committee on Civil Liberties, Justice, and Home Affairs of the EU Parliament previously urged the Member States to impose stricter conditions under which they issue golden visas to third-country citizens.

“Noting the difference in the severity of the risks posed by ‘residence by investment’ schemes -that give foreigners residence rights in exchange for a financial contribution-, the draft report asks for common EU rules to harmonize standards and strengthen the fight against money laundering, corruption, and tax evasion,” a press release of the EU Parliament revealed.

The sanctions imposed by European countries on Russia, which have been considered among the harshest in recent years, have reinforced the desire to terminate such schemes in European countries.

Due to Russia’s invasion of Ukraine other European countries have already suspended the Golden Visa Program for Russian citizens, including here the Czech Republic, Ireland, Greece, Portugal, Malta, and Spain.

This is a sad turn of events but do not feel discouraged as there are many more countries with Golden Visa opportunities to choose from such as Portugal and Greece.

Join our Portugal Golden Visa webinar on April 22nd, 2022 to know more. Register at https://cutt.ly/0DPui2v

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Antigua & Barbuda: Antigua to propose the creation of a CIP Regulatory Commission

Antigua and Barbuda said it will propose that Organization of Eastern Caribbean States (OECS) members create a Regulatory Commission in an effort to protect their lucrative Citizenship by Investment Programs (CIP).

CPI programs have been placed under the microscope by the United States, European Union and the United Kingdom as they seek to tackle human trafficking as well as clamp down on persons trying to dodge international sanctions. 

EU Parliamentarians recently voted to ask its Commission to formulate a strategy that would eventually see passport holders of Dominica, St Kitts and Nevis, Grenada, St Lucia and Antigua and Barbuda booted out of the Schengen program that allows visa-free stays in member states for tourism and business purposes for up to 90 days.

US legislators are looking at the “No Travel for Traffickers Act” which is designed to penalize countries that operate CBI programmes.

At the post-cabinet media briefing, Information Minister Melford Nicholas stated: “It will be a response to the issues that they have raised. And it will be to demonstrate over and above anything else of our intent to be compliant and sympathetic to issues that they may raise in terms of their own national security.”

The government is also looking to amend the CIP law of 2013 so the program will be known as The Residency and Citizenship by Investment Program.

It will be similar to a program currently operated by the US.

“We may not be able to change hearts and minds in the US congress, but we can diversify our own offering to ensure we are still attractive to investors and investment from other jurisdictions where they are precluded from obtaining citizenship abroad,” Nicholas said.

“So it is broadening the scope of our offering…that is the key behind this requirement looking to modify our program going forward to ensure that we can cushion the impact of any fall that will come from this threat…more from the Schengen countries rather than from the United States.”

Reference: Immigration Investment Council (IMC)