U.S. Magistrate Judge Jaqueline Scott Corley seemed to indicate in yesterday’s hearing in the
Behring Regional Center LLC v. Wolf et al. that the Department of Homeland Security’s
regulation changing TEA and investment amounts in the EB-5 program were not properly
promulgated by Kevin McAleenan. The Federal Vacancies Reform Act simply did not permit
that action to be taken and that any subsequent attempt ratify that invalid action by the current
Administration would not be valid. EB-5IC is very pleased with the initial response from Judge
Corley. Laura Reiff opined, “This could lead to holistic EB-5 reform.” She continued, “The EB-
5 Regional Center Program is basically dead. We need to have meaningful reform that protects
stakeholders and doesn’t inadvertently hurt those it was intended to protect. This is why the suit
was brought.”
The EB-5 Regional Center program (the “RC Program”) is set to expire on June 30, 2021. While
there is cause for concern, there is a growing consensus that if meaningful reform cannot be
achieved in a short period of time, the RC Program should be re-coupled with three other
immigration programs that it was coterminous with prior to 2021. This would allow time to
achieve the holistic reform that Laura Reiff referred to. Jeff Campion mentioned, “We believe
integrity measures can be implemented that will improve the program. We also believe that visa
backlog issues need to be addressed and can be.” He added, “In the time of a pandemic, we have
a solution to help spur on job creation at no cost to US taxpayers– it’s EB-5. To do that we need
visa relief.”
Judge Corley should be issuing a written opinion in the next two weeks which will be pivotal in
the EB-5 industry. If summary judgment is granted to the plaintiff, the old minimum investment
amount of $500,000 for TEAs would be in effect. “This could what we need to breathe life into
the industry and craft meaningful legislation to have a robust EB-5 industry,” stated Laura Reiff.
