EB-5 Update January 5, 2022

On January 5, 2022, the Department of Justice (DOJ) filed on 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). This is welcome news and clears up questions and uncertainty for pending I-526 petitions that may have been impacted since DHS filed their initial appeal in August 2021, including:

  • 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 $500,000 minimum investment amounts projects located in qualifying Targeted Employment Areas (TEAs).
  • 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 (such as TEA letters issued by state and local agencies).
  • New direct I-526 petitions that are filed will also be adjudicated under the pre-November 2019 regulations.

While this is certainly good news, members are reminded that the EB-5 Regional Center program has yet to be reauthorized and currently only direct I-526 petitions may be filed under these regulations.

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