This lawsuit is the second one brought against the government. Plaintiff is questioning the validity of the changes adopted and implemented. The first lawsuit claimed that the new regulations would cause economic harm. In this second lawsuit, Plaintiff is arguing that neither the then-acting DHS Secretary Kevin McAleenan nor the then-Acting DHS Secretary Chad Wolf had the proper authority to propose and then issue the regulations. Greenburg Traurig is representing Plaintiff.
This case is of utmost importance for potential investors who have been on the sidelines waiting for the possibility of the required minimum investment amounts to be adjusted down. They are all asking what the chances of success of this lawsuit are in favor of the Plaintiff.
According to IIUSA, the court also asked the government to provide a brief on remedies should the motion for summary judgment be granted. This decision may include sending the decision on whether to abandon or reissue the regulations back to the current Secretary of Homeland Security, Alejandro Mayorkas. The court stated, if she were to vacate [the regulation] because she found it was invalid, it would go back to the secretary, who could re-impose it if he agrees with it.
We believe that, most likely, this lawsuit will be inconsequential. Either the court will dismiss it, or they will not issue an injunction, or will ask the current Secretary of Homeland Security, Alejandro Mayorkas, whether he would reissue the regulations as is. Besides, we have a proposed reauthorization bill by Senators Chuck Grassley and Patrick Leahy. If enacted, the bill would reauthorize the EB-5 regional center program, through September 30, 2026, with the current investment levels. There is widespread industry support for this bill. IIUSA is also championing it to become the law before June 30, 2021, the scheduled expiration of the program.
Mayorkas stated that if they were to seek his opinion, he would ratify the reform as is. Based on this development, we conclude that even if the court were to rule in favor of Behring Regional Center, the decision would be inconsequential.