What Pending EB-5 Lawsuits Mean for Investors

Several lawsuits now moving through U.S. federal courts could change how EB-5 investors apply for Green Cards, how long their capital must stay invested, how many visas are available, and what they pay in government fees. As of November 2026, most of these cases remain unresolved, and some may not be decided until well into 2027.

This post groups the key cases by the practical question each one could answer and closes with steps investors can take now. It is general information, not legal advice, so investors should review their own situation with a qualified immigration attorney.

Why Litigation Matters for EB-5 Investors Right Now

The EB-5 Reform and Integrity Act of 2022 (RIA) rewrote much of the EB-5 program. It set the minimum investment at $1,050,000, or $800,000 for projects in a targeted employment area (TEA) or for infrastructure projects, and it authorized the regional center program through September 30, 2027. It also reserved 20% of EB-5 visas each year for rural projects, 10% for projects in high-unemployment areas (HUAs), and 2% for infrastructure projects.

Congress left many details to the agencies, and for more than four years U.S. Citizenship and Immigration Services (USCIS) filled those gaps mostly with policy guidance. Several of the lawsuits below argue that this guidance went too far or skipped required procedures. Whichever side prevails, the outcomes will shape how the program operates.

Filing From Inside the United States: The Adjustment of Status Challenge

In October 2026, unions, faculty groups, and individual Green Card applicants filed AAUP v. Mullin in federal court in Boston, challenging two USCIS policies issued earlier that year.

The first is a May 21 policy memorandum that describes adjustment of status as extraordinary discretionary relief and directs officers to treat the choice to adjust inside the United States, instead of processing through a consulate abroad, as a negative factor. The memo does not change who is legally eligible to adjust. It changes how officers exercise that discretion. The second is an August 5 policy alert that allows officers to deny adjustment applications without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID).

This matters because many EB-5 investors already in the United States file Form I-526E (the regional center investor petition) together with Form I-485 (the application to adjust status), a process known as concurrent filing. A ruling could decide whether those I-485 applications can be denied without a chance to respond, and whether adjusting inside the country can count against an investor.

A related rule adds pressure on the same group. On October 14, 2026, the Department of Homeland Security (DHS) finalized its October 2025 interim rule ending the automatic extension of up to 540 days for many work permit renewals, including those filed by adjustment applicants. The change applies to renewals filed on or after October 30, 2025. A court challenge is pending, but relief so far has been limited to the individual plaintiffs, so concurrent filers should plan for a possible gap in work authorization if a renewal is slow.

How Long Capital Must Stay Invested: The Sustainment Period Case

Before the RIA, capital had to stay at risk through the entire period of conditional residence. In October 2023, USCIS issued guidance setting a two-year sustainment period for investors who filed after the RIA. In March 2024, Invest in the USA (IIUSA), the regional center trade association, sued, arguing that USCIS adopted the two-year standard without notice-and-comment rulemaking.

In July 2025, the federal court in Washington, D.C., declined to rule on the merits, leaving the guidance in place and pausing the case while USCIS worked on formal regulations. On July 2, 2026, DHS published a proposed rule that would write the two-year period into regulation. The public comment period closed on August 31, 2026.

Under the proposed rule, once an investor completes the two-year period and the required jobs are created, capital could be returned even if the investor is still awaiting a decision on Form I-829, the petition to remove conditions on permanent residence. The proposal is not final, and DHS may still revise it.

In our view, a fixed two-year period helps investors from countries with long visa waits, because their capital can be returned on a predictable schedule instead of staying tied up until their conditional residence ends. Investors should still check what an offering does with capital after the two years, including any plans to redeploy funds.

Visa Supply and the Reserved Categories

Under the RIA, reserved visas that go unused carry over to the next year’s reserved pool, and if they remain unused, they move into the unreserved EB-5 category. In August 2024, IIUSA sued the State Department in IIUSA v. Blinken to stop that transfer, arguing it would lengthen waits for investors.

The district court in Wisconsin denied IIUSA’s request for a preliminary injunction, reasoning that the carryover happens automatically under the statute rather than through any action by the State Department. The case is now on appeal before the U.S. Court of Appeals for the Seventh Circuit.

Because the trial court read the statute as clear, investors should not count on this appeal changing visa supply. The more reliable path to shorter waits is the structure Congress already built. Rural projects receive both a 20% visa set-aside and priority processing at USCIS, which is why many investors from high-demand countries such as China and India focus on rural TEA projects.

Government Fees: Refund Claims and a New Fee Schedule

In November 2025, a federal court in Colorado ruled that USCIS could not raise EB-5 fees through its general 2024 fee rule because the RIA required a separate EB-5 fee study first. USCIS then reverted to the fees that were in effect before April 1, 2024.

The court did not order refunds. A 2026 class action by the American Immigrant Investor Alliance (AIIA) seeks refunds for investors who paid the invalidated fees.

The larger change for new investors is a separate EB-5 fee rule published on September 30, 2026, which takes effect on November 30, 2026, and raises EB-5 form fees by about 70% on a weighted-average basis. Any filing postmarked on or after that date must include the new fees. The rule also raises the EB-5 Integrity Fund fee paid with each Form I-526E from $1,000 to $1,100. Investors preparing petitions close to that date should confirm the correct amounts with counsel before filing.

Protection for Good-Faith Investors When a Regional Center Fails

The RIA includes protections for investors who acted in good faith when their regional center or project is later terminated or debarred. In general, eligible investors can preserve their petitions by associating with a new sponsor or investment.

Shah v. Emmel, a 2025 lawsuit in federal court in California, tested those protections. The investors argued that USCIS denied their petitions before terminating their regional center, a sequence that kept them from qualifying. In February 2026, the court dismissed the case without prejudice because the investors had not first pursued USCIS administrative appeals. The court also found that the investors had plausibly alleged that USCIS acted contrary to the RIA, and the dismissal leaves them free to refile after exhausting those appeals.

The July 2026 proposed rule would give affected investors a defined 180-day window to move to a compliant sponsor while keeping their priority dates. These protections are a safety net, not a substitute for due diligence. A sponsor’s track record, compliance history, and project approval status remain the stronger safeguards.

Cases Outside EB-5 That Could Still Affect Investors

The following lawsuits do not involve EB-5 directly, but their outcomes could still shape investors’ options and timing.

Immigrant Visa Pause for 75 Countries

In January 2026, the State Department paused immigrant visa issuance for nationals of 75 countries. A federal judge in New York vacated that policy on August 21, 2026, and the State Department has confirmed that the pause is no longer in effect. The government has appealed, but the Second Circuit has so far declined to reinstate the pause while the appeal proceeds. Applicants from affected countries should still confirm their current status, because separate travel restrictions may apply.

Gold Card Program Challenges

A lawsuit filed in federal court in Washington, D.C., in February 2026 argues that the payment-based Gold Card program diverts visas Congress assigned to the EB-1 and EB-2 categories, and a separate suit seeks records on how the program is funded and run. The outcome could affect whether wealthy applicants see the Gold Card as a viable alternative to EB-5.

H-1B Fee Litigation

A federal court in Massachusetts vacated the $100,000 supplemental fee on certain H-1B petitions in June 2026, and the First Circuit has declined to reinstate it while the government’s appeal proceeds. A federal court in Washington, D.C., upheld the fee in December 2025, and appeals remain pending in several circuits. H-1B workers weighing EB-5 as a more stable path to a Green Card should follow these appeals and confirm their status with counsel.

What Investors Can Do While the Cases Are Pending

Litigation moves slowly, and early rulings can change on appeal. Make decisions based on the rules in effect today.

If you plan a concurrent filing, work with counsel to build a strong discretionary record and plan ahead for work permit renewals. Review how an offering handles sustainment and the return of capital. If you are from a backlogged country, give serious weight to rural projects. Confirm filing fees close to your filing date, and note that the RIA requires the minimum investment amounts to be adjusted for inflation beginning January 1, 2027. Keep the calendar in mind as well: the regional center program is authorized through September 30, 2027, and any extension requires action by Congress.

The choice of sponsor and project carries more weight than any single court case. A well-documented, USCIS-approved project with an experienced sponsor puts investors in the strongest position under most legal outcomes.

More than 3,000 families from over 70 countries have selected EB-5 projects sponsored by EB5AN regional centers. Our expert team has more than a decade of experience and offers clients high-quality, low-risk EB-5 regional center projects with a 100% USCIS project approval rate.

If you would like to know more about your EB-5 investment options, book a free call with our expert team today.