DHS drops appeal of Behring lawsuit — $500,000 EB-5 investments will stick around

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Jan 19, 2022

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In welcome news to EB-5 investors and stakeholders, the Department of Homeland Security dismissed its appeal of the Behring Regional Center lawsuit. This means the government is accepting the court-ruled return to $500,000 investments and regulations that existed before the Modernization Rule that was wrongly implemented November 21, 2019. The Behring lawsuit resulted in a June 2021 court ruling that vacated the Modernization Rule of November 2019. The court ruled that the regulations were not legitimate because the acting DHS director was not properly installed. Additionally, the court ruled that the ratification by current DHS director Alejandro Mayorkas could not cure the original defect and was thus not valid. When the government appealed the decision, the EB-5 industry held its breath and some investors wondered if making a $500,000 would be subject to risk. Well, wonder and worry no more: the government is officially accepting the return to the old regulations and investment amounts.

Does this mean anything for EB-5 reauthorization?

Given the unprecedented state of EB-5 with the Regional Center Program now lapsed for over half a year, what does this decision portend for the industry? Will this impact or lend insight to the program’s reauthorization? We asked two immigration lawyers to share their thoughts. Lawyer Inderjit Sidhu welcomes the decision and the “clarity” it provides to petitions filed since the June 22, 2021, court decision. However Sidhu does not see the dismissal as the government’s desire to return to the EB-5 of previous years: “ I think this reflects the Biden Administration's positionto keep the statusquo with EB-5; however, I am concerned that this indicates that the Regional Center Program will not be authorized anytime soon.”

 Sidhu doesn’t see reauthorization as a priority for the current administration and regards the dismissal of the appeal and the lack of political activity with reauthorization as more a political issue rather than an economic one. Immigration lawyer Joseph Barnett also welcomes the news that the appeal is dropped. When asked what it could mean for the industry, he says it has “no impact” on reauthorization. He cautions against drawing any connections between the dismissal and reauthorization, or what USCIS will do with petitions held in abeyance. So count on $500,000 investing being here to stay — until if and when new EB-5 legislation comes. While many investors and stakeholders have been wishing for more, that’s still plenty of good news. See the Unopposed Motion For Voluntary Dismissal

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