In November 2019, then President Donald Trump and his administration implemented a change to the EB-5 visa program. Under the new rule, the investment capital required from prospective applicants raised from $500,000 to $900,000.
About a year later, a case was brought forward by Behring Regional Center and law firm Greenberg Traurig, in front of the US Federal Court. The lawsuit, filed against the Department of Homeland Security in December 2020, requested the District Court of North California disallow the EB-5 modernization rule based on the grounds that then-acting Secretary of the DHS, Kevin McAleenam, did not have the proper authority to implement the changes.
On the 22nd of June 2021, Judge Jacqueline Scott Corley granted a summary judgment in the plaintiff’s favour.
The grounds on which the case won, were that due to McAleenam’simproper appointment under the Successions Act, the legal standing of the rule is one of contention.
The Department of Justice argued that the Federal Vacancies Reform Act provides sufficient duties and powers to enact the changes. Judge Corley disagreed with the DOJ’s interpretation of the statute, ultimately agreeing with Behring Regional Center (BRC).
Further attempts to ratify the original ruling by the current acting Secretary of DHS, Alejandro Mayorkas also fell short of the law on similar grounds. After becoming state confirmed and ratifying the rule, BRC lawyers claimed the rule could not be ratified retrospectively, a motion held up by Judge Corley.
What Now for the EB-5?
Unfortunately, for supporters of the program, the ride is not over yet. The EB-5 Regional Center Program succumbed to a sunset clause on June 30th effectively causing the program to expire. Since then, USCIS has stated they will not be processing applications or issuing visas under the Regional Center program.
An additional bill due in congress is the EB-5 Reform and Integrity Act of 2021. Senator Chuck Grassley, a member of the Senate Judiciary Committee, and its former chairman Patrick Leahy submitted the bill, with many supporters of the program backing its approval.
The reform bill looks to improve national security risks surrounding the program and reduce cases of fraud.
Another worry amongst the program’s allies is that Secretary of the DHS, Alejandro Mayorkas could still take measures to reinstate the Modernization rule.
With several high-profile cases around the program garnering media attention, it is hoped that an already backlogged Congress find the time to sit on the matter.