USCIS Appeals EB5 Visa Case – Is the Investment Amount Going Up?

USCIS has appealed the decision of the District Court, which set aside the EB5 Modernization Rule.  Specifically, that court decision, made back in June of 2021, lowered the EB5 investment amount to $500,000.  In this article, we are going to discuss whether the investment amount will go back up in the near future. 

We are Ashoori Law, led by Michael Ashoori, a U.S. immigration lawyer based in Los Angeles, California.  At our law firm we work with clients from all over the world, and we regularly post articles and videos to make sure that you are up to date with the latest immigration news.  If, after reading this article, you have more questions, then we invite you to contact us at Ashoori Law.  Feel free to call us at +1-818-741-1117 or you may schedule a free consultation by clicking this link.

Background on the Behring Regional Center Case

Back in June of 2021, Behring Regional Center filed a lawsuit in federal court, which resulted in the court setting aside the EB5 Modernization Rule.  That was a law that increased the required minimum investment amount to qualify for an EB5 visa, from $500,000 to $900,000.  In its lawsuit, Behring Regional Center made multiple challenges against the EB5 Modernization Rule.  Among those challenges was that the Secretary of Homeland Security was not properly serving in his role when he promulgated the EB5 Modernization Rule.

The judge overseeing the case sided with the plaintiffs, and ultimately set aside the EB5 Modernization Rule.  Ultimately, that meant that the minimum investment amount for EB5 was lowered from $900,000 back down to $500,000.

That was wonderful news for thousands of EB5 investors.  When this news broke, many of us were wondering, how would USCIS respond?  Would USCIS accept these changes?  Would they attempt to appeal the decision?  Or what types of steps would USCIS take?

We at Ashoori Law were surprised and pleased to see that USCIS announced shortly after the decision that it would begin accepting EB5 applications at the $500,000 investment amount, while it determined what next steps it would take.  Months went by, with relatively no action from USCIS regarding this decision.  Recently, however, we learned that USCIS has appealed the federal court’s decision. 

What Does USCIS’s Appeal Mean?

As of now, the fate of the EB5 Modernization Rule is unclear.  Even though the current minimum investment amount remains at $500,000, that might not be the case for long.  The clock is ticking. 

We surmise that a number of things could happen.  First, USCIS might ask for a “stay” of the federal court’s recent decision, which means that the minimum investment amount might temporarily go back up to $900,000 while USCIS’s appeal makes its way through the courts. USCIS has not yet taken this step.

Second, the Secretary of Homeland Security can review the procedural requirements on how to properly enforce the EB5 Modernization Rule, bypassing the federal court’s recent decision.

Third, Congress could step in and make further changes to the EB5 investment visa rules by passing comprehensive EB5 legislation. 

 Finally, USCIS might simply wait for its appeal to be decided.