On June 22, 2021, Judge Jacqueline Scott Corley of the U.S. District Court of the Northern District of California (the “Court”) issued an order granting summary judgment in Plaintiff’s favor in the matter of Behring Regional Center LLC V. Chad Wolf, et al.
In summary, Plaintiff sought both (1) a declaratory judgment that the Final EB-5 Rule (changing the minimum investment amount from $500,000.00 to $900,000.00 among other changes) which went into effect on November 21, 2019, is without force and effect, as well as (2) an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the APA’s rule-making process.
The Court granted relief on the first item and issued remand with vacatur – essentially invalidating the Final EB-5 Rule. However, the Court declined to grant Plaintiff an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the Administrative Procedure Act’s (APA) rulemaking process. Therefore, the Court has set aside the Final EB-5 Rule and has remanded the matter back to the agency (Department of Homeland Security).
Although the Court did invalidate the Final EB-5 Rule, it is highly likely that Secretary Mayorkas will take action to reinstate the Final EB-5 Rule as the Court declined to grant Plaintiff an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the APA’s rule-making process.
