EB-5 Litigation Update Post #7: Behring Wins EB-5 Lawsuit, Court Vacates 2019 EB-5 Modernization Rule, $500,000 TEAs
Today, the US District Court for the Northern District of California ruled in favor of Behring Regional Center, vacating the 2019 EB-5 Modernization Rule. The court agreed that DHS had no authority to implement the 2019 Rule due to the unlawful appointments of the Acting DHS Secretary and Acting USCIS Director who were appointed during the Trump administration without confirmation by the Senate.
Crucially, the court rejected DHS’s April 2021 ratification of the rule.
Behring gives a special thank you to Greenberg Traurig and the EB-5 Investment Coalition for its support and legal advocacy throughout this process.
So What Now? EB-5 Investment is Back to $500,000 for Now…
By vacating the 2019 EB-5 Modernization Rule, the original EB-5 program is back for a limited time.
The Court vacated the Rule and remanded the matter to DHS and it may take steps to reinstate the Final EB-5 Rule pursuant to Administrative Procedure Act’s rule-making process. DHS may also file an appeal and seek to stay the order while the appeal is pending.
The current sunset date for the EB-5 Regional Center Program is June 30, 2021. Congress is already discussing various legislative proposals for EB-5 reform. With Behring’s legal victory, we fully anticipate final bills will increase the required investment amount.
Our efforts are focused on achieving a long-term extension and meaningful EB-5 reform for a better and more sustainable EB-5 Program.
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