DHS Secretary Alejandro Mayorkas, who gets plenty of criticism on these pages, did the right thing the other day when he confirmed the increase in the minimum EB-5 (immigrant investor program) investment from $500,000 to $900,000.
The EB-5 program grants a family-sized set of green cards to aliens who make the minimum EB-5 investments in government-identified, but not guaranteed, economic deals, routinely in big city real estate. Toward the end of the Trump administration, the government changed the 25-year-old rules to demand the higher investments, something that the Obama administration had previously advocated.
As we also reported earlier, a California EB-5 middleman agency, the Behring Regional Center, sued the government in a California federal court, saying that the mandated increase in the investments was null and void because the acting DHS Secretary at the time, Kevin McAleenan, was not properly appointed when he issued the ruling.
Now EB-5 Investors Magazine, an industry news site, has reported:
U.S. Magistrate Judge Jacqueline Scott Corley, who is overseeing the lawsuit, indicated she might reverse the changes to the EB-5 immigrant investor program based on those alleged illegitimate appointments of DHS officials. However, in recent developments, the government notified the court that Secretary of Homeland Security Mayorkas has ratified the 2019 regulations, which nullifies any alleged unlawfulness of the regulations related to acting DHS secretary McAleenan’s appointment.
The article quoted a prominent EB-5 lawyer who said that the Mayorkas decision had all but ended the Behring suit.
The EB-5 program was established in the 1990s to bring foreign money to depressed parts of the nation, including rural areas, but was quickly diverted to add to the profits of big city developers; the few times it wandered into rural areas, such as in South Dakota and Vermont, it often created scandals.
Interestingly, Law360, which routinely covers EB-5 matters, has not picked up on this story.