Judge challenges Trump-era EB-5 modernization rule change
Updated: Sep 9
From the EB-5 Investors site
The Biden administration’s defense of a Trump-era rule change appears to have been shot down by U.S. Magistrate Judge Jaqueline Scott Corley. The rule change raised the EB-5 visa program’s minimum investment amounts from $1 million to $1.8 million and increased the minimum amount in target employment areas from $500,000 to $900,000. Judge Corley stated she did not believe secretary of Homeland Security Alejandro Mayorkas, appointed under President Joe Biden’s administration, can approve the rule change.
In a live video hearing on May 13, Judge Corley repeatedly challenged U.S. Department of Justice attorneys to justify why she should not grant summary judgement to Behring Regional Center, which would end the EB-5 rule change. The Behring Regional Center, a USCIS accredited EB-5 regional center that sponsors projects using funds from EB-5 investors, sued the government in December 2020 in response to the Trump-era EB-5 rule change. Behring claims the Department of Homeland Security “violated federal law by issuing an arbitrary and capricious rule, failed to examine a regulatory flexibility analysis, and exceeded statutory authority,” according to court documents.
Judge Corley called the unlawful appointment of former acting DHS secretary Kevin McAleenan under the Trump administration as “pretty well-established.” The proposed EB-5 Modernization Rule was first issued in July 2019 under McAleenan, followed by the final rule being issued on Nov. 21, 2019 under acting DHS secretary Chad Wolf, who took over McAleenan’s position after his resignation.
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