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EB-5 Litigation Update: Government Drops Appeal of Behring Regional Center LLC v. Mayorkas

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 good news and provides clarity for pending I-526 EB-5 immigrant investor petitions that may have been impacted since the Department of Homeland Security filed its initial appeal in August 2021. The appeal abandonment indicates:

  • The Trump Administration’s November 2019 EB-5 Immigrant Investor Program Modernization Final Rule remains vacated and invalid.
  • EB-5 regulations in existence prior to November 2019 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 EB-5 regulations in existence prior to November 2019, 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 job creation (non-Regional Center) EB-5 petitions that are filed will also be adjudicated under the EB-5 regulations in existence prior to November 2019.

Notwithstanding these positive developments, the public should be reminded that the EB-5 Regional Center program has yet to be reauthorized by Congress and currently only direct job creation (non-Regional Center) I-526 petitions may be filed under these regulations.

 

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