Behring Regional Center vs. Chad Wolf lawsuit
We are receiving a lot of requests from our clients to provide clarity on the pending Behring Regional Center vs. Chad Wolf lawsuit. Could you please tell us what Plaintiff is arguing about and what the government’s response is? Finally, please tell us how that would affect the EB-5 business in the future. Thank you.
This is the second lawsuit 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 claims that neither the then-acting DHS Secretary Kevin McAleenan nor the then-Acting DHS Secretary Chad Wolf had the property 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 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 I were to vacate [the regulation] because I find it was invalid, it goes 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, and 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 Sept. 30, 2026, with the current investment levels. There is widespread industry support for this bill. IIUSA is also championing efforts for its becoming the law before June 30, 2021, the scheduled expiration of the program.
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