On June 22, 2021, Judge Jacqueline Scott Corley of the U.S. District Court of the Northern District of California (the “Court”) issued an order granting summary judgment in Plaintiff’s favor in the matter of Behring Regional Center LLC V. Chad Wolf, et al.
In summary, Plaintiff sought both (1) a declaratory judgment that the Final EB-5 Rule (changing the minimum investment amount from $500K to $900K among other changes) which went into effect on November 21, 2019, is without force and effect, as well as (2) an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the APA’s rule-making process.
The Court granted relief on the first item and issued remand with vacatur – essentially invalidating the Final EB-5 Rule. However, the Court declined to grant Plaintiff an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the Administrative Procedure Act’s (APA) rulemaking process. Therefore, the Court has set aside the Final EB-5 Rule and has remanded the matter back to the agency (Department of Homeland Security).
Although the Court did invalidate the Final EB-5 Rule, it is highly likely that Secretary Mayorkas will take action to reinstate the Final EB-5 Rule as the Court declined to grant Plaintiff an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the APA’s rule-making process.
To view the full order granting summary judgment, please click here.
“We are very pleased by the Judge’s ruling,” said Sam Silverman, managing partner of EB5AN. “Many qualified and deserving foreign investors were excluded from the EB-5 program when DHS improperly increased the minimum investment amount. Our team is excited about this news and proud to offer Saltaire St. Petersburg Phase II (Loan) for immediate subscription at a reduced investment of $500,000. However, serious EB-5 investors need to act quickly because the window of opportunity is likely to be short, potentially closing on June 30, 2021, the current sunset date of the EB-5 regional center program.”
An administrative action by DHS Secretary Alejandro Mayorkas to reinstate the rule, or legislative action by the U.S. Congress, could return the minimum investment amount to $900,000 within days. Therefore, an unprecedented short period of time exists for foreign nationals seeking U.S. residency to invest at the reduced $500,000 investment threshold.
Saltaire St. Petersburg Phase II (Loan) is a low-risk EB-5 visa investment in a high-rise luxury condominium in downtown St. Petersburg, Florida. The project is being developed by KOLTER, one of the largest private real estate developers in the United States. Construction is underway and all project financing is in place, and over 75% of the condominium units are already sold with non-refundable cash deposits. An EB-5 visa investment in Saltaire St. Petersburg Phase II (Loan) is secured by a parent-entity repayment guaranty and all investors receive an I-526 early release guaranty.
Investors seeking additional information or needing to speak with an experienced EB-5 immigration attorney about immediately submitting an I-526 petition should send a message to firstname.lastname@example.org.