The Department of Homeland Security (DHS) on January 5, 2022, filed an unopposed motion to dismiss its August 2021 appeal to a district court ruling in Behring Regional Center LLC v. Chad Wolf, et al. The previous ruling concluded that Former Acting Homeland Security Secretary Kevin McAleenan was not appointed under the proper procedure and therefore exceeded his statutory authority in issuing the July 2019 EB-5 Immigrant Investor Program Modernization Rule, a final rule that implemented substantial changes to the EB-5 investment immigration program.
As a result of the unopposed motion to dismiss, the following four features of the EB-5 program will remain in place:
- Minimum investment amounts: The standard minimum investment amount for the EB-5 program is $1 million, and the minimum investment in a targeted employment area (TEA) is $500,000. This reduction in the minimum investment amount will put the EB-5 direct investment option within reach for families seeking to relocate to the U.S. for business and personal reasons.
- No priority date retention: Under the Modernization Rule, certain EB-5 petitioners were authorized to retain the priority date of a previously approved EB-5 petition when they file a new petition. This priority date retention is not authorized.
- TEA designations: U.S. Citizenship and Immigration Services (USCIS) will continue to defer to state and local governments to designate certain areas as areas of high unemployment.
- Conditions on permanent residence: Derivative family members no longer need to file their own petitions to remove conditions on their permanent residence when they are not included in a petition to remove conditions filed by the principal investor.
Even with the news of the recent dismissal, the EB-5 Immigrant Investor Regional Center Program remains lapsed since June 2021. Currently, USCIS is re-evaluating the decision to hold—or not act on—any pending petition or application of the following forms received on or after July 1, 2021:
- Form I-924 (Application for Regional Center Designation Under the Immigrant Investor Program), unless the application is to amend a regional center’s name, organizational structure, ownership, or administration;
- Form I-526 (Immigrant Petition by Alien Investor) when the investment is associated with an approved regional center; and
- Form I-485 (Application to Register Permanent Residence or Adjust Status) and any associated forms, including I-765 (Application for Employment Authorization) and I-131 (Application for Travel Document), based on an approved Regional Center Form I-526.
USCIS continues to accept and review Form I-526 Petition under the Direct EB-5 Program, Form I-829 (Petition by Entrepreneur to Remove Conditions on Permanent Resident Status), and Form I-924A (Annual Certification of Regional Center).