In a win for the real estate industry, the U.S. District Court of the Northern District of California ruled in favor of the Behring Co., operator of Behring Regional Center, in its request to vacate the EB-5 Modernization Rule implemented by the Department of Homeland Security (DHS) in 2019.

In the ruling, U.S. Magistrate Judge Jacqueline Scott Corley supported Behring's argument that the DHS officials responsible for enacting the rule, which updated various regulations governing the EB-5 Immigrant Investor Visa Program, had no legal authority to make the changes because they were unlawfully appointed in violation of the Federal Vacancies Reform Act of 1998. The EB-5 program was created by the Immigration Act of 1990 as a method for providing qualified immigrant investors the opportunity to obtain a permanent green card.

Behring says the Modernization Rule made other problematic changes to the program's Targeted Employment Area (TEA) designation process, including removing the states' authority to determine TEA eligibility without a viable replacement. That resulted in processing times that could take years to complete.