A lawsuit involving the Department of Homeland Security (DHS) that sought to overturn an increase in the EB-5 Immigrant Investor Program’s minimum investment amount had attracted the attention of many EB-5 industry stakeholders.
Behring Regional Center had sued the DHS, arguing that the previous acting DHS secretary did not have the authority to increase the minimum investment amount under the Modernization Rule. The Modernization Rule, which became effective in November 2019, increased the minimum investment amount for a TEA-qualified project from $500,000 to $900,000.
However, on March 31, 2021, those suggestions were put to rest by Secretary of Homeland Security Alejandro Mayorkas. Mayorkas, “out of an abundance of caution,” officially affirmed and ratified the increase. This announcement effectively killed any hope that the minimum investment amount for TEA-qualified projects might return to $500,000.
Who is Alejandro Mayorkas?
President Biden nominated Mayorkas as DHS Secretary in early 2021. Many EB-5 industry representatives saw Mayorkas’s return to the DHS under President Biden as promising, given his previous positive history with the EB-5 investment program.
The Obama Administration named Mayorkas secretary of U.S. Citizenship and Immigration Services (USCIS). Mayorkas oversaw a period of growth in the EB-5 investment program’s popularity and led the EB-5 program during FY 2014, when for the first time, the EB-5 investment program issued all the green cards that it had been allotted.
Behring Regional Center v. Wolf et al.
Behring Regional Center claimed that the Trump Administration’s allegedly illegal appointments of former acting DHS secretaries Kevin McAleenan and Chad Wolf rendered their rule changes, including the increase to the minimum investment amount, illegitimate.
Several EB-5 industry representatives had expressed hope that the minimum investment amount for a TEA-qualified project would return to the previous amount of $500,000, potentially attracting more investors by making the program more accessible. However, Alejandro Mayorkas put those hopes to rest by formally ratifying the earlier order presented by the previous acting DHS secretaries.
In this ratification, Mayorkas cited the case Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives as precedent. “We have repeatedly held that a properly appointed official’s ratification of an allegedly improper official’s prior action … resolves the claims on the merits by remedy[ing] the defect (if any) from the initial appointment,” Mayorkas quoted.
Using this precedent, Mayorkas affirmed the minimum investment amount increase, confirming that the minimum EB-5 investment amount will remain at $900,000 ($1.8 million for non-TEA projects).