What's Happening?
Several lawsuits are currently moving through U.S. federal courts that could significantly alter the EB-5 Immigrant Investor Program. These cases address various aspects, including how investors apply for Green Cards, the required duration of capital
investment, visa availability, and government fees. In October 2026, AAUP v. Mullin was filed, challenging USCIS policies that treat in-country adjustment of status as a negative factor and allow denials without Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs). Another case, Invest in the USA (IIUSA) v. Blinken, disputes the State Department's practice of transferring unused reserved EB-5 visas to the unreserved category. Additionally, a 2026 class action by the American Immigrant Investor Alliance (AIIA) seeks refunds for investors who paid invalidated EB-5 fees, following a November 2025 court ruling that USCIS improperly raised fees. A new EB-5 fee rule, published September 30, 2026, will raise fees by approximately 70% starting November 30, 2026.
Why It's Important?
These lawsuits are critical for EB-5 investors and the program's future. The outcome of AAUP v. Mullin could determine whether investors already in the U.S. face increased hurdles or denials when concurrently filing for adjustment of status, potentially impacting their ability to live and work in the country. The IIUSA v. Blinken case directly affects visa supply and wait times, particularly for investors from high-demand countries. The fee-related litigation and the new fee rule have immediate financial implications, with investors potentially receiving refunds for past payments but facing significantly higher costs for future applications. These legal challenges highlight ongoing tensions between congressional intent, agency implementation, and investor interests, shaping the operational framework and attractiveness of the EB-5 program for foreign capital investment and immigration.
What's Next?
Most of these cases remain unresolved, with some potentially extending into 2027. Investors should continue to make decisions based on current rules. Those planning concurrent filings should work with legal counsel to build strong discretionary records and prepare for work permit renewals. The new EB-5 fee schedule takes effect on November 30, 2026, requiring all filings postmarked on or after that date to include the increased fees. Investors should confirm correct amounts with counsel before filing. The regional center program is authorized through September 30, 2027, meaning congressional action will be required for its extension. The outcomes of these lawsuits will likely lead to clearer guidelines from USCIS, potentially through formal regulations, impacting future EB-5 application strategies and investment decisions.
Beyond the Headlines
The multitude of lawsuits surrounding the EB-5 program reflects a broader struggle over regulatory clarity and administrative discretion within U.S. immigration policy. The disputes over USCIS policy guidance versus formal rulemaking highlight the legal and practical challenges when agencies interpret broad legislative mandates. This legal landscape creates significant uncertainty for foreign investors, potentially deterring capital inflow and impacting job creation intended by the program. Furthermore, the fee disputes raise questions about the transparency and legality of government fee-setting processes. The ongoing litigation underscores the need for a more stable and predictable regulatory environment for investment-based immigration, which could influence future legislative reforms or judicial interpretations of administrative law beyond the EB-5 context.
