The U.S. District Court for the Northern District of California granted summary judgment in favor of the plaintiff, holding that DHS violated the Administrative Procedure Act (APA) when it promulgated the July 24, 2019, final rule amending its regulations for the EB-5 program, including providing priority date retention to certain EB-5 investors and increasing the required minimum investment amounts. The court concluded that Former Acting DHS Secretary McAleenan was not lawfully serving as DHS Secretary when he promulgated the final rule, and thus under the Federal Vacancies Reform Act of 1998 (FVRA), the final rule is void. Further, the court explained that neither the current DHS Secretary Mayorkas’s after-the-fact ratification nor the de-facto officer doctrine saved the rule. Pursuant to this decision, the EB-5 program will return to a minimum investment amount of $500,000. (Behring Regional Center, LLC v. Wolf, et al., 6/22/21)
