EB-5 Litigation Update Post #6: May 13, 2021 Hearing

May 16th, 2021 Peter Bibler

Behring Regional Center had its final EB-5 hearing on May 13, 2021 before the US District Court for the Northern District of California in its lawsuit against DHS and USCIS. In Behring Regional Center vs. Wolf, et al, Behring seeks to block the 2019 EB-5 Modernization Rule that derailed the EB-5 Program’s reasonable operability and nearly doubled the EB-5 Program’s required investment amounts.  

The primary legal issue here is whether the DHS Secretary Mayorkas’s ratification of the 2019 EB-5 Rule is valid under the Federal Vacancies Reform Act. On April 1, 2021, DHS notified the court that Secretary Mayorkas ratified the rule to attempt to correct any defect due to the former acting DHS Secretary McAleenan having been unlawfully appointed by President Trump when the 2019 EB-5 Rule was promulgated.  

On May 13, 2021, Magistrate Judge Jacqueline Scott Corley acknowledged that it has been successfully established that McAleenan was unlawfully serving as the acting DHS Secretary at the time the 2019 EB-5 Rule was enacted. The judge further acknowledged that the Vacancies Act states that actions taken in violation of the Act cannot be ratified. However, the judge still heard and considered arguments on why the ratification should be upheld 

See what others are reporting on the latest case developments in Behring’s EB-5 lawsuit against DHS:  

Law 360: “Judge Doubts DOJ Can Keep Trump-Era Eb-5 Rule Change

JD Supra: “Court May Invalidate 2019 EB-5 Regulations While Regional Center Legislative Expiration Looms”

EB-5 Investment Coalition: “Is Change Coming to the EB-5 Industry?

Behring is thankful for the opportunity for its claims to be carefully considered by the federal district court. We anticipate the court will issue a written decision in the coming week.  

An overview of Behring’s USCIS lawsuit can be viewed here Click here.

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