EB-5 Final Rule Challenged in U.S. Federal District Court
On Nov. 26, 2019, a complaint for Injunctive Relief and a Temporary Restraining Order was filed by Florida EB-5 Investments, LLC against the Department of Homeland Security (DHS) challenging a Nov. 21, 2019, DHS-issued final rule amending its regulations for the EB-5 program to purportedly modernize the rules (EB–5 Immigrant Investor Program Modernization, 84 Fed. Reg. 35750 (July 24, 2019). Case 1:19-cv-03573 FLORIDA EB5 INVESTMENTS, LLC v. WOLF et al.
The Rule proposed many changes to the EB-5 Program, including: (i) significant increases in the requisite investment levels; and (ii) a new targeted employment area (TEA) designation process that eliminates the input of the individual states in designating such areas in which investments are made. The complaint alleges statutory and constitutional grounds to challenge the rule, claiming that it violates the Administrative Procedures Act (APA), exceeds DHS’s authority, and violates the Tenth Amendment, among others. The complaint further alleges that the Rule’s changes impact the U.S. economy and were proposed without adequate studies or analysis.