On the evening of June 22, 2021, the U.S. District Court for the Northern District of California disallowed the implementation of the 2019 EB5 visa Modernization Rule which increased the minimum required investment amount from $1 million to $1.8 million and from $500,000 to $900,000 for investments in Targeted Employment Area (TEA). In addition to increasing minimum investment amounts, the EB5 Modernization Rule removed the ability of states to determine Targeted Employment Area (TEA) eligibility resulting in longer processing times and more complex application process. As a result of these changes, new EB-5 investor petitions dropped significantly after November 2019.
The decision came after Behring Regional Center challenged the 2019 EB5 visa Modernization Rule. The lawsuit, filed against the U.S. government, alleged that the then-acting Secretary of Department of Homeland Security Kevin McAleenan was not properly serving in his position when he decreed the EB5 Modernization Rule which was a clear violation of Administrative Procedures Act as the acting official had no legal authority. The court agreed that Kevin McAleenan was not legally serving as an Acting Secretary at that time and stopped the implementation of the new EB-5 rule effective immediately. However, the Court’s decision does not disallow the current Secretary of Homeland Security Alejandro N. Mayorkas to reinstate the Final EB-5 Modernization Rule again without complying with the Administrative Procedure Act’s (APA) rule making process.
Following the Court’s decision and effective immediately, the EB5 minimum investment requirement goes back to $500,000 for a limited time and the TEA designation must be provided by the specific State of the investment project and not by the United States Citizenship and Immigration Services (USCIS).
What new and existing EB-5 investors should be doing now? The Court’s decision also means that the investments amounts might increase again in the coming weeks and only applications filed during that period will be accepted with the lower expected amount.
In light of the Court’s decision, the U.S. Citizenship and Immigration Services (USCIS) confirmed that starting on June 22, 2021 and for the time being (during which USCIS will consider its next steps and its legal options), it will apply the EB5 visa regulations that were in effect before November 21, 2019. This means that applications for EB5 visas (green card) filed after June 22, 2021 and until any new changes are announced are subject to the following EB5 visa requirements:
- The EB5 minimum investment amount in a Targeted Employment Area (TEA) is $500,000 and $1 million outside TEA;
- The states can designate the high unemployment TEAs;
- There is no priority date retention based on an approved Form I-526;
- Application of prior USCIS procedures to remove conditions on permanent residence.
We expect this temporary opening to lead to a surge in EB5 visa applications in the coming weeks. Individuals who are considering applying for the EB5 visa program or are in the process of applying and if the investment is not in a regional center should consider filing the EB5 visa application as a soon as possible while the investment amounts are lower. Keep in mind that this is not possible for the EB5 Immigrant Investor Regional Center Program because the program expired on June 30, 2021 and USCIS is not accepting EB5 petitions under the Regional Center Program filed on or after July 1, 2021. If you intend to file an EB5 investment visa green card application, please contact us, your experienced EB5 visa lawyer in Miami, Florida USA. This is a developing immigration rule and we will give updates on the situation as we learn more.
Malescu Law P.A. – Immigration Lawyers