By Renata Duarte
Federal litigation over public charge policy is the latest variable that EB-5 investors should monitor in an incredibly busy period of immigration regulatory changes.
On September 14, state and municipal coalitions filed separate lawsuits challenging the Department of Homeland Security’s (DHS) new public charge rule that became effective on September 18. Shortly after, on September 17, Make the Road New York v. DHS was filed.
This lawsuit, supported by four nonprofit organizations represented by The Legal Aid Society, Democracy Forward, and the Center for Constitutional Rights, aims to block and vacate the rule along with related guidance from United States Citizenship and Immigration Services (USCIS). They argue that the policies unlawfully expand the consideration of public benefits and violate federal immigration and administrative law.
However, filing a lawsuit does not automatically halt the implementation of a federal regulation.
These challenges concern the DHS framework and are separate from the CLINIC v. Rubio lawsuit, which paused an earlier Department of State (DOS) 75-country immigrant visa issuance suspension.
Removing that barrier, however, should not be confused with automatic visa approval or an exemption from public charge review.
Parallel legal battles exposed weaknesses in the 75-country ban rule
Before advocates shifted their focus to the new public charge rules, the federal courts were heavily engaged in dismantling the DOS’s controversial 75-country immigrant visa pause.
Landmark rulings in mid-2026 exposed structural and statutory vulnerabilities in the administration’s sweeping immigration mandates.
One was Judge Amit P. Mehta’s July 31 decision in the U.S. District Court for the District of Columbia, which ruled for a Brazilian EB-5 investor and his family in De Moura Gomes v. Rubio. He barred application of the 75-country ban policy to their cases and required individualized re-adjudication within 60 days after the applications were deemed complete. The order did not compel visa issuance or extend relief to all affected applicants.
Separately, on August 21, Judge Jeannette A. Vargas of the Southern District of New York granted broader relief in CLINIC v. Rubio, vacating the policy and refusals based solely upon it. The court found that nationality-based refusals of otherwise eligible applicants violated statutory and regulatory limits on visa refusals, the Immigration and Nationality Act (INA)’s prohibition on nationality discrimination in immigrant visa issuance, and limits on the Secretary’s authority over consular decisions.
This was a policy-wide vacatur under the Administrative Procedure Act (APA), not a conventional nationwide injunction. Its effect extends throughout the consular system, rather than only to named plaintiffs. It is not binding appellate precedent nationwide. Refusals supported by independent grounds remain intact, and other claims remain pending.
While both De Moura Gomes v. Rubio and CLINIC v. Rubio originated from challenges to the same immigrant visa issuance policy, their judicial outcomes and scopes differ significantly. De Moura Gomes focused on individual relief for a Brazilian EB-5 investor and mandated a specific timeline for re-adjudicating the plaintiffs’ applications to address their immediate needs. In contrast, CLINIC had a broader impact, resulting in a policy-wide vacatur that nullified the nationality-based refusals encompassed in the earlier policy.
Now public charge regulation updates are under scrutiny
Importantly, CLINIC did not find the policy contrary to INA § 212(a)(4). Officers still had to assess public charges on a case-by-case basis. The unlawful feature was an additional nationality-based refusal under INA § 221(g), even after the applicant was found otherwise eligible.
The public charge statute requires consideration of age, health, family status, assets and financial resources, education, and skills. An approved I-526 or I-526E establishes the investor’s immigrant classification, not the admissibility of every family member. The investment itself does not replace an assessment of the family’s circumstances after immigration.
For EB-5 investors, the practical concern is access to resources beyond the investment. Counsel should evaluate remaining liquidity, continuing income, household obligations, and anticipated medical expenses. Evidence that the investment was lawfully sourced answers a different question from whether the family can support itself in the United States.
Consular delays and the new public charge worksheet
In its September 8 court filing, DOS reported more than 43,000 applications subject to vacatur and remand. It acknowledged rescheduling immigrant visa appointments globally through September and provided no fixed completion date for reconsideration. Cases would proceed individually, with updated documents or another interview required where appropriate. This concerns immigrant visa operations, not a suspension of every visa category.
The filing also confirmed a public charge worksheet deployed globally under August 15 guidance, together with September 1 training requirements and expanded managerial review. DOS said these tools apply to immigrant visa adjudications worldwide, not only the remanded cases. Some applicants may face additional public charge information requests; others may need nothing further before issuance.
The report describes an officer assessment tool, not a universal applicant-filed form. These are government representations about implementation, not a judicial finding that DOS has complied with or violated the judgment. For investors, the distinction is clear: the categorical barrier has ended, but case-specific review and operational delays remain.
Which USCIS form changes matter for EB-5?
A separate DHS public charge rule takes effect September 18, 2026. It applies to applications for admission made on or after that date and adjustment applications postmarked or electronically submitted on or after that date. It rescinds the 2022 regulatory framework but does not govern DOS’s visa-issuance procedures abroad.
For EB-5 investors adjusting status inside the United States, the revised Form I-485 is directly relevant. USCIS requires the September 18, 2026, edition for filings postmarked or electronically submitted on or after that date, with no grace period for older editions. This means you must not file the new edition early.
The revised Form I-864 has a different transition deadline: USCIS requires the August 24 edition beginning October 1. However, this affidavit ordinarily is not required for an EB-5 self-petitioner. It should not be presented as a new filing obligation for every investor.
DOS has also introduced a public charge bond pilot for selected immigrant visa applications. Following a public charge refusal, a consular officer may direct the applicant to seek a bond through USCIS; applicants cannot initiate the procedure preemptively. Bond approval does not guarantee visa issuance, and the applicant must otherwise qualify for the immigrant visa.
The September 30 “grandfathering” deadline is a separate issue
September 30, 2026, is the filing cutoff for the EB-5 Reform and Integrity Act (RIA) protection, which requires continued processing of qualifying regional center petitions despite a later program lapse. It is not the Regional Center Program’s expiration date, which remains September 30, 2027. This protection does not guarantee approval, cure deficient source-of-funds evidence, or exempt applicants from public charge review.
Investors should not pursue this by sacrificing project diligence or financial documentation to meet the deadline. Visa availability and derivative eligibility under the Child Status Protection Act also require separate review.
What should EB-5 investors take away?
The elimination of the 75-country ban opened the door for thousands of families, but the immediate activation of stricter public charge rules and immediate form deadlines means the window for error is zero.
The court decisions removed an unlawful nationality-based obstacle, not the remaining requirements for permanent residence. The priorities are to identify the basis for any prior refusal, distinguish consular processing from adjustment requirements, and prepare a strong financial and immigration record. The legal victory is significant, but it does not guarantee immediate issuance.
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