Thursday January 6, 2022

NOVEMBER 2019 EB-5 FINAL RULE “SIGNIFICANTLY” REVISING MINIMUM INVESTMENT AMOUNT IS DEAD

by Rabindra Singh

The November 2019 EB-5 Immigrant Investor Program Modernization Final Rule which updated the minimum investment amounts to $1.8 million standard and $900,000 in a targeted employment area (TEA) is now dead.

On January 5, 2022, the Department of Justice (DOJ) filed an unopposed motion to dismiss DHS’ appeal of Behring Regional Center LLC v. Alejandro N. Mayorkas, et al. (formerly Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC).

Recall that on June 22, 2021, the United States District Court (Northern District of California) issued an order vacating the 2019 EB-5 Immigrant Investor Program Modernization Final Rule in a lawsuit titled, Behring Regional Center LLC v. Wolf et. al., (3:20-cv-09263-JSC). Later, DHS appealed the U.S. District Court decision. Eventually on January 5, 2022, the DOJ filed an unopposed motion to dismiss DHS’ appeal. 

Listed below are the major takeaways from recent development:

  • The November 2019 EB-5 Immigrant Investor Program Modernization Final Rule remains vacated and invalid.
  • Pre-November 2019 EB-5 regulations remain in effect, including  the required standard minimum investment amount of $1 million and $500,000 investment amounts for projects located in TEAs.
  • Permitting state designations of high unemployment TEAs.
  • New direct I-526 petitions that are filed will be adjudicated under the pre-November 2019 regulations.
  • I-526 petitions that have been filed since June 2021 will be adjudicated under the pre-November 2019 EB-5 regulations, including petitions that qualify under the $500,000 minimum investment amount and TEA certification rules. 

Last but not the least, it is important to note that EB-5 Regional Center program has yet to be reauthorized and currently only direct I-526 petitions may be filed under these regulations.

Should you have any questions about this recent development, please contact HSD Immigration at (312) 291-1234.

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