On June 22nd, the U.S. District Court for the Northern District of California ruled in Behring Regional Center LLC v. Chad Wolf, that Former Acting Homeland Security Secretary Kevin McAleenan was not properly serving in his position when he promulgated the EB-5 Modernization Final Rule, and accordingly, the new EB-5 Program regulations which took effect on November 21, 2019, must be “set aside.”
Although we understand that the possibility of the EB-5 Program rules reverting to pre-November 21st standards opens up many questions, including the possibility of lower investment amounts, we caution that the impact of the Behring Order is not immediately clear as USCIS has yet to issue formal guidance, and it is quite possible that DHS will choose to appeal the order and/or seek to reinstate the Program changes in a manner that will meet the district court’s requirement.
We are hopeful that USCIS will respond with timely guidance that will shed additional light on this matter.
