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EB-5 Litigation Update Post #2: Biden’s Announced Immigration Priorities Gives Hope for Behring’s Push for a Revitalized EB-5 Program

January 22nd, 2021 Kyle Behring

Not wasting any time, on his first day as the 46th US President, Biden signed 17 Executive Orders and unveiled his priorities for immigration reform. Six orders addressed immigration. He immediately repealed the travel ban on majority-Muslim countries. He also halted construction of the border wall near the border with Mexico. Importantly, Biden announced proposed legislation to provide a pathway to citizenship for nearly 11 million undocumented immigrants, granting a green card after having temporary legal status for 5 years, paying taxes, and passing a criminal background check and would be eligible to apply for citizenship three years later. A quicker path would be available to “Dreamers” under the DACA program.  

While the proposed bill has not been published, it is reported that Biden’s priority is to clear backlogs for both family and employment-based visas, recapture unused visas and eliminate per-country visa caps. See Greenberg Traurig’s summary of Biden’s proposed bill. We will provide further updates, particularly as they impact the EB-5 visa.  

While these announcements do not directly relate to Behring’s current litigation against DHS and USCIS, they do demonstrate the new administration’s renewed commitment to establishing a fair and efficient immigration policy. The new administration brings with it a new Justice Department, too, which will be headed (if confirmed by the Senate) by D.C. Circuit Court judge and former Obama Supreme Court nominee Merrick Garland, who already has received bipartisan support for the role. He is not known to be involved previously in any major immigration cases, but his reputation for judicial restraint means he would naturally support deference to agency interpretation of statutes. Behring is hopeful he will be mindful of the conclusions of GAO and other federal courts and concede that the previous administration overstepped when it circumvented the advice and consent process of the Senate for acting directors of DHS and USCIS and allow the EB-5 Modernization Rule to be vacated.   

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