On June 22, 2021, Magistrate Judge Jaqueline Scott Corley from the U.S. District Court for the Northern District of California ruled that the EB-5 Modernization Final Rule was not lawfully promulgated because the former-acting Department of Homeland Security Secretary Kevin McAleenan was not properly serving in his position. As a result, the November 21, 2019 regulations have been vacated thereby reinstating the EB-5 minimum investment amount for TEA investments, temporarily, to $500,000.
It is unclear how long the lower investment amounts will last. It is possible that Department of Homeland Security will appeal the decision and it is likely Secretary Mayorkas will seek to finalize the regulations. Until then, the earlier investment amounts of $500,000 for TEA investments and $1 million for non-TEA investments remain in place. Potential EB-5 investors should review the benefits and risks associated with filing an I-526 after this order. There are a number of considerations worth discussing with immigration counsel.
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