27 Jun 2022

Court Enjoins USCIS: Behring Regional Center v. Mayorkas

"In March 2022, Congress enacted the Reform and Integrity Act, which reauthorized and revamped the system governing so-called regional centers—entities that pool investments from foreign visa applicants to promote job growth in the United States. The United States Citizenship and Immigration Services (USCIS) interpreted the Act as unequivocally deauthorizing the 600-plus previously authorized regional centers. The agency thus announced that the existing regional centers were deauthorized, effectively cutting off their revenue streams. That was almost certainly legal error, because it is unclear whether the Integrity Act deauthorized existing regional centers or allowed them to continue operating under Congress’s new regime. The agency was therefore required to weigh competing interests before deciding whether the existing regional centers should be deauthorized. And the agency’s treatment of the previously authorized regional centers is harming them irreparably, in a manner that is contrary to the public interest. Therefore, the agency is enjoined from treating the existing regional centers as deauthorized while this litigation is pending (or until the agency engages in a reasoned decision-making process regarding how to treat these centers under the Integrity Act). ... Because this case is so complicated, it’s worth concluding with an analogy. Essentially, Behring and its regional center peers attained status as members of a club created by Congress. Congress tasked the agency with admitting members, crafting club rules, and doling out club privileges. Although the club became inactive from time to time, Congress repeatedly opened its doors again, and the agency did not force existing members to reapply—the members retained their status throughout. This time, with the Integrity Act, Congress made many changes to the club’s structure. It crafted new admission requirements and altered club privileges. But it did not specify whether existing members could—as they had before—remain members. Then the agency kicked out all the existing members, assuming that Congress forced its hand. The agency was wrong to act based on that assumption. That does not mean the agency may not now consider the competing interests at stake and decide to require all existing members to seek new admission to the club. 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."