On January 5, 2022, the Secretary of the Department of Homeland Security (DHS), Alejandro N. Mayorkas, withdrew an appeal to a federal court decision regarding the United States EB-5 Immigrant Investor programme.
In the case of Behring Regional Center v. Wolf, Case No. 3:20-cv-09263 (N.D. Cal), Behring Regional Center filed a suit against DHS requesting the U.S. District Court of North California to disallow the implementation of the EB-5 Modernization Rule of 2019. Implemented by the Trump administration in November 2019, the Modernization Rule increased the required investment capital from $500,000 to $900,000.
On June 22, 2021, the federal court concluded that the processes used for the implementation of the EB-5 Modernization Rule were beyond the scope of power of the then-Acting Secretary of the DHS, Kevin McAleenan. The presiding federal judge, U.S. Magistrate Judge Jacqueline Scott Corley, ruled that McAleenan was improperly appointed by the Trump administration. Therefore, due to such clear violation of the Administrative Procedures Act, the Modernization Rule of 2019 was vacated and the minimum required investment was returned to its original amount of $500,000.
Due to the federal court decision, investors could once again apply to receive U.S. Green Cards for themselves and their qualifying dependents, namely for their spouse and unmarried children under the age of 21, with the lower ticket price of $500,000. The EB-5 programme has been amongst the most popular routes through which families from around the world, and especially from the Middle East and emerging markets choose to begin their immigration journeys to the United States. With the ticket price lowered, the programme was once again revitalised in late June 2021 and the number of EB-5 applications increased to an all time high.
Prior to the federal court ruling, DHS Secretary Alejandro Mayorkas, filed a statement with the court ratifying the price increase. Nevertheless, Judge Corley announced that her reading of the Federal Vacancies Reform Act does not permit Mayorkas to ratify the acts of McAleenan given that McAleenan did not have the authority to make the EB-5 rule change in the first place. The U.S. government then filed an appeal to the court decision.
With the withdrawal of the appeal, which could have potentially overturned the district court’s decision, the minimum investment amount for EB-5 investors remains at $500,000. Despite the price remaining at $500,000 for the moment, EB-5 industry stakeholders anticipate that a price increase is possible by either the United States Citizenship and Immigration Services (USCIS), the agency that administers the EB-5 programme, or by Congress through legislation.
The American Legal Center, a top immigration consultancy based in Dubai, helps individuals and families achieve their goals of the American dream by serving as active guides to their clients undertaking the EB-5 programme. The Legal Director of the firm, Shai Zamanian, states that “given the uncertainty surrounding the capital investment amount remaining at $500,000, we urge those interested in immigrating to the U.S. to act now.” Their team of U.S. licensed lawyers and professionals are readily available to assist all those seeking advice on immigrating to the United States by way of making an investment in the U.S. economy. “Our doors are open. Reach out to us for a free initial consultation to discuss your specific circumstances,” adds Zamanian.
