Ongoing litigation could affect the integrity, administration, and economics of the EB-5 visa program.
Rulings in several pending cases could directly and indirectly affect the risk, predictability, and viability of EB-5 investments, projects, and visa issuance pathways.
The resolution of the following lawsuits may clarify or alter the mechanics of the EB-5 program, investor protections, and visa sequencing. These changes can directly impact the risk and timelines for project developers and investors, ultimately shaping the program’s attractiveness and viability.
Claims that involve the EB-5 visa directly
EB-5 sustainment period
In 2024, the trade association Invest in the USA (IIUSA) filed a lawsuit challenging the U.S. Citizenship and Immigration Service (USCIS)’s interpretation of the investment sustainment period for EB-5 applications.
According to the October 2023 Policy Manual update, the 2-year period for investors who submitted Form I-526 after March 15, 2022, begins on the date of the investment. The capital must be at risk and available to the job-creating entity, and investments made over 2 years before filing must still be maintained to assess eligibility.
As of early 2026, the U.S. District Court for the District of Columbia is awaiting USCIS to issue a Notice of Proposed Rulemaking (NPRM) on implementing the EB-5 Reform and Integrity Act (RIA) before making a final decision on how to apply these changes. The court emphasized the lack of evidence warranting judicial intervention at that stage and highlighted USCIS’s expected timeline to publish a final rule in November 2025, which it did not meet.
“Good Faith” provisions of the RIA
In June 2025, seven Indian EB-5 investors filed a suit against Alissa Emmel, chief of the Immigrant Investor Program Office at USCIS, in the California Northern District court, arguing they should have been protected under the “Good Faith” provisions of the RIA after their EB-5 petitions were denied when the regional center they invested in was terminated.
Represented by the Galati Law Firm, the investors argue they followed all necessary procedures and complied with program requirements, yet the U.S. immigration agency failed to act promptly, denying them in 2024 the chance to redeploy their investments into new projects.
The ongoing lawsuit seeks to uphold their rights as “good faith” investors and to challenge USCIS’s decisions. The agency requested additional time to respond to the last motion in December, and Alissa Emmel has changed her attorney. At a hearing on Jan. 27, the plaintiff argued against the government’s motion to dismiss this claim.
Unused EB-5 visas
In 2024, the U.S. District Court for the Eastern District of Wisconsin denied IIUSA’s request for a preliminary injunction against the U.S. Department of State (DOS) to stop the transfer of unused set-aside EB-5 visas to the Unreserved category.
The Wisconsin court upheld the DOS’s continued allocation of these visas under the EB-5 Reform and Integrity Act of 2022 (RIA). Lead counsel, Brad Banias of Banias Law, has filed an appeal, pending review by the court.
WR Immigration, led by attorney Bernard Wolfsdorf, is providing immigration counsel. Wolfsdorf notes that the court’s decision allows the DOS to ignore Congress’s specified allocations. “Their regulation makes it clear a visa must be allocated at the time of approval of the petition, which would avoid wasting the 30,000+ visas that ended up going to other categories, or simply down the drain. Lead counsel Brad Banias submitted a brilliant appeal that is pending,” he says.
Denied I-829 petitions before immigration courts
In November 2025, a U.S. immigration judge approved a previously denied I-829 petition involving an EB-5 investor. Led by Klasko Immigration Law Partners, this ruling is the first successful renewal of its kind in immigration court.
U.S. attorneys expect this approval to establish a precedent for EB-5 investors who face I-829 petition rejections in 2026.
Overpaid EB-5 fees
In November 2025, USCIS lowered EB-5 visa application fees following a Colorado court ruling that month. The fees reverted to pre-April 1, 2024, levels: I-526/I-526E forms are now $3,675 (down from $11,160), and Form I-829 is $3,750 (down from $9,525).
This change followed a 2024 lawsuit filed by the American Immigrant Investor Alliance (AIIA) and others challenging the fee increase. AIIA is now considering a lawsuit for restitution for those who paid the higher fees.
Lawsuit with an indirect effect on the EB-5 program
The H-1B $100K fee
Currently, there are three lawsuits regarding the $100K fee for H-1B visa applications. One was filed by the U.S. Chamber of Commerce; it was initially dismissed but is now under appeal. The other two claims are still ongoing: one from a coalition of California employers and another from 20 attorneys general.
The common argument of the three separate lawsuits is that the fee is unfair and illegal. They claim it violates federal immigration law, imposes unnecessary financial burdens on employers, and disrupts business stability. Overall, they argue that the fee negatively affects both employers and foreign workers, particularly in critical sectors such as healthcare and education. Additionally, the lawsuits express concern that the Department of Homeland Security (DHS) is exceeding its authority and failing to adhere to Congress’s intent regarding the H-1B program.
Connection with EB-5? These challenges affect the broader affordability and feasibility of employing foreign talent. A final ruling could indirectly influence EB-5 project economics, employer practices, and investor sentiment toward EB-5 investments tied to it. Additionally, it could impact H-1B transitions towards EB-5 visas.
End of automatic EAD renewal
On January 8, a group of H-4 visa spouses and immigration advocates filed a lawsuit against DHS in the U.S. District Court for the Central District of California.
They are challenging a new rule that ends the automatic 540-day renewal of Employment Authorization Documents (EADs), arguing that it is unlawful under the Administrative Procedure Act (APA) and harmful to workers, creating gaps in work authorization for refugees, asylum seekers, and high-skilled visa holders.
The H-4 visa is for the spouses and children of H-1B visa holders who contribute significantly to various sectors of the U.S. economy. The seven plaintiffs, represented by Jon Wasden of Wasden Law and Justin Tseng of the Law Offices of Justin Tseng, seek to overturn the rule, restore automatic extensions, and protect those who comply with the rules.
Connection with EB-5? EADs are part of EB-5 application processing, specifically when investors concurrently file I-526 and I-485 petitions. The outcome of this suit could also affect the broader immigration workplace landscape, affecting spouses and dependents of high-skilled H-1B holders who apply for EB-5 visas.
The 39-country ban (now 75)
The U.S. government’s ban refers to a series of expanded travel restrictions that initially barred nationals from 19 countries, then increased to 39, and now stand at 75, from entering the U.S. and pursuing immigration pathways for U.S. visas and citizenship.
“These policies are not just wrong, they are illegal,” says Charles Kuck from Kuck Baxter, a law firm that filed a lawsuit in January in the Northern District of Georgia challenging the ban. The claim represents 276 clients and argues that the DHS has unlawfully paused asylum and other legal immigration applications, impacting thousands stuck in limbo.
Separately, Kuck Baxter will also be part of IMMpact Immigration Litigation’s upcoming lawsuit against the rule. IMMPact is a law firm joint venture that includes Bless Litigation in Boston, Joseph & Hall PC in Denver, and Siskind Susser PC in Memphis. They aim to contest the policy’s legal basis, alleging violations of federal statutes and constitutional rights. The court in which this action will be filed has yet to be determined.
These actions are distinct from the December claim filed by attorney Jim Hacking of Hacking Law Practice. Representing 197 clients in Boston before a federal court, the suit says immigration or administrative laws do not authorize this ban.
There is also the Feb. 2 broad coalition lawsuit in the U.S. District Court for the Southern District of New York against Secretary of State Marco Rubio and the Department of State. The claim is backed by more than a dozen individual and organizational plaintiffs led by the Catholic Legal Immigration Network, Inc. (Clinic vs. Rubio).
Connection with EB-5? These claims seek to reverse the travel ban, which includes the processing of EB-5 visa applications. Any changes to travel and immigration policy can affect investor and EB-5 project stakeholders’ access, investment flows, and investor confidence.
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