Trump-era US EB5 investor visa rule scrapped by judge

A US federal judge has quashed a set of Trump-era rules that required immigrants, seeking green cards via a federal investor visa program, to invest more to be eligible. The rules, issued by the Department of Homeland Security (DHS), increased the minimum investment amount to qualify for EB5 visas from $500,000 to $900,000.

Foreign investors can get US green cards by investing in American real estate projects and businesses that create jobs. Changes to the EB5 visa program did have the backing of the Biden administration, despite opposing many of Trump’s other US immigration policies.

The rules were first implemented in the final months of the Obama administration, while the Biden administration recently endorsed the rules in court. However, US Magistrate Judge Jacqueline Scott Corley of the Northern District of California, recently ruled that the Trump administration improperly issued the rules.

Homeland Security Secretary

Judge Corley said her ruling was based on the acting Homeland Security Secretary at the time, Kevin McAleenan, being improperly appointed to his role. Her ruling echoes those of several others judges who blocked other Trump administration immigration policies, including an attempt in 2020 to rollback the Deferred Action for Childhood Arrivals program.

Judge Corley’s ruling comes as a key piece of the EB5 US visa program, called regional centers, looks set to expire at the end of June. Lawmakers have currently been unable to agree on a compromise to reauthorize the program.

Meanwhile, Senators Chuck Grassley and Patrick Leahy have presented proposals that aim to tighten the EB5 visa program to prevent fraud and direct investment toward rural areas of the United States. 

However, other lawmakers, including Senate Majority Leader, Chuck Schumer, and Lindsey Graham are pushing to relax rules to make the program a more ‘lucrative investment tool’, according to a report published by The Washington Post.

Investment declines

Following the introduction of new rules under Trump, investment in EB5 projects quickly declined. Developers complained that the new investment threshold of $900,000 made attracting investors more difficult.

With the rules scrapped, it’s likely that developers and the senators championing the developers’ cause will increase their efforts to revive the EB5 visa program in the coming months.

Colin Behring, the chief executive of real-estate investment firm Behring Companies and the plaintiff in the lawsuit, said: “This sends a big signal to the industry that EB5 will be alive and well.”

Legal issues

Meanwhile, Judge Corley’s recent ruling will raise additional legal issues for the Biden administration. Current Homeland Security Secretary, Alejandro Mayorkas, had attempted to reissue the EB5 visa rules in his own name in an effort to navigate around the issue of Mr McAleenan being improperly appointed.

However, Jude Corley didn’t find Mayorkas’ case any more persuasive and referred to a clause in law governing federal vacancies that says rules that are illegally issued can’t simply be endorsed by a properly serving official at a later date.

Judge Corley said: “The government’s argument is foreclosed by the [law’s] plain and unambiguous language.”

Under the Biden administration, the US Department of Justice has made similar moves to endorse several other US immigration policies introduced by Trump, including those governing whether asylum seekers can qualify for US work visas while they await the outcome of their asylum application.

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