DHS Files Notice of Appeal in EB-5 Behring Case

By Matt Gordon ©2021

On August 23, 2021, the Department of Justice filed a notice of appeal in the Behring Case. They have not asked for a stay of the district court decision vacating the EB-5 rule increasing the minimum investment from $500K to $900K.  This suggest a weak case from the outset.  DHS thought they had a strong case, they would have asked for the stay.  They did not as they do not feel confident in victory on the merits.

In the end, the ninth circuit court of appeals will decide on the merits.  Success seems unlikely as the arguments in the district court case were weak, and similar arguments have been rejected by other courts.  Even if the court does ultimately decide that the district court was wrong and restores the rule, all I-526 petitions that have finished adjudication before then will not be affected.  USCIS could try to take the position that previously approved green cards are invalid, but again, it would be a very weak legal position.   The current rule is the pre-November 2019 rule, by USCIS’s own admission.  Once an I-526 is approved and the green card is issued it should be safe.

The appeals process typically runs one to two years.  That creates an interesting possibility for EB-5 investors.  Currently, without a Regional Center program, there are many who believe, including the Editor of this publication, that the remaining direct-based petitions will be reviewed extremely quickly.  Quite possibly in less than a year.  In addition, investors in projects that qualify for expedited treatment may also be able to beat the court’s gavel and receive their coveted green card irrespective of the outcome of the Behring case.  Accordingly, people interested in taking advantage of the $500K investment minimum should do so with all due speed.  Every day may matter.