On Tuesday, June 22, 2021, in a ruling in Behring Regional Center, LLC v. Chad Wolf (3:20-cv-09263-JSC) the U.S. Northern District Court of California vacated the November 2019 EB-5 Modernization Regulations (the “Regulations”).
The court ruled that former acting DHS Secretary Kevin McAleenan was not properly serving in his position under the Federal Vacancies Reform Act when he promulgated the EB-5 Modernization Final Rule and the EB-5 regulations that took effect in November 2019 must be set aside. The court also ruled that the ratification of the EB-5 rule by current DHS Secretary Mayorkas in March of this year did not cure the defect arising from McAleenan’s improper appointment.
While the order set aside DHS Secretary Mayorkas’ ratification or adoption of the regulation the court declined to enjoin or prohibit the Secretary from reinstating the rule. Accordingly, the Regulations may be reinstated, and/or an appeal by DHS is possible.
In the interim, IIUSA will continue its work to secure a long-term reauthorization for the EB-5 Regional Center Program via the EB-5 Reform and Integrity Act which is currently hotlined in the Senate.
We will ensure the EB-5 industry is updated on any and all important developments as they happen. Should you have any questions please email advocacy@iiusa.org.
