With the New Year in full swing, there\u2019s some movement on the EB-5 front. The Department of Homeland Security (DHS) today filed an unopposed motion to dismiss its\u00a0appeal to the Behring Regional Center lawsuit.<\/p>\n
The appeal was filed in August 2021 by Alejandro N. Mayorkas, Secretary of Homeland Security; Tracy Renaud, Acting Director, U.S. Citizenship and Immigration Services; Edie Pearson, USCIS Policy Branch Chief of the Immigrant Investor Program Office.<\/p>\n
In\u00a0Behring Regional Center v. Wolf case, the Behring Regional Center and the Greenberg Traurig law firm got the courts to disallow implementation of the EB-5 Modernization Rule, which reversed the required investment amount from $900,000 back to $500,000.<\/p>\n
\u201cThe decision to dismiss the appeal provides clarity that all the direct EB-5 cases filed with the reduced amount of $500,000 are approvable and the prior rules on targeted employment areas are in force,\u201d said\u00a0Bernie Wolfsdorf, former President of the American Immigration Lawyers Association.<\/p>\n
What the DHS dismissal means for the EB-5 industry<\/strong><\/p>\n Judge Jacqueline Scott Corley issued a ruling on\u00a0the Behring Regional\u00a0Center lawsuit in June 2021, which found former Homeland Security Secretary Kevin\u00a0McAleenan not\u00a0lawfully\u00a0serving\u00a0in his\u00a0position when he established the EB-5 Final Rule. The\u00a0EB-5 Modernization Rule\u00a0increased the minimum investment amount from $500,000 to $900,000 if the project\u00a0is located in\u00a0a Targeted Employment Area (TEA) and from $1 million to $1.8\u00a0million if outside of\u00a0a TEA.<\/p>\n Michael A. Harris, Esq., immigration lawyer for HarrisLaw, P.A. says the withdrawal of the DHS appeal of the Behring lawsuit means that EB-5 investors and the industry will be waiting to see if one of two things happens.<\/p>\n One of those is whether USCIS \u201cpromulgates new regulations which increase the minimum investment amount, provide new standards for determination of a TEA project location, and other integrity reform measures for investors, regional centers and projects,\u201d he said. He says a prior regulation allowed for displaced EB-5 investors to preserve their priority date when re-filing due to a failed project, and added, \u201cHow will USCIS address this scenario and others in the future?\u201d<\/p>\n He says the other possibility is if Congress passes new legislation codifying the regulations that USCIS sought to create.<\/p>\n \u201cWhether this also includes a\u00a0revival of the EB-5 Regional Center Program\u00a0and other changes is uncertain at the moment. There have been proposed changes to the EB-5 Program since 2015, but so far Congress has not passed any of them,\u201d says Harris.<\/p>\n