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On June 22, the United States District Court for Northern California issued an order in an ongoing lawsuit which terminated the Trump Administration’s huge increases in required EB-5 investment totals, instead reverting to the prior regulatory frame work of $500,000 and $1,000,000. The order in Behring Regional Center LLC v. Wolf et. al., (3:20-cv-09263-JSC) vacated the 2019 EB-5 Immigrant Investor Program Modernization Final Rule. The basis of the lawsuit was that the regulations were not lawfully promulgated as the acting DHS secretary was not properly serving in his position at that time and could not ratify the regulations. An appeal is likely given the large amount of regulations facing similar issues.
It seems one can never have it both ways. With the huge developments in lower investment totals, some other EB-5 news has slowly crept upon us. The EB-5 regional center program must be authorized by Congress or it ends (“sunsets”) every two years on June 30. As of right now Congress has not acted on the EB-5 program. A short term authorization is highly likely, with long term authorization likely to be swept into larger immigration reform efforts. The sunset provisions of the EB-5 visa only apply to the regional center part of the program, the underlying law regarding direct investment will remain. The sunset would drastically affect EB-5 petitions filed after June 30. Going by the 2018 lapse, if there is no authorization, new applications would be suspended and pending cases would be held in abeyance by the USCIS. We will be tracking the situation closely.
The USCIS has announced the extension of the flexibilities it announced for responding to agency requests until September 30, 2021. The USCIS is allowing an expanded time frame for responses to various agency requests including: Requests for Evidence; Continuations to Request Evidence; Notices of Intent to Deny; Notices of Intent to Revoke; Notices of Intent to Rescind as well as Motions to Reopen N400 and also the filing of appeals under I-290B. The USCIS will consider any response to the listed requests as timely if received within 60 days from the stated response time in the request.
Tully Rinckey is able to assist people and organizations world-wide with domestic and international immigration matters. Attorney Michael Freestone is well versed in representing large corporations and is able to navigate complex immigration issues and analyze the facts and recommend the best course of action.