USCIS Files Appeal Against Modernization Rule Court Ruling

On August 23, 2021, United States Citizenship and Immigration Services (USCIS) filed an appeal of the June 22, 2021, court ruling that invalidated the controversial EB-5 Modernization Rule and thus reverted the EB-5 program to its pre-November 2019 status. The most notable changes made by the Modernization Rule were the higher minimum EB-5 investment amounts of $900,000 for targeted employment area (TEA) projects and $1,800,000 for non-TEA projects. Judge Jacqueline Scott Corley had set August 23, 2021, as the deadline to file an appeal against the court ruling.

A federal appellate court will hear the Modernization Rule case. If USCIS’s appeal is successful, the Modernization Rule will be revalidated, and the minimum EB-5 investment amounts will be raised once more.

What This Means for the EB-5 Investment Industry

The Modernization Rule was never well-received by the EB-5 industry in general—the higher minimum investment amounts made it more difficult for foreign nationals to participate in the EB-5 program. Therefore, project developers and potential EB-5 investors alike celebrated the Modernization Rule’s invalidation.

Moreover, USCIS’s appeal comes at a very turbulent time for the EB-5 investment program—just a few days after the Modernization Rule’s repeal, the regional center program was suspended because Congress failed to pass the necessary legislation. Since the vast majority of EB-5 investments are made through regional centers, the regional center program’s expiration had a negative impact on numerous project developers and investors. As of August 30, 2021, the regional center program has yet to be revalidated, and USCIS is only accepting visa petitions that are not associated with a regional center.

Since the Modernization Rule’s repeal, many EB-5 investors have filed Form I-526 at the lower investment amount of $500,000 for TEA projects. These investors may wonder if USCIS will continue to process their petitions if the Modernization Rule is revalidated. Interestingly, USCIS did not file a motion to stay the Modernization Rule’s repeal and is accepting I-526 petitions filed at $500,000. This indicates that the agency will likely continue to process all visa petitions filed at the lower investment amounts during the Modernization Rule’s lapse.

Regardless of whether USCIS wins the appeal, the Modernization Rule will most likely be revalidated in the future. Since the opportunity to invest at only $500,000 may be drawing to a close, potential investors should work with an immigration attorney and identify suitable EB5 investment opportunities as soon as possible. Interested foreign nationals can also schedule a meeting with EB5AN, which offers low-risk and trustworthy EB-5 projects.