Major lawsuits challenging U.S. immigration policy remain pending, paused, or under appeal. Courts have issued some preliminary or limited rulings, but few cases have been resolved.
These disputes could affect EB-5 investors by changing adjustment-of-status procedures, investment sustainment requirements, visa availability, fees, employment authorization, and related immigration programs.
CLAIMS DIRECTLY INVOLVING THE EB-5 VISA
The latest addition: USCIS adjustment-of-status challenge
- AAUP v. Mullin (Case No. 1:26-cv-14527)
- Filed Oct. 5, 2026, in the U.S. District Court for the District of Massachusetts
- Lead litigators: Erez Reuveni of Democracy Forward and Sarah Wilson of Colombo & Hurd, in partnership with the American Immigration Council and the American Immigration Lawyers Association
The case challenges two USCIS policy updates issued this year. The May 21 policy memo (PM-602-0199) describes adjustment of status to lawful permanent residence as an extraordinary form of discretionary relief and treats consular processing as a negative factor. The Aug. 5 policy alert (PA-2026-05) allows officers to deny benefit requests, including green card applications, without first issuing Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs). Both policies remain in effect while the case proceeds.
Impact on EB-5: A ruling could determine whether USCIS can deny I-485 applications filed concurrently with I-526E petitions without first issuing an RFE or NOID, and whether choosing to adjust status in the U.S. can weigh against investors.
EB-5 sustainment period
- Invest in the USA (IIUSA) v. DHS and USCIS (Case No. 1:24-cv-00918-ACR)
- Filed in March 2024 in the U.S. District Court for the District of Columbia
- Lead litigators: IIUSA’s internal and retained general counsel.
IIUSA challenged October 2023 USCIS guidance setting a two-year capital-sustainment period under the EB-5 Reform and Integrity Act (RIA), arguing the agency adopted it without notice-and-comment rulemaking. In a separate petition for rulemaking, IIUSA asked USCIS to adopt a five-year period instead.
In July 2025, the court declined to rule on the merits and held the case pending USCIS rulemaking, ordering periodic status reports. DHS published a proposed RIA rule on July 2, 2026, that would codify a two-year sustainment period; the comment period closed Aug. 31.
Impact on EB-5: A ruling for IIUSA could invalidate the two-year guidance, potentially lengthening how long capital must stay at risk and changing redeployment and repayment timelines.
EB-5 RIA good-faith provisions
- Shah et al. v. Emmel (Case No. 3:25-cv-05123)
- Filed in June 2025 in the U.S. District Court for the Northern District of California
- Lead litigators: Matthew T. Galati and Alexandra George Santhanam of The Galati Law Firm.
EB-5 investors sued USCIS after it denied their I-526 petitions before terminating their regional center, Texas Longhorn Investments, a sequence that left them ineligible for the RIA’s good-faith investor protections. On Feb. 20, 2026, U.S. District Judge Rita F. Lin granted the government’s motion to dismiss without prejudice because the investors had not exhausted administrative appeals. She found, however, that they plausibly alleged USCIS acted contrary to the RIA by delaying the termination until after their petitions were denied.
Impact on EB-5: The ruling signals that investors must exhaust USCIS administrative appeals before suing, while suggesting courts may scrutinize USCIS if it delays a mandatory termination in a way that sidesteps good-faith protections.
Unused EB-5 visas appeal
- IIUSA v. Blinken (Case No. 2:24-cv-00984)
- Filed in August 2024 in the U.S. District Court for the Eastern District of Wisconsin
- Lead litigators: Brad Banias of Banias Law LLC and Bernard Wolfsdorf of WR Immigration.
The original lawsuit challenged the State Department’s transfer of unused set-aside EB-5 visas into the unreserved category. In 2024, the district court denied IIUSA’s request for a preliminary injunction, finding the RIA itself requires the carryover. As of October, the case was pending before the 7th U.S. Circuit Court of Appeals under Appeal No. 25-1842.
Impact on EB-5: A successful appeal could restore thousands of unused visas and change availability and wait times for backlogged nationalities.
Overpaid EB-5 fees
- American Immigrant Investor Alliance (AIIA) v. USCIS
- Filed in June 2026 in the U.S. District Court for the Western District of Washington
- Lead litigators: The Galati Law Firm and Wasden LLC, representing the AIIA.
The case follows Moody et al. v. Mayorkas, filed in March 2024 by AIIA and EB-5 investor Samantha Moody in the U.S. District Court for the District of Colorado, challenging the original EB-5 fee increases. On Nov. 12, 2025, U.S. District Judge Charlotte N. Sweeney ruled that the increases were unlawful because USCIS had not completed the mandatory fee study required by the RIA before raising fees.
Her order stayed; the EB-5 fee increases, restoring pre-April 2024 fees, but she did not order refunds. AIIA’s class action seeks repayment for those who paid the higher fees between April 1, 2024, and Nov. 12, 2025.
As of October, the case was awaiting class-action certification proceedings in the U.S. District Court for the Western District of Washington.
Impact on EB-5: The case could determine how investors and regional centers recover excess fees paid under the invalidated schedule.
End of automatic EAD renewal
- Jane Doe 1 et al. v. United States Department of Homeland Security (Case No. 8:26-cv-00060)
- Filed in January 2026 in the U.S. District Court for the Central District of California
- Lead litigators: Jonathan D. Wasden of Wasden Law and Justin Tseng of the Law Offices of Justin Tseng.
The lawsuit, brought by seven H-4 dependent spouses, challenges the October 2025 interim rule ending the 540-day automatic extension for renewal employment authorization documents (EADs). On Sept. 10, 2026, the court granted a preliminary injunction covering only the seven named plaintiffs, finding DHS likely failed to follow required procedures. DHS finalized the rule on Oct. 14, 2026.
Impact on EB-5: The case could determine whether EB-5 investors face employment-authorization gaps while USCIS processes their I-485 applications and EAD renewals. For now, adjustment applicants who file EAD renewals on or after Oct. 30, 2025, receive no automatic extension.
CLAIMS THAT COULD INDIRECTLY AFFECT THE EB-5 VISA
Lawsuits over the “Gold Card” visa program
AAUP v. DHS (Case No. 1:26-cv-00300-RJL)
- Filed in February 2026 in the U.S. District Court for the District of Columbia
- Lead litigators: Sarah Wilson of Colombo & Hurd and Public Citizen Litigation Group, with the Democracy Defenders Fund.
The American Association of University Professors (AAUP) and several immigrant professionals challenged the legality of the payment-based fast-track program, which costs $1 million for individuals and $2 million for corporations. They argue it unlawfully diverts congressionally mandated EB-1 and EB-2 visas.
As of October 2026, the case was awaiting a decision on the government’s motion to dismiss, refiled in June after the plaintiffs amended their complaint and fully briefed Sept. 1. U.S. District Judge Richard J. Leon presides.
Impact on EB-5: A ruling against the Gold Card could preserve EB-1 and EB-2 visa numbers for traditional applicants and remove a payment-based alternative that competes with EB-5 for wealthy applicants.
DDF v. DHS (Case No. 1:26-cv-01230)
- Filed in April 2026 in the U.S. District Court for the District of Columbia
- Lead litigators: Kevin Bell of the Free Information Group and Sarah Wilson of Colombo & Hurd.
The Democracy Defenders Fund filed this Freedom of Information Act (FOIA) lawsuit to obtain records on how the Gold Card program was funded, structured, and administered.
As of October 2026, federal agencies were under a court-monitored rolling schedule to release internal communications after litigation to enforce statutory deadlines.
Impact on EB-5: The case could show whether Gold Card development diverted public funds or USCIS resources from other visa processing.
Lawsuit over the 75-country immigrant-visa ban
- CLINIC v. Rubio (Case No. 1:26-cv-00858)
- Filed in February 2026 in the U.S. District Court for the Southern District of New York
- Lead litigators: Sarah Wilson of Colombo & Hurd and Baher Azmy of the Center for Constitutional Rights, with the National Immigration Law Center as co-counsel.
The Catholic Legal Immigration Network (CLINIC), African Communities Together and individual applicants challenged the freeze on immigrant visa issuance for nationals of 75 countries. On Aug. 21, 2026, U.S. District Judge Jeannette A. Vargas ruled that the ban violated the Immigration and Nationality Act and vacated it. The government appealed Sept. 10, and Vargas denied its request for a stay Sept. 25.
On Oct. 19, Judge Richard J. Sullivan of the 2nd U.S. Circuit Court of Appeals, acting alone, issued a split temporary order. The judge denied a stay of the ruling vacating the policy, so the ban remains unenforceable. However, the judge temporarily paused the part of the ruling that required the State Department to reconsider about 43,000 visas refused solely under the policy until a three-judge panel rules. The State Department told the district court it is still re-reviewing those cases under its own guidance.
Impact on EB-5: The ruling reopens consular processing for EB-5 applicants from affected countries, though nationals of the 39 countries also covered by the separate Proclamation 10998 travel ban remain largely barred from immigrant visas.
The three H-1B fee lawsuits
As of October 2026, lawsuits had blocked nationwide enforcement of the $100,000 supplemental H-1B visa fee. The government is defending the fee in the 1st, 9th, and D.C. circuits.
- State of California v. Mullin (No. 1:25-cv-13829 / Appeal No. 26-1699): On June 8, 2026, U.S. District Judge Leo Sorokin in Boston vacated the fee policy as an unlawful tax beyond the president’s authority. On July 24, the 1st Circuit denied the government’s emergency-stay request, preserving the nationwide block.
- Global Nurse Force v. Trump (No. 3:25-cv-08454): On Sept. 30, 2026, U.S. District Judge Haywood S. Gilliam Jr. in San Francisco issued a preliminary injunction blocking the agencies’ implementing policies. The Justice Department appealed to the 9th Circuit on Oct. 9; plaintiffs are seeking summary judgment.
- Chamber of Commerce v. DHS (No. 1:25-cv-03675 / Appeal No. 25-5473): On Dec. 23, 2025, a D.C. district judge upheld the fee under Section 212(f). The Chamber appealed to the D.C. Circuit; the court heard argument March 9, 2026, and has not ruled.
Impact on EB-5: Blocking the fee could lower employer costs and reduce pressure to pursue EB-5 as an alternative.
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