On August 23, 2021, the U.S. Department of Homeland Security officially filed a notice of appeal to the Ninth Circuit Court of Appeals regarding the ruling of the Northern District of California federal court in the lawsuit involving the Behring Regional Center and the U.S. Department of Homeland Security. Previously, on June 22, the Northern District of California federal court ruled in the lawsuit involving the Behring Regional Center and the U.S. Department of Homeland Security, declaring the EB-5 new regulations implemented by the Immigration Bureau on November 21, 2019, invalid.
Recently, the news that "the EB-5 investment amount has been reinstated to $500,000" has been widely circulated in the industry. Is this really the case? How should we correctly interpret the impact of the Department of Homeland Security's appeal on the EB-5 investment amount?
1. In the short term, the court will not be able to make a final ruling on the appeal
The appeal process requires a lengthy procedure. Generally, both parties to the appeal have 30-40 days to submit written appeal evidence and written responses to the court, followed by several weeks for further cross-examination. It will take months to complete the submission of written evidence and responses before entering the hearing stage. Therefore, the court will not be able to make a final ruling on the appeal in the short term.
2. Before a ruling is made on the appeal, the investment amount of $500,000 (non-TEA: $1 million) remains the applicable regulation
At the same time as filing the appeal, the Department of Homeland Security did not submit a motion to stay the enforcement of the district court's ruling. According to the principle that "pending appeals do not change existing laws," the ruling made by the Northern District of California federal court remains valid until the judge in the appeal case makes a ruling. This means that the EB-5 minimum investment amount will continue to be maintained at $500,000 (TEA)/$1 million (non-TEA), which is the level prior to the implementation of the Immigration Bureau's price increase regulations in November 2019.
3. The impact of the appeal on the EB-5 Regional Center Program
The appeal by the U.S. Department of Homeland Security has no immediate impact on investments in the Regional Center Program. The EB-5 Regional Center Program entered a suspension status after its expiration on June 30. If the EB-5 Regional Center Program is reauthorized without changing the investment amount, then before a ruling is made on the appeal (regardless of the outcome), the EB-5 Regional Center Program will have a brief investment window of $500,000 (TEA)/$1 million (non-TEA).
Will the EB-5 Regional Center Act successfully hitch a ride on the U.S. federal government budget proposal at the end of September without changing the investment amount? Additionally, will the Immigration Bureau issue new administrative regulations? These factors will influence the future direction of the EB-5 Regional Center Program. We will continue to monitor the situation and share updates as soon as they are available. For more details, please call our service hotline: Mainland China: 400-138-2929 Hong Kong: (852) 2802 8798.
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*Investment involves risks; the above information is for reference only.*