Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick informs you of an exciting new court decision handed down by a federal judge from the Northern District of California. This new court decision immediately vacates the 2019 Modernization Rules passed under the Trump administration. As our readers will be aware, the 2019 Rules sought to raise the minimum investment amount for EB-5 investors from $500,000 to $900,000, narrowing the pool of applicants able to apply for a green card. The good news is that this new ruling reinstates the original rules governing the EB-5 visa program and reverts the minimum investment amount back to $500,000.
In addition to this exciting news, Jacob discusses further updates regarding immigration reform bills before Congress, pending litigation against the State Department, and more!
Want to know more? Keep on watching for all the details.
Overview
New Court Ruling Reinstates $500,000 Minimum Investment Amount for the EB-5 Immigrant Investor Program
We are happy to announce that thanks to a new landmark court decision, known as matter of Behring Regional Center LLC V. Chad Wolf et al. EB-5 Immigrant Investors will now have the opportunity to invest a minimum amount of $500,000 in an EB-5 project within a geographic area, considered a Targeted Employment Area. On June 22nd Federal Judge Corley announced in a court ruling that the 2019 Modernization Rule passed under the Trump administration would be vacated immediately, considering that the former acting DHS Secretary, Kevin McAleenan was not properly appointed to his position under the Federal Vacancies Reform Act when he implemented the 2019 Modernization Rule. As a result, Mc Aleenan did not have the authority to issue the rule, and it has now been declared invalid under the eyes of the law.
Although there is a possibility that the Department of Homeland Security could appeal the ruling by seeking a stay of the lower court’s decision, as well as an injunction to stop its enforcement, that remains to be seen.
Judge Corley’s recent decision means that the 2019 Modernization Rule is now defunct, and the minimum EB-5 investment amount has reverted to $500,000 as before. Therefore, at this moment in time (provided the EB-5 program is renewed by Congress) investors will be able to move forward with plans to invest at least $500,000 in an EB-5 project within a Targeted Employment Area (TEA) under the pre-November 2019 rules.
It is also important to note that there is a big caveat to this exciting news. The EB-5 Regional Center program that allows for investment in a Targeted Employment Area (TEA) is not a permanent program and must be extended on a temporary basis by U.S. Congress every few months for new applications to be accepted.
As it stands, the EB-5 Regional Center program will expire on June 30, 2021. Please note that EB-5 petitions filed as “direct” petitions are not affected by the Regional Center program expiration. “Direct” petitions are those that have no regional center affiliation because the petition relies on direct job creation of the new commercial enterprise.
EB-5 Lapse
If Congress does not pass a law to extend the EB-5 Regional Center program by June 30, 2021, the program will lapse. During any period when the program is lapsed, it is likely that USCIS will not accept any new Form I-924 Applications for new regional centers or regional center amendment applications. USCIS also will not accept any new Form I-526 petitions, or I-485 applications based on an underlying I-526 Petition affiliated with a regional center. It is likely that USCIS will hold pending I-924 applications, I-526 petitions, and I-485 applications in abeyance as they have done previously during any period of lapse. However, USCIS has not issued guidance recently on how they will handle petitions and applications should the program lapse on June 30, 2021.
Budget Plan Introduced by Senate Democrats Contemplates Path to Residency
In other news, Senate Democrats have introduced a new budget proposal that seeks to set aside $150 billion for the development of resources to support a pathway to residency for certain undocumented immigrants (including DACA holders and Temporary Protected Status (TPS) recipients).
In addition, a Senate hearing was held to negotiate the passage of H.R. 6 the American Dream and Promise Act of 2019, a comprehensive immigration reform bill. It was made clear that Senate Republicans would not support the passage of the bill unless it included provisions to strengthen border security and deter illegal immigration into the United States.
Hopefully we will have more news regarding these developments after the summertime.
In term of litigation, there are currently three major lawsuits that have been filed against the State Department for refusing to issue immigrant visas to relatives of U.S. Citizens and legal permanent residents. As you know, U.S. Embassies and Consular posts overseas continue to have very limited operational capacity and Consular posts have not released information on when they will return to pre-pandemic levels of operation.
A separate lawsuit has also been filed by Diversity Visa lottery winners from 2020 and 2021 challenging the current prioritization schedule released by the Department of State. The plaintiffs argue that they should receive a high level of prioritization just like immediate relatives of U.S. Citizens and legal permanent residents.
New USCIS Policy Update Extending Flexibility for RFE and NOID Responses
We continue to have good news for those who have or may receive a request for evidence, notice of intent to deny, or such related document from USCIS, between March 1, 2020 and September 30, 2021.
On June 24, 2021, USCIS announced that it will continue its flexibility policy and continue to grant applicants an additional 60 calendar days after the response deadline indicated on the notice or request, to submit a response to a request or notice, provided the request or notice was issued by USCIS between March 1, 2020 through September 30, 2021.
Accordingly, applicants who receive any of the below mentioned documents dated between March 1, 2020 and September 30, 2021 can take advantage of the additional 60 days to respond to the request or notice:
- Requests for Evidence;
- Continuations to Request Evidence (N-14);
- Notices of Intent to Deny;
- Notices of Intent to Revoke;
- Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings, if:
- The form was filed up to 60 calendar days from the issuance of a decision made by USCIS: and
For more information about this flexibility please click here.
Conclusion
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Have questions about the EB-5 Regional Center Program? Please contact us to schedule a consultation to discuss all the details regarding this new policy update and how you may qualify for a bona fide determination work permit and deferred action.
Contact us. If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.
Helpful Links
- Behring Regional Center LLC V. Chad Wolf et al Court Decision
- USCIS Newest RFE Flexibility Policy
- State Department Newsroom
- ImmigrationU Membership
- Success stories
- Youtube channel
- ImmigrationU
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