EB-5 Litigation Update Post #10: DHS Has Dropped Their Appeal in Behring Regional Center v. Wolf, et al Lawsuit

In June 2021, Behring won its lawsuit against DHS, reversing the EB-5 regulations that were implemented in November 2019. In August 2021, DHS filed a motion to appeal the court’s ruling.

Today, January 5, 2022, the Department of Homeland Security withdrew its appeal of the Behring Regional Center LLC v. Alejandro N. Mayorkas, et al (21-16421) case ruling. This is tremendous win for Behring and stakeholders in the EB-5 industry in general. With the withdrawal of this appeal, there is now clarity regarding any previous uncertainty for pending I-526 petitions that may have been impacted by the initial appeal filed by DHS.

The key outcomes of this withdrawal include:

• The November 2019 EB-5 Immigrant Investor Program Modernization Rule remains vacated and invalid.
• The pre-November 2019 EB-5 regulations remain in effect, including the $500,000 minimum investment amount for projects located in qualifying TEAs.
• The regional center associated I-526 petitions that were filed as of June 30, 2021 will be adjudicated under the pre-November 2019 EB-5 regulations upon reauthorization of the regional center program, including petitions that qualify under the $500,000 minimum investment amount and TEA certification rules (including TEA letters issued by state and local agencies).
• New direct I-526 petitions will also be adjudicated under the pre-November 2019 regulations.

In summary, the $500,000 minimum investment amount is still currently in effect and will continue to be until Congress or DHS amends the existing EB-5 regulations. The lawsuit’s result has reset the table for US congressional negotiations on EB-5 program changes, fixes and adjustments that will ultimately result in a much better, stronger EB-5 regional center program. We look forward to seeing a resolution to reauthorizing the program shortly. Schedule a consultation with Behring’s Team to learn more

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