Sunshine State Regional Center, Inc. v. Director, US Citizenship and Immigration Services

USCA11 Case: 24-10007 Document: 30-1 Date Filed: 07/10/2025 Page: 1 of 35

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10007

____________________

SUNSHINE STATE REGIONAL CENTER, INC.,

Plaintiff-Appellant,

versus

DIRECTOR, US CITIZENSHIP AND IMMIGRATION SER-

VICES,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:23-cv-60795-JEM

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2 Opinion of the Court 24-10007

____________________

Before ROSENBAUM, NEWSOM, and MARCUS, Circuit Judges.

ROSENBAUM, Circuit Judge:

The EB-5 “immigrant investor” program makes a limited

number of visas available to people seeking to immigrate to the

United States if they invest in a job-creating enterprise within the

country. Most of these visa-seekers invest through “regional cen-

ters,” which pool investors’ capital and channel it for maximum job

impact.

The large dollars have tended to breed fraud and abuse in

earlier iterations of the regional-center program. Because of these

concerns and others, Congress passed the EB-5 Reform and Integ-

rity Act of 2022 (“Act”). The Act established an “EB-5 Integrity

Fund” to pay for efforts to ensure compliance with the rules of the

EB-5 program. That fund, in turn, gets money from various

sources, including an annual fee that regional centers must pay.

Plaintiff-Appellant Sunshine State Regional Center, Inc.,

(“Sunshine State”) is an EB-5 regional center that predates the Act

by years. Although Sunshine State has ongoing investments and

associated immigrant investors, it is not currently sponsoring new

investment projects or visa-seekers. So Sunshine State argues that

the Act does not subject it to the annual fee for the EB-5 Integrity

Fund (the “Integrity Fund Fee”), and, in the alternative, that doing

so would be “unlawfully retroactive.”

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24-10007 Opinion of the Court 3

The district court disagreed. So it denied Sunshine State’s

motion for summary judgment and granted, in part, the motion to

dismiss Sunshine State’s complaint that the United States Citizen-

ship and Immigration Services (“USCIS”), the agency that adminis-

ters the regional-center program, filed.

We think the district court got it right. As we explain, the

Act’s text reveals no intent to exempt pre-Act regional centers from

the Integrity Fund Fee. And the Act’s structure suggests the oppo-

site. Sunshine State’s arguments also likely prove too much: If we

accepted its claims, their logical implication would be that Sun-

shine State must redo the process of becoming a designated re-

gional center before it can participate in the EB-5 program.

I. BACKGROUND

Before we discuss the facts here, we pause to consider the

governing regulatory framework. We divide our discussion into

five parts. First, we explain the EB-5 program. Second, we review

the changes to that program that the Act imposed. Third, we con-

sider a relevant settlement in a case involving a challenge to

USCIS’s initial interpretation of the Act. Fourth, we recite USCIS’s

plans to collect the Integrity Fund Fee from all regional centers,

which bring us here today. And finally, we describe Plaintiff-Appel-

lant Sunshine State and its arguments before the district court and

on appeal.

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4 Opinion of the Court 24-10007

A. The EB-5 Program

The “immigrant investor” visa program originated in 1990

as the employment-based, fifth preference (thus “EB-5”), visa pro-

gram. See Immigration Act of 1990, Pub. L. No. 101-649, § 121(a),

104 Stat. 4978, 4987–90. At its inception, the EB-5 program made

visas available to qualified immigrants who sought to invest di-

rectly in a new commercial enterprise that creates at least ten full-

time jobs in the United States. Id.

Two years after creating the program, Congress launched a

“pilot program” setting aside some EB-5 visas each year for quali-

fied immigrants who invested through “a regional center.” Pub. L.

No. 102-395, § 610, 106 Stat. 1828, 1874 (1992) (codified as amended

at 8 U.S.C. § 1153 note, repealed 2022). As we’ve noted, regional

centers pool investing immigrants’ contributions to obtain the big-

gest investment bang for the buck. The pilot program added cer-

tain immigration advantages for investors in regional centers in

that they could count indirectly created jobs towards the EB-5 pro-

gram’s job-creation quota. Id. § 610(c).

Congress in 2002 amended the statute that governs the pro-

gram to provide that regional centers were to be “designated by

the Attorney General on the basis of a general proposal.” Pub. L.

No. 107-273, § 11037(a)(1), 116 Stat. 1758, 1847 (2002). Congress

later vested the authority to designate regional centers in the Sec-

retary of Homeland Security instead. Pub. L. No. 108-156, § 4(a)(1),

117 Stat. 1944, 1945 (2003).

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24-10007 Opinion of the Court 5

At first, Congress slated the visa set-aside for regional centers

to last only five years. Pub. L. No. 102-395, § 610(b), 106 Stat. at

1874. But Congress repeatedly extended the sunset date. 1 And in

2012, Congress removed the regional-center program’s “pilot” sta-

tus. Pub. L. No. 112-176, § 1, 126 Stat. at 1325.

But all was not well with the regional-center program. In

the 2010s, it came under fire for allegations of “fraud and abuse.”

See EB5 Holdings, Inc. v. Jaddou, 717 F. Supp. 3d 86, 92 (D.D.C. 2024);

Da Costa v. Immigr. Inv. Program Off., 643 F. Supp. 3d 1, 5 (D.D.C.

2022), aff’d, 80 F.4th 330 (D.C. Cir. 2023).

So in 2020, Congress passed one final amendment to the

original 1992 statute, extending the visa set-aside through June

2021. Pub. L. No. 116-260, div. O, tit. I, § 104, 134 Stat. 1182, 2148

(2020). The visa set-aside lapsed in June 2021. Da Costa, 643 F.

Supp. 3d at 7.

1 See Pub. L. No. 105-119, § 116(a)(2), 111 Stat. 2440, 2467 (1997); Pub. L. No.

106-396, § 402(a), 114 Stat. 1637, 1647 (2000); Pub. L. No. 108-156, § 4(b), 117

Stat. 1944, 1945 (2003); Pub. L. No. 110-329, § 144, 122 Stat. 3574, 3581 (2008);

Pub. L. No. 111-8, div. J, § 101, 123 Stat. 524, 988 (2009); Pub. L. No. 111-83,

§ 548, 123 Stat. 2142, 2177 (2009); Pub. L. No. 112-176, § 1, 126 Stat. 1325, 1325

(2012); Pub. L. No. 114-113, div. F, tit. V, § 575, 129 Stat. 2242, 2526 (2015);

Pub. L. No. 115-31, div. F, tit. V, § 542, 131 Stat. 135, 432 (2017); Pub. L. No.

115-141, div. M, tit. II, § 204, 132 Stat. 348, 1049 (2018); Pub. L. No. 116-6, div.

H, tit. I, § 104, 133 Stat. 13, 475 (2019); Pub. L. No. 116-94, div. I, tit. I, § 104,

133 Stat. 2534, 3019 (2019).

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6 Opinion of the Court 24-10007

B. The EB-5 Reform and Integrity Act

Nine months later, Congress passed the EB-5 Reform and

Integrity Act of 2022. Pub. L. No. 117-103, div. BB, 136 Stat. 49,

1070–109 (2022). In a section entitled “Reauthorization and Re-

form of the Regional Center Program,” the Act “repealed” the

scant statutory language that had once authorized the regional-cen-

ter program. Id. § 103(a). In its place, the Act enacted a new frame-

work for the regional-center program, authorized the program

through September 2027, and codified several protections against

fraud and abuse. Id. § 103(b)(1) (codified at 8 U.S.C. § 1153(b)(5)).

Section 203(b)(5)(E) of the Immigration and Nationality Act,

codified at 8 U.S.C. § 1153(b)(5)(E), now houses the regional-center

program’s authorization. Pub. L. No. 117-103, div. BB, § 103(b)(1),

136 Stat. at 1075. One critical section in subparagraph (E) provides

that “[v]isas under this subparagraph shall be made available . . . to

qualified immigrants . . . participating in a program implementing

this paragraph that involves a regional center in the United States,

which has been designated by the Secretary of Homeland Security

on the basis of a proposal for the promotion of economic growth.”

8 U.S.C. § 1153(b)(5)(E)(i). The EB-5 Reform and Integrity Act of

2022 added other language specifying the required contents of a

“proposal to establish” a regional center and imposing annual re-

porting obligations. Id. § 1153(b)(5)(E)(iii), (G).

Most important here, the Act requires the Secretary of

Homeland Security to collect from “each regional center desig-

nated under subparagraph (E)” the Integrity Fund Fee: an annual

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24-10007 Opinion of the Court 7

fee that regional centers must pay into a new “EB-5 Integrity Fund”

used to investigate EB-5 fraud. Id. § 1153(b)(5)(J)(ii)(I), (iii). Smaller

regional centers—those with “20 or fewer total investors in the pre-

ceding fiscal year in its new commercial enterprises”—must pay

$10,000 annually. Id. § 1153(b)(5)(J)(ii)(I)(bb). Larger regional cen-

ters must pay double that amount. Id. § 1153(b)(5)(J)(ii)(I)(aa).

C. The Behring Settlement

A key backdrop to this case is a 2022 judicial decision and

settlement about the treatment of pre-Act regional centers. See

Behring Reg’l Ctr. LLC v. Mayorkas, No. 22-CV-02487, 2022 WL

2290594 (N.D. Cal. June 24, 2022).

After Congress enacted the Act, USCIS, the agency that ad-

ministers the regional-center program, announced that the pro-

gram had been fully “repealed.” Id. at *2. So USCIS determined

that pre-Act regional centers—those designated under the original

regional-center statute—were “no longer authorized” and had to

reapply for authorization. See id. USCIS asserted that the text of

the Act compelled this conclusion. See id. at *6.

In Behring, a district court preliminarily enjoined USCIS’s de-

cision. Id. at *7. The court reasoned that the Act’s text did not

clearly “automatically deauthorize existing regional centers” and

that some provisions revealed Congress’s intent not to do so. Id.

at *3–5. Because the Behring court viewed USCIS’s decision as

based on only an erroneous view of the law, the court held it was

“exceedingly likely (if not certain)” to be arbitrary and capricious.

Id. at *6. Then the court enjoined the agency from treating pre-Act

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8 Opinion of the Court 24-10007

centers as “deauthorized.” Id. at *7. Still, the court permitted

USCIS to “do whatever is reasonably necessary to ensure that the

existing regional centers comply with the Integrity Act.” Id.

Consistent with the Behring decision, several pre-Act re-

gional centers entered into a settlement with USCIS. The agency

agreed to rescind its categorical deauthorization of pre-Act regional

centers. But pre-Act regional centers that wished to continue spon-

soring new investment projects and new investors had to submit a

new application for a regional-center designation, using Form

I-956. And the settlement provided that pre-Act regional centers

“sponsoring new projects or new investors under the Integrity Act

will comply with all the requirements of the Integrity Act.”

Under the settlement, a pre-Act regional center that failed to

file a Form I-956 application would not be permitted to “engage in

any activities under the Integrity Act.” But pre-Act visa-seekers

would not be penalized for their regional center’s failure to submit

new paperwork: USCIS committed to “continue to process and ad-

judicate . . . petitions from investors filed prior to the Integrity Act

. . . even if the regional center with which their project was ap-

proved does not file a Form I-956 application.”

D. USCIS’s Collection of the Integrity Fund Fee

All of this brings us to the central issue in this case. In March

2023, USCIS and the Department of Homeland Security, of which

USCIS is a part, announced their plans to implement the annual

Integrity Fund Fee. See Notice of EB-5 Regional Center Integrity

Fund Fee, 88 Fed. Reg. 13,141 (Mar. 2, 2023). The agency said that

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the Act required “the collection of an annual fee paid by and col-

lected from designated regional centers.” Id. at 13,142. USCIS did

not distinguish between pre-Act and post-Act regional centers, ap-

parently thinking it self-evident that the fee applied to every re-

gional center. See id. Rather, the substance of the notice discussed

how regional centers should calculate their “number of investors”

to determine their fee amount, id. at 13,142–43, and the payment

process, id. at 13,143. USCIS also announced that it would exercise

its “discretionary enforcement authority” not to charge the statu-

torily required “reasonable penalty fee” for late payment of the In-

tegrity Fund Fee for fiscal year 2023. See id. But the agency would,

under the Act, “terminate the designation” of regional centers that

did not pay the fee within 90 days of its coming due. Id. (citing 8

U.S.C. § 1153(b)(5)(J)(iv)).

E. Sunshine State

Plaintiff-Appellant Sunshine State is a regional center associ-

ated with investments in several new commercial enterprises in

Florida. USCIS designated Sunshine State as a regional center in

2014, well before Congress passed the Act.

Sunshine State currently has 23 investors with petitions

pending before USCIS. But it says that it has pursued no investors

or investment projects since the Act’s passage. Based on this fact,

Sunshine State figures that it has “no incoming revenue” and so

cannot afford to pay the Integrity Fund Fee “in perpetuity.”

After USCIS announced its plan to collect the Integrity Fund

Fee from all regional centers, no matter whether they were

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10 Opinion of the Court 24-10007

designated before the Act or whether they are now taking inves-

tors, Sunshine State sued the USCIS Director in the Southern Dis-

trict of Florida. In its suit, Sunshine State challenged the agency’s

imposition of the Integrity Fund Fee on pre-Act regional centers.

Sunshine State sued under the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 551 et seq., claiming that USCIS’s decision was

contrary to the Act and so was arbitrary and capricious or ultra

vires.

Sunshine State’s argument in the district court and on appeal

is simple: The Act imposes the Integrity Fund Fee on regional cen-

ters “designated under subparagraph (E).” 8 U.S.C.

§ 1153(b)(5)(J)(ii)(I). Subparagraph (E) provides for visas to be

made available to investors in regional centers “designated by the

Secretary of Homeland Security.” Id. § 1153(b)(5)(E)(i). But sub-

paragraph (E) did not exist before Congress passed the Act—when

Sunshine State received its regional-center designation in 2014. So,

the argument goes, Sunshine State cannot rightly be said to have

been “designated under subparagraph (E).” And so, Sunshine State

continues, the Act does not require Sunshine State to pay the an-

nual Integrity Fund Fee.

II. PROCEDURAL HISTORY AND JURISDICTION

After suing, Sunshine State sought a preliminary injunction

to prevent USCIS from requiring it to pay the Integrity Fund Fee.

Soon after, Sunshine State moved for summary judgment as well.

For its part, USCIS moved to dismiss the case on jurisdictional

grounds and, in the alternative, because USCIS correctly

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interpreted the Act to require both old and new regional centers to

pay the Integrity Fund Fee.

The district court determined that it enjoyed jurisdiction but

agreed with USCIS’s reading of the Act. So it denied Sunshine

State’s motion for summary judgment and granted in part USCIS’s

motion to dismiss, solely as to the proper interpretation of the Act’s

Integrity Fund Fee provision.

Sunshine State appealed the district court’s judgment. We

exercise jurisdiction over the final decision of the district court un-

der 28 U.S.C. § 1291.

III. STANDARD OF REVIEW

We review a district court’s summary judgment order de

novo. Ward v. U.S. Att’y Gen., 608 F.3d 1198, 1200 (11th Cir. 2010)

(per curiam). “Summary judgment is appropriate if the pleadings,

the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.” Id. (quota-

tion marks omitted).

We review a district court’s grant of a motion to dismiss de

novo, “accept[ing] the allegations in the complaint as true, and con-

stru[ing] them in the light most favorable to the plaintiff.” Perez v.

U.S. Bureau of Citizenship & Immigr. Servs., 774 F.3d 960, 964 (11th

Cir. 2014) (per curiam).

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12 Opinion of the Court 24-10007

We also review questions of law, such as the construction of

a statute, de novo. Brasil v. Sec’y, Dep’t of Homeland Sec., 28 F.4th

1189, 1192 (11th Cir. 2022) (per curiam).

When we review agency action, we “must exercise [our] in-

dependent judgment in deciding whether an agency has acted

within its statutory authority.” Loper Bright Enters. v. Raimondo, 603

U.S. 369, 412 (2024). To be sure, “[c]areful attention to the judg-

ment of the Executive Branch may help inform that inquiry.” Id.

at 412–13. But we “need not and under the APA may not defer to

an agency interpretation of the law simply because a statute is am-

biguous.” Id. at 413. 2

IV. DISCUSSION

Our task here is straightforward. The Act directs the Secre-

tary to levy an annual Integrity Fund Fee on “each regional center

designated under subparagraph (E).” 8 U.S.C. § 1153(b)(5)(J)(ii)(I).

We must determine whether this phrase applies to regional centers

whose designations began before Congress passed the Act.

Our answer to this question of statutory interpretation be-

gins with the statutory text. United States v. Garcon, 54 F.4th 1274,

1277 (11th Cir. 2022) (en banc), abrogated on other grounds by Pulsifer

2 The parties finished briefing this appeal before the Supreme Court an-

nounced its decision in Loper Bright. Loper Bright displaced the more deferential

standard for reviewing agencies’ statutory interpretations that Chevron U.S.A.

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), laid out. We follow Loper

Bright here, but the differences between Loper Bright and Chevron do not mate-

rially affect our decision.

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v. United States, 601 U.S. 124 (2024). We consider the text’s terms,

the structure of the Act, and the context in which section

1153(b)(5)(J)(ii)(I) arises. When we do, the best reading of that text

requires the conclusion that the Integrity Fund Fee applies to all

designated regional centers, no matter when their designation

began.

A. Both pre- and post-Act regional centers are “desig-

nated under subparagraph (E).”

We start with the statutory text. But our analysis ends there

only if the text provides an unambiguous answer to our question.

See United States v. F.E.B. Corp., 52 F.4th 916, 926 (11th Cir. 2022).

This text does not.

The relevant part of the statute directs the Secretary to “col-

lect for the Fund an annual fee . . . from each regional center des-

ignated under subparagraph (E).” 8 U.S.C. § 1153(b)(5)( J)(ii)(I).

That leaves us with questions: Does “designated” refer to a discrete

event in the past or to an ongoing status as a designated regional

center? And what does it mean for a designation to be “under sub-

paragraph (E)”?

We begin with the word “designated.” As our sister circuit

has observed, a past participle like “designated” is, linguistically, an

“uncommonly flexible device.” Bernal v. NRA Grp., LLC, 930 F.3d

891, 895 (7th Cir. 2019). Past participles can suggest a “past or com-

pleted action or time.” Fla. Dep’t of Revenue v. Piccadilly Cafeterias,

Inc., 554 U.S. 33, 39 (2008) (quoting American Heritage Dictionary

1287 (4th ed. 2000)). But they also “are routinely used as adjectives

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14 Opinion of the Court 24-10007

to describe the present state of a thing.” Henson v. Santander Con-

sumer USA Inc., 582 U.S. 79, 84 (2017). Put simply, the temporal

content of this critical word is unclear. Cf. Bello v. Gacki, 94 F.4th

1067, 1072 (D.C. Cir. 2024) (remarking that “‘designated by’ is a

temporally ambiguous adjectival phrase”).

And the phrase “under subparagraph (E)” does not clarify

things. “The word ‘under’ has many dictionary definitions and

must draw its meaning from its context.” Ardestani v. INS, 502 U.S.

129, 135 (1991). So we must look beyond that individual phrase.

We do that in the next sections. And when we consider the

Act as a whole, several reasons warrant the conclusion that pre- and

post-Act regional centers alike are “designated under subparagraph

(E).” We’ll call this the “broad interpretation” of 8 U.S.C.

§ 1153(b)(5)( J)(ii)(I), in contrast with Sunshine State’s narrower al-

ternative.

1. The broad interpretation is consistent with the overall stat-

utory framework of the EB-5 program.

First, the broad interpretation fits right in with the overall

framework that the Act creates.

The Act’s reference to its own “subparagraph (E)” lies at the

heart of this case.3 Subparagraph (E), in turn, is entitled “Regional

3 For the sake of convenience, we refer colloquially to this provision as sub-

paragraph (E) of the Act. More precisely, though, it is subparagraph

203(b)(5)(E) of the Immigration and Nationality Act, which the EB-5 Reform

and Integrity Act of 2022, or “Act,” added. Pub. L. No. 117-103, div. BB,

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center program.” 8 U.S.C. § 1153(b)(5)(E). The critical part of that

subparagraph is its first clause, titled “In general.” This clause ex-

plains how a prospective immigrant can obtain a visa by investing

in a regional center:

Visas under this subparagraph shall be made available

through September 30, 2027, to qualified immigrants

(and the eligible spouses and children of such immi-

grants) pooling their investments with 1 or more

qualified immigrants participating in a program im-

plementing this paragraph that involves a regional

center in the United States, which has been desig-

nated by the Secretary of Homeland Security on the

basis of a proposal for the promotion of economic

growth, including prospective job creation and in-

creased domestic capital investment.

Id. § 1153(b)(5)(E)(i).

It’s a clunky sentence. But as with people, statutes’ awk-

ward moments are often the most revealing. Subparagraph (E) is

drafted inelegantly because it’s doing three distinct things. It (1)

defines “a program implementing this paragraph that involves a re-

gional center,” (2) provides that regional centers are to be “desig-

nated by the Secretary of Homeland Security on the basis of a pro-

posal for the promotion of economic growth,” and (3) makes

§ 103(b)(1), 136 Stat. at 1075–78. We treat other subparagraphs that the Act

added the same way.

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16 Opinion of the Court 24-10007

available visas for “qualified immigrants . . . participating” in the re-

gional-center program. Id. (emphases added).

Subparagraph (E) makes clear that the Act centers on and

governs the EB-5 regional-center program. Regional centers are

“designated” as part of that program. And immigrants “participat-

ing” in the program are eligible to obtain visas.

This framework—and much of subparagraph (E)’s text—de-

rives from the statutes that preceded the Act. Those laws reveal

that the “program,” rather than a “designation,” is subparagraph

(E)’s key unit.

Indeed, the original regional-center statute didn’t involve

the notion of “designation” at all. See Pub. L. No. 102-395, § 610,

106 Stat. at 1874. Rather, the 1992 law that created the regional-

center “pilot program” provided simply that “the Secretary of

State, together with the Attorney General, shall set aside visas for

a pilot program . . . [and s]uch pilot program shall involve a re-

gional center in the United States for the promotion of economic

growth.” Id. § 610(a). It wasn’t until a decade later that Congress

amended the law to specify that regional centers be “designated.”

See Pub. L. No. 107-273, § 11037(a), 116 Stat. at 1847.

So subparagraph (E) governs the regional-center “program

implementing this paragraph” and links the secondary concept of

“designat[ion]” to that program.

Sunshine State urges us to understand “designation” nar-

rowly. In Sunshine State’s view, designation occurs at one mo-

ment in time and operates independently of the EB-5 program for

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24-10007 Opinion of the Court 17

which a regional center is designated. But the statutory text and

common sense require the opposite conclusion.

Yes, Sunshine State first became “designated” under a differ-

ent statute, one that predated the Act’s addition of subparagraph

(E). But Sunshine State was designated as part of the same re-

gional-center program that now finds a home in subparagraph (E).

To be “designated under subparagraph (E)” is to be designated to

participate in the regional-center program under subparagraph (E).

The only regional-center program is the one under subparagraph

(E). So any designation for that program must now operate under

subparagraph (E), too.

Sunshine State fights this common-sense answer, relying

mainly on the Behring decision. But assuming without deciding

that Behring was right, that ruling supports the interpretation we

conclude governs.

As we’ve noted, the Behring court addressed USCIS’s deter-

mination that the Act required it to “deauthorize any regional cen-

ters that [USCIS] had designated” under previous statutes. Behring,

2022 WL 2290594, at *4. The court held that the plaintiff there was

“exceedingly likely” to establish in a merits proceeding that

USCIS’s decision was arbitrary and capricious. Id. at *6. In the Beh-

ring court’s view, the agency scarcely justified its interpretation of

the Act, and the text of the statute suggested Congress did not in-

tend to remove the designation of previously authorized regional

centers. Id. at *4, *6.

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The court then rejected USCIS’s argument that the Act de-

designated all regional centers because it “repealed” the prior re-

gional-center statute. Id. at *4. To the contrary, the court posited,

rather than intending to deauthorize all regional centers, “perhaps

Congress was simply removing language from one place in the tap-

estry of statutory law . . . and inserting the new language into a

more stable part.” Id.

The same logic would apply here. Behring preserved pre-Act

regional centers’ designations based on the Act’s retention of the

regional-center program even while the Act imposed new rules.

On this reading, the Act did not eliminate the program and then

create a new (but strikingly similar) program from scratch. Rather,

the Act’s alleged “repeal” of the old regional-center statute was re-

ally a relocation. And if the Act’s wholesale elimination of the old

law in fact just relocated the statutory authority for the regional-

center program, the authority to designate regional centers must

have been in the statutory U-Haul truck as well.

Assuming Sunshine State believes Behring’s interpretation of

the Act was correct, 4 the game is up. To rule for Sunshine State,

we’d need to conclude that the Act sufficiently rooted pre-Act re-

gional centers in the new statute for them to maintain their

4 And Sunshine State must believe as much. If Behring’s view were wrong,

then pre-Act regional centers would be fully de-designated. In that case, Sun-

shine State would be in a situation no better than the one it faces here. To

participate in the regional-center program, Sunshine State would have to be-

come “designated” under the Act’s process in subparagraph (E)—subjecting it

to the very fees it now claims do not apply.

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24-10007 Opinion of the Court 19

designations but that the old statute somehow remained the source

of those designations. But for the reasons we’ve explained, we just

don’t see how that’s possible.

2. Congress’s usage of “designate,” “designation,” and “estab-

lishment” supports the broad interpretation.

Two aspects of how Congress used—and didn’t use—forms

of “designate” also support the broad interpretation.

First, Congress’s other uses of “designation” in the statute

show that a regional center’s designation is an ongoing status—not

something that happens once and is over. The statute’s paragraph

about the EB-5 program contains several references to the Secre-

tary’s ability to “suspend” or “terminate” a regional center’s desig-

nation in some cases. 8 U.S.C. § 1153(b)(5)(E)(vii)(III), (F)(v)(II),

(G)(iii)(II)(dd), (H)(iv)(I), (I)(iv), (J)(iv)(II). That would be illogical

if Congress intended the word “designation” and its variants to re-

fer to a discrete past act. After all, it would be hard to “suspend” or

“terminate” something that occurred only in the past and lacks con-

tinuing status. But the usage makes perfect sense if we read the

regional center’s “designation” as an ongoing status that the Secre-

tary may pause or end. That suggests we should interpret “desig-

nated” in subclause (J)(ii)(I) the same way. We presume that

“word[s] or phrase[s] . . . bear the same meaning throughout a text”

when a statute uses “materially the same language.” Hylton v. U.S.

Att’y Gen., 992 F.3d 1154, 1158–59 (11th Cir. 2021) (quoting Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 170 (2012)).

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20 Opinion of the Court 24-10007

Congress’s use of “designated” in subparagraph (E)’s critical

“In general” clause leads to the same conclusion. Again, that clause

directs the Secretary to make visas available through “a program

implementing [8 U.S.C. § 1153(b)(5)] that involves a regional center

in the United States, which has been designated by the Secretary of

Homeland Security” based on a proposal for economic growth, job

creation, and capital investment. 8 U.S.C. § 1153(b)(5)(E)(i). Con-

gress used the present-perfect tense here: “has been designated.”

As we noted is true of past participles, the present-perfect tense can

support multiple temporal meanings. It “can refer to either (1) ‘an

act, state, or condition that is now completed’ or (2) ‘a past action

that comes up to and touches the present.’” Hewitt v. United States,

No. 23-1002, __ S. Ct. __, slip op. at 6 (U.S. June 26, 2025) (empha-

ses omitted) (quoting The Chicago Manual of Style § 5.132 (17th ed.

2017)).

But only the second option makes sense here. It nearly goes

without saying: When the Secretary terminates a regional center’s

designation as part of the EB-5 program, it may no longer partici-

pate in the program. Interpreting “has been designated” to refer to

a “state . . . that is now completed” would produce an unnatural

result. It would mean the Secretary must make visas available for

investors in a regional center that was designated at some point in

the past but later had its designation terminated due to misconduct.

Moreover, “[w]hat makes this the present-perfect tense is

that, in each of its manifestations, there exists a connection to the

present.” Id. at 7 n.5 (citing Rodney Huddleston & Geoffrey K.

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24-10007 Opinion of the Court 21

Pullum, The Cambridge Grammar of the English Language 143 (2002)).

If Congress sought to refer solely to the historical fact of designa-

tion—with no regard to a regional center’s present status—one

would expect it to use a different tense. See id. at 8 (“[I]f an event

is merely a relic of history . . . the past-perfect (not the present-per-

fect) tense would usually be the more appropriate verb choice.”);

Turner v. U.S. Att’y Gen., 130 F.4th 1254, 1262 (11th Cir. 2025) (“[I]f

an action is ‘wholly in the past—and the time is relatively definite—

the simple past is called for.’” (quoting Bryan Garner, Garner’s Mod-

ern American Usage 802–03 (3d ed. 2009))).

Second, Congress chose to discuss the criteria for a new re-

gional center in terms of “establishment” rather than “designating”

or “designation.” Besides the “In general” clause we discussed in

section IV.A.1, supra, subparagraph (E) contains a clause entitled

“Establishment of a regional center.” 8 U.S.C. § 1153(b)(5)(E)(iii).

This clause details the requirements for a regional center and what

a regional-center proposal must include. Id. The distinction be-

tween “establishment” and “designation” is meaningful.

Sunshine State argues that clause (E)(i), the “In general”

clause, governs the availability of visas to immigrants who invest in

regional centers but neither empowers anyone to designate re-

gional centers nor establishes criteria for becoming designated. In

Sunshine State’s view, clause (E)(iii), the “Establishment of a re-

gional center” clause, governs those tasks. So, Sunshine State rea-

sons, only regional centers designated after the Act and graded

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22 Opinion of the Court 24-10007

against the criteria in clause (E)(iii) can be considered “designated

under subparagraph (E).” Id. § 1153(b)(5)(J)(ii)(I).

This argument falls apart quickly. It cannot be the case, as

Sunshine State suggests, that clause (E)(iii), rather than (E)(i), is the

source of the authority to designate regional centers. Clause (E)(iii)

lacks any form of the word “designate” and doesn’t say who is to

do the designating. See id. § 1153(b)(5)(E)(iii). Meanwhile, clause

(E)(i) does both, currently naming the Secretary of Homeland Se-

curity as the “designat[ing]” person. Id. § 1153(b)(5)(E)(i).

Ultimately, though, whether the power to designate re-

gional centers lies in clause (E)(i) or (E)(iii) is less critical than what

these clauses show about what it means to “designate” a regional

center. 5 Clause (E)(iii) is entitled “Establishment of a regional cen-

ter.” It governs the creation—or establishment—of new regional

centers. And so it speaks in terms of what “proposal[s] to establish

a regional center” must include. Id. § 1153(b)(5)(E)(iii). Clause

(E)(i), on the other hand, speaks of regional centers that already

“ha[ve] been designated.” Id. § 1153(b)(5)(E)(i).

And clauses (E)(i) and (E)(iii) don’t just differ temporally. A

subtle but important distinction separates the word “designate,”

which clause (E)(i) uses, and “establish,” which clause (E)(iii) em-

ploys. Something is “established” at a single moment in time.

That’s why the first definition of “establish” is “[t]o settle, make, or

5 After all, a regional center designated under either clause (E)(i) or clause

(E)(iii) would still be “designated under subparagraph (E).”

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24-10007 Opinion of the Court 23

fix firmly; to enact permanently.” Establish, Black’s Law Dictionary

(12th ed. 2024) (emphasis added). “Designate,” for its part, means

“[t]o choose (someone or something) for a particular job or pur-

pose.” Designate, Black’s Law Dictionary (12th ed. 2024). So a “des-

ignation” can attach to someone or something only after that some-

one or something already exists. And a designation can be revoked.

This difference between the language in clauses (E)(i) and

(E)(iii) only reinforces the point we’ve already made: The Act’s sub-

paragraph (E)—specifically clause (E)(i)—provides the only source

of authority for a regional center’s designation. And because des-

ignation is a status, any regional center that is currently designated

is necessarily “designated under subparagraph (E).”

If Congress had wanted the Integrity Fund Fee to apply to

only post-Act regional centers, it could have used the word it em-

ployed elsewhere in the statute and limited the fee to “each re-

gional center established under subparagraph (E).” Or it could have

referenced clause (E)(iii) rather than the subparagraph discussing

the regional-center program as a whole. See EB5 Holdings, 717 F.

Supp. 3d at 103 (“[H]ad Congress intended to reference subsection

1153(b)(5)(E)(iii) specifically, it could have, and presumably would

have, done so more explicitly.”). That Congress chose not to

weighs against Sunshine State’s position.

3. A narrow interpretation clashes with the statute as a whole.

Sunshine State argues that the context of the rest of the stat-

ute favors its narrow interpretation of the regional centers “desig-

nated under subparagraph (E).” Sunshine State’s strongest

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24 Opinion of the Court 24-10007

argument invokes the familiar surplusage and meaningful-varia-

tion canons. The canon against surplusage means we read statutes

in a way that “if it can be prevented, no clause, sentence, or word

shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews,

534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174

(2001)). The meaningful-variation canon exists on the flipside of

the surplusage canon. Under the meaningful-variation canon, we

presume that, when a statute uses one term in one place and a dis-

tinct term elsewhere, the difference matters—that is, the distinct

words have different meanings. See Sw. Airlines Co. v. Saxon, 596

U.S. 450, 457–58 (2022).

Here, Sunshine State focuses on the statute’s reference to

“each regional center designated under subparagraph (E).” 8 U.S.C.

§ 1153(b)(5)( J)(ii)(I) (emphasis added). Sunshine State argues that

the end of that phrase would be superfluous if all regional centers

are “designated under subparagraph (E).” That qualifier must do

some textual work, Sunshine State posits, and that work limits the

Integrity Fund Fee’s application to only post-Act regional centers.

As Sunshine State points out, the Act’s text often uses terms such

as “[e]ach regional center,” “any regional center,” or “[a] regional

center” without the subparagraph (E) qualifier. E.g., id.

§ 1153(b)(5)(F)(i), (I)(iii), (H)(i). So when Congress did use the qual-

ifier, Sunshine State contends, we must give distinct meaning to

that choice.

This argument is not without force. The text does refer to

“each regional center designated under subparagraph (E)” even

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24-10007 Opinion of the Court 25

though simply saying “each regional center” would be a quicker

way to refer to all regional centers, pre- and post-Act. USCIS sug-

gests no alternative construction of the difference between “each

regional center” and those “designated under subparagraph (E).” 6

But we interpret “statutes, not isolated provisions.” King v.

Burwell, 576 U.S. 473, 486 (2015) (quoting Graham Cnty. Soil & Wa-

ter Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 290

(2010)). And reading the Act as a whole, as we do above, shows

why Sunshine State’s position cannot be correct. In fact, if we took

Sunshine State’s argument to its logical conclusion, that argument

would be self-defeating.

Consider the Act’s other references to subparagraph (E). As

one example, subparagraph (S) of the Act states that “[n]otwith-

standing the expiration of legislation authorizing the regional cen-

ter program under subparagraph (E),” the Secretary of Homeland

Security must continue processing EB-5 applications filed at least a

year earlier. 8 U.S.C. § 1153(b)(5)(S). This provision protects EB-5

applicants in case Congress fails to extend the Act’s visa set-aside

6 It is conceivable that Congress intended the unqualified term to encompass

both currently “designated” regional centers and those whose designation is

suspended or terminated. For example, consider a regional center with a tem-

porarily suspended designation. Its employee comes under a permanent in-

junction “in connection with the offer, purchase, or sale of a security or the

provision of investment advice” during that suspension. 8 U.S.C.

§ 1153(b)(5)(I)(iv)(I). Could the Secretary fully terminate that regional center’s

designation on that basis? See id. § 1153(b)(5)(I)(iv). Perhaps. But because

USCIS does not raise this point, we do not rely on it here.

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26 Opinion of the Court 24-10007

before its scheduled expiration in 2027. See id. § 1153(b)(5)(E)(i),

(S).

Sunshine State argues that this provision protects immi-

grants who invested in pre-Act regional centers. But the protec-

tions concern the “regional center program under subparagraph (E).”

Id. § 1153(b)(5)(S) (emphasis added). If Sunshine State is correct

that pre-Act regional centers are not “designated under subpara-

graph (E),” then those regional centers would have little to do with

the “regional center program under subparagraph (E).” The pro-

tections of subparagraph (S) would not apply.

As another example, Sunshine State points to a clause within

subparagraph (E) as implying that Congress presumed pre-Act re-

gional centers “remained viable” after the Act. But while this

clause may show pre-Act regional centers’ continued viability, it

doesn’t show that they are exempt from the fee.

This clause protects immigrants who began participating in

the regional-center program before the Act. It provides,

In processing petitions [for immigrant status] under

section 1154(a)(1)(H) of this title for classification un-

der this paragraph, the Secretary of Homeland Secu-

rity . . . shall deem such petitions to include records

previously filed with the Secretary pursuant to sub-

paragraph (F) if the alien petitioner certifies that such

records are incorporated by reference into the alien’s

petition.

Id. § 1153(b)(5)(E)(ii).

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24-10007 Opinion of the Court 27

Subparagraph (F), in turn, relates to the applications that re-

gional centers must make about their “investment offering[s]” be-

fore immigrants can use investments in the enterprises to qualify

for visas. Id. § 1153(b)(5)(F)(i). Under clause (F)(ii), once USCIS

approves a regional center’s investment offering—“including an

approval before March 15, 2022”—EB-5 seekers can rest assured

that an investment in that offering fulfills the requirements of the

EB-5 program. Id. § 1153(b)(5)(F)(ii).

Sunshine State points to subparagraph (E)’s mention of “rec-

ords previously filed pursuant to subparagraph (F)” and asserts that

it effectively incorporates subparagraph (F)’s deference provision

and its specific mention of “an [investment-offering] approval be-

fore March 15, 2022,” the Act’s date of enactment. So, Sunshine

State urges, subparagraph (F) shows that Congress envisioned that

at least some pre-Act regional centers would continue to take new

investments in their previously approved offerings.

We agree, but we don’t see how that helps Sunshine State.

That Congress expected that pre-Act regional centers may con-

tinue operating after the Act says nothing about whether Congress

intended for those pre-Act regional centers to pay the Integrity

Fund Fee. Arguably, Congress’s acknowledgment that some pre-

Act regional centers would continue to exist makes it even less

likely that Congress would have exempted pre-Act regional centers

from the annual fee. After all, Congress enacted the fee to fund a

mechanism to prevent and investigate fraud—a concern that arose

from the pre-Act regional centers. It beggars belief that Congress

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28 Opinion of the Court 24-10007

would impose a fee on only post-Act regional centers to fund in-

vestigations of pre-Act regional centers that prompted the fraud

concerns.

Not only that, but subparagraph (F) reveals a significant

weakness in Sunshine State’s argument. Its language shows that

something can happen “under” a statutory provision even if it oc-

curred before that provision’s enactment. Subparagraph (F) speaks

of investment-offering approvals “under this subparagraph, includ-

ing an approval before March 15, 2022,” the date of the subpara-

graph’s enactment. Id. § 1153(b)(5)(F)(ii) (emphasis added). This

wording suggests that Congress viewed approvals before the en-

actment of subparagraph (F) as still qualifying as approvals “under”

subparagraph (F). (Had it thought otherwise, Congress could have

written of approvals “under this subparagraph or before the date of

the enactment.”)

We ordinarily presume that instances of the same word in

the same statute will have the same meaning. See United States v.

Jackson, 55 F.4th 846, 858–59 (11th Cir. 2022), aff’d sub nom. Brown

v. United States, 602 U.S. 101 (2024). So too here. Congress made

clear that the word “under” does not have the narrowly restricted

meaning Sunshine State advocates. True, Congress did not spell

out the Act’s date of enactment when it levied the Integrity Fund

Fee on regional centers “designated under subparagraph (E).” But

the word “under” means the same thing in both subparagraphs. So

designations “under” subparagraph (E) include designations that

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24-10007 Opinion of the Court 29

predate enactment of the current statutory home for the regional-

center program’s designation power.

In short, Sunshine State repeatedly tries to do the statutory

Hokey Pokey: put pre-Act regional centers “in” with respect to the

benefits of the Act but put them “out” when it comes to the costs.

But Sunshine State only “turns itself around.” If its arguments were

true, Sunshine State would likely be exempt from the Integrity

Fund Fee—but only because it would have lost its designation as a

regional center altogether.

B. The Integrity Fund Fee is not retroactive.

Sunshine State also argues that it would be “unlawfully ret-

roactive” for USCIS to require it to pay the Integrity Fund Fee. In

Sunshine State’s view, the annual fee would “impose new duties”

on pre-Act regional centers based on their past conduct. The pre-

sumption against statutory retroactivity, Sunshine State suggests,

prohibits imposing the Integrity Fund Fee on pre-Act regional cen-

ters. 7 This argument falls flat.

7 Although Sunshine State styles its retroactivity argument as an alternative

theory, that argument is ultimately a variation of its principal, ultra vires the-

ory—that USCIS violates the Act in imposing the Integrity Fund Fee on a pre-

Act regional center. But Sunshine State does not complain of a retroactive

effect in the ordinary sense of “altering the past legal consequences of past ac-

tions.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 219 (1988) (Scalia, J.,

concurring). Instead, it discusses a “secondary” retroactive effect. See id. at

220 (“A rule that has unreasonable secondary retroactivity—for example, al-

tering future regulation in a manner that makes worthless substantial past

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30 Opinion of the Court 24-10007

We assess arguments about statutory retroactivity using the

two-step test from Landgraf v. USI Film Prods., 511 U.S. 244 (1994).

See Rendon v. U.S. Att’y Gen., 972 F.3d 1252, 1258 (11th Cir. 2020).

First, we “determine whether Congress has expressly prescribed

the statute’s proper [temporal] reach.” Landgraf, 511 U.S. at 280.

Second, if Congress did not do so, we consider whether the statute

would have a “retroactive effect” in that “it would impair rights a

party possessed when he acted, increase a party’s liability for past

conduct, or impose new duties with respect to transactions already

completed.” Id.

Sunshine State’s effort to recast a future fee as a “penalty on

old conduct” fails. We assume without deciding that the Act is am-

biguous enough as to whether Congress prescribed its temporal

reach under step one because step two is cut and dry.

Without a doubt, the Integrity Fund Fee is forward-looking.

The first of these fees came due many months after Congress

passed the Act. And as we’ve explained, the Act requires all cur-

rently designated regional centers to pay the annual Integrity Fund

Fee. A prospective fee for continued participation in the regional-

center program is not a new duty with respect to a transaction

investment incurred in reliance upon the prior rule—may for that reason be

‘arbitrary’ or ‘capricious’ and thus invalid.” (citation omitted)). Secondary ret-

roactive effects may be more appropriately challenged through arbitrary-or-

capricious review. See id. That said, Sunshine State did not maintain before

us the arbitrary-or-capricious challenge it raised in the district court. It also

declined to make constitutional claims that can apply to government action

with secondary retroactive effects.

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24-10007 Opinion of the Court 31

already completed. Cf. In re CF & I Fabricators of Utah, Inc., 150 F.3d

1233, 1237 (10th Cir. 1998) (declaring “not retroactive” a statute

imposing prospective fees on debtors who had already entered

bankruptcy). Indeed, the Act’s fee provision is precisely the type of

statute the Supreme Court has called “uncontroversially prospec-

tive.” Landgraf, 511 U.S. at 269 n.24 (describing “a new property

tax” as prospective even if it “may upset the reasonable expecta-

tions that prompted those affected to acquire property” before its

enactment). So the presumption against statutory retroactivity

does not affect our interpretation of the Act.

V. CONCLUSION

For the reasons we’ve explained, we affirm the district

court’s denial of Sunshine State’s motion for summary judgment

and its grant, in part, of USCIS’s motion to dismiss.

AFFIRMED.

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24-10007 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, Concurring:

I write separately to note two additional points that support

the Court’s interpretation. First, reading “designated under sub-

paragraph (E)” to exclude pre-Act regional centers would produce

an implausible outcome under other parts of the Act. Cf. Yellen v.

Confederated Tribes of Chehalis Rsrv., 594 U.S. 338, 359 (2021) (dis-

cussing interpretive canons giving way because of a “contextually

implausible outcome”). Namely, that contrary reading would

carve out pre-Act regional centers—the source of the fraud and

abuse that drove Congress to reform the program—from the Act’s

anti-fraud requirements.

One other part of 8 U.S.C. § 1153(b)(5) uses the precise

phrase “regional center designated under subparagraph (E).”1 Sub-

paragraph (G) requires “[e]ach regional center designated under

subparagraph (E)” to submit detailed annual statements certifying

its compliance with a range of requirements that the Act newly im-

plemented. 8 U.S.C. § 1153(b)(5)(G)(i). Those requirements insist

that “regional center[s] designated under subparagraph (E)” com-

ply with securities laws, preclude individuals who have committed

various offenses involving fraud or deceit from involvement in the

regional center, and follow certain rules when promoting invest-

ment opportunities or the visa process to foreign investors. See id.

§ 1153(b)(5)(G)(i)(I)–(III). And the reports subparagraph (G) re-

quires must provide detailed accountings of the capital invested in

1 Other than clause (E)(i) itself, the Act does not refer to “designated” regional

centers without the extra words “under subparagraph (E).”

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2 ROSENBAUM, J., Concurring 24-10007

the regional center and how the new commercial enterprise is us-

ing the capital allocated to it, making progress towards complet-

ing its projects, creating new jobs, and much more. Id.

§ 1153(b)(5)(G)(i)(IV)–(VII).

Then, a later part of this subparagraph permits the Secretary

to impose sanctions against a regional center for submitting false

annual reports or “conducting itself in a manner inconsistent with

its designation under subparagraph (E), including any willful, un-

disclosed, and material deviation by new commercial enterprises

from any filed business plan for such new commercial enterprises.”

Id. § 1153(b)(5)(G)(iii)(I).

As we’ve explained, when Congress passed the Act, a signif-

icant goal was ending the corruption and fraud that had plagued

regional centers for years. See 168 Cong. Rec. S1105 (daily ed. Mar.

10, 2022) (statement of Sen. Chuck Grassley); 168 Cong. Rec.

S1090–91 (daily ed. Mar. 10, 2022) (statement of Sen. Patrick

Leahy). Indeed, Congress’s reform to the EB-5 program targeted

the features of the regional-center program that “invite[d] fraud

and abuse.” Press Release, Sen. Chuck Grassley, Grassley, Leahy

Introduce New EB-5 Investor Visa Integrity Reforms (Mar. 18,

2021), https://www.grassley.senate.gov/news/news-releases/

grassley-leahy-introduce-new-eb-5-investor-visa-integrity-reforms

[https://perma.cc/R2Q7-TL98].

But adopting Sunshine State’s reading of “under subsection

(E)” would exempt pre-Act regional centers from the Act’s annual

report section. As a result, the Secretary would continue to lack

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24-10007 ROSENBAUM, J., Concurring 3

insight into pre-Act regional centers’ finances and operations. And

she would have fewer tools to sanction problematic conduct that

pre-Act regional centers commit. Given that pre-Act regional cen-

ters’ fraudulent and abusive behavior spawned these reforms that

the Act imposed in the first place, it would make no sense for the

Act to have left pre-Act regional centers to continue unchecked. So

excluding those regional centers from the tightened requirements

of the Act is an implausible reading we need not and do not make.2

Second, one other factor supports the broad interpretation

of “regional center designated under subparagraph (E).” The Act

includes a subparagraph—subparagraph (M)—detailing the

“[t]reatment of good faith investors following program noncompli-

ance.” 8 U.S.C. § 1153(b)(5)(M). That subparagraph gives a 180-

2 Of course, I do not propose to use legislative history to inject ambiguity into

unambiguous statutory language. See Bostock v. Clayton County, 590 U.S. 644,

674 (2020). But we deal here with a statutory phrase that is not nearly so clear.

See Maj. Op. at 13. Although I am aware that it has fallen out of favor in some

circles, we have recently reiterated that “congressional intent (and legislative

history) still have a legitimate place in the interpretive enterprise.” Drazen v.

Pinto, 106 F.4th 1302, 1345 (11th Cir. 2024) (quoting Harris v. Garner, 216 F.3d

970, 999 n.13 (11th Cir. 2000) (en banc) (Tjoflat, J., concurring in part and dis-

senting in part)). Indeed, many scholars have suggested that contemporary

textualism, or at least the iteration most averse to legislative history, has not

lived up to its promises of promoting determinacy in the law and limiting ju-

dicial discretion. See William N. Eskridge, Jr., et al., Textualism’s Defining Mo-

ment, 123 Colum. L. Rev. 1611, 1614 (2023). I echo Justice Sotomayor’s con-

sidered view. Most respectfully, I fail to see the wisdom of judges “clos[ing]

their eyes to reliable legislative history—and the realities of how Members of

Congress create and enact laws—when it is available.” Digital Realty Tr., Inc.

v. Somers, 583 U.S. 149, 171 (2018) (Sotomayor, J., concurring).

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4 ROSENBAUM, J., Concurring 24-10007

day grace period for immigrant investors whose regional center has

its designation terminated under the EB-5 program. Id.

§ 1153(b)(5)(M)(ii). Those investors retain their conditional perma-

nent resident status or place in line for immigrant status while find-

ing a different regional center to associate with or another new

commercial enterprise to invest in. See id. § 1153(b)(5)(M)(i), (v).

These protections suggest Congress expected pre-Act re-

gional centers to pay the Integrity Fund Fee and realized that such

payments or other new requirements may cause some pre-Act re-

gional centers to close. So it ensured good-faith investors wouldn’t

be left high and dry in that circumstance. “A court must interpret

a statute as a symmetrical and coherent regulatory scheme, and fit,

if possible, all parts into an harmonious whole.” Boroski v. Dyncorp

Int’l, 700 F.3d 446, 452 (11th Cir. 2012) (citation modified) (quoting

Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 133 (2000)). The broad interpretation of “designated under

subparagraph (E)” recognizes the Act’s coherent policy framework.

That subparagraph (M) dovetails with this framework reinforces

our conclusion.