DHS Drops Behring Appeal

One of 2021’s biggest questions was resolved with the Department of Homeland Security (DHS)’s motion to dismiss its appeal in the Behring litigation.

DHS filed the motion on January 5, 2022, effectively withdrawing its appeal of the June 2021 court order voiding the EB-5 Modernization Regulations. This removes the possibility that the higher court (the U.S. Court of Appeals for the Ninth Circuit) may bring back the Modernization Regulations with its US$900,000/US$1.8 million investment thresholds and new TEA requirements.

Here is the state of play, then, in the EB-5 landscape:

• Investment threshold is US$500,000 for TEAs/US$1 million for non-TEAs
• TEAs will be proven generally by state-issued TEA letters for high unemployment areas rather than private determinations
• Due to continuing regional center program lapse, only the permanent EB-5 direct program exists currently.

This landscape will endure for the near future. What can change it? Firstly, legislation. We’ll be looking closely for any sign of retroactive application, which would threaten to upset the cases filed before any new law’s effective date.

Secondly, new regulations would change the current landscape. However, given that the Modernization Regulations took over 2 years to be made effective, it is unlikely that new proposed rules will upset the new status quo abruptly.