BREAKING NEWS: USCIS Appeals Decision in the Behring Regional Center Lawsuit

BREAKING NEWS: USCIS Appeals Decision in the Behring Regional Center Lawsuit

USCIS has filed their appeal of Judge Scott Corley’s ruling in the Behring Regional Center lawsuit on Monday, August 23rd: their last day to do so. 

The appeal was filed by Secretary of Homeland Security Alejandro Mayorkas, Acting Director of USCIS Tracy Renaud, and USCIS Policy Branch Chief of the Immigrant Investor Program Edie Pearson. To read the official notice of appeal filed with the Court, click here.   

There was no motion for a stay order filed with the appeal, which would indicate that USCIS would continue to accept petitions under the direct program filed with a capital investment amount of $500,000. 

Stay tuned for further updates.  

What does this appeal mean?  

By filing an appeal, USCIS is challenging the decision of the District Court, which allows the case to be heard before an appellate judge. Whether this appeal will be successful is uncertain, but the more pressing question at hand is whether USCIS will file a motion to stay. A stay, if approved by the appellate court, would allow a temporary stop on the prior order of the District Court and effectively reinstate the EB-5 Modernization Rule (and the higher minimum capital investment amount of $900,000) while the appellate court reconsiders the issues in the case. The purpose of a stay is to halt any resulting impacts of a judicial ruling until the appellate court has made a determination. We do feel that USCIS would not be able to prove a showing of imminent harm and ultimately an application for a stay may not be successful. 

We are currently awaiting further details about this startling turn of events. We will continuously update this post with more information on what this appeal means for EB-5 investors and stakeholders.  

What is the Behring Regional Center Lawsuit?  

In December 2020, the Behring Regional Center filed a motion for preliminary injunction against DHS in the US District Court for the Northern District of California to block the implementation of the new Regulations (the EB-5 Modernization Rule) that went into effect on November 21, 2019.  

The most notable change implemented by the EB-5 Modernization Rule was an increase in the minimum investment amount from $500,000 to $900,000 if the project is located in a Targeted Employment Area (TEA) and from $1 million to $1.8 million if the project is located outside of a TEA. A more detailed summary of the Behring Regional Center Lawsuit can be found on our website here.  

On June 22, 2021, Judge Jacqueline Scott Corley issued a ruling on the Behring Regional Center lawsuit, effectively reverting the EB-5 investment program to the pre-November 2019 regulations. The ruling found that Kevin McAleenan, former Homeland Security Secretary, was not lawfully serving in his position when he promulgated the EB-5 Final Rule. Read more about Judge Corley’s ruling in our previous blog post here

As of Judge Scott Corley’s ruling, the EB-5 minimum investment amount has been $500,000. In an attempt to provide clarity to the EB-5 industry, USCIS issued an alert shortly after the ruling stating that “While USCIS considers this decision, we will apply the EB-5 regulations that were in effect before the rule was finalized on Nov. 21, 2019.”1