On January 5, 2022, the Department of Homeland Security (DHS) filed an unopposed motion requesting that its August 2021 appeal to a district court ruling in the case of Behring Regional Center LLC v. Chad Wolf et al. be dismissed. In this ruling, it was concluded that Kevin McAleenan, who was the Former Acting Homeland Security Secretary, was not appointed using the correct procedure and thus was exceeding his statutory authority when he issued the EB-5 Immigrant Investor Program Modernization Rule in July of 2019. This rule made significant changes to the EB-5 investment immigration program.

Due to the unopposed motion to dismiss, the following aspects of the EB-5 program will continue to apply.

Conditions For Permanent Residence: Derivative family members will no longer be required to file petitions of their own in order to remove conditions that apply to their permanent residence even when they are not part of a petition that was filed to remove conditions by the principal investor.

Minimum Investment Requirements: The EB-5 program has a minimum investment amount of $1 million and for a targeted employment area (TEA) $500,000. This reduction in the minimum amount someone must invest for the EB-5 direct investment option will make it a realistic option for families that want to move to the United States for personal or business reasons.

TEA Designations: The U.S. Citizenship and Immigration Services (USCIS) will continue to allow state and local governments to designate a particular area as being an area of high unemployment. Priority Date Retention No Longer Permitted: According to the Modernization Rule, specific EB-5 petitioners were permitted to keep the priority date of an EB-5 petition that was already approved when they went to file a new petition. However, now the retention of a priority date is not authorized.

However, even with this dismissal, the EB-5 Immigrant Investor Regional Center Program has not been active since June 2021. The USCIS is now re-evaluating its decision to delay or not consider any pending applications or petitions that were received on or after the date of July 1, 2021, for the following forms.

Form I-526 (Immigrant Petition by Alien Investor): when an investment is connected with an approved regional center Form I-924 (Application for Regional Center Designation Under the Immigrant Investor Program): if an application is filed in order to change a regional center’s ownership, name, administration, or organizational structure Form I-485 (Application to Register Permanent Residence or Adjust Status) and any associated forms, including I-765 (Application for Employment Authorization) and I-131 (Application for Travel Document), based on an approved Regional Center Form I-526.

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