The EB-5 Immigrant Investor Program remains a vital pathway for foreign nationals seeking U.S. residency through investment. However, recent litigation (Invest in the USA v. Department of Homeland Security) has introduced significant uncertainty regarding USCIS’s sustainment requirements for EB-5 capital investments. At Ahluwalia Law Offices, we prioritize keeping our clients informed on developments that may affect their immigration and financial planning. Below, we outline the current status of this pivotal case and its implications for investors.
Background: The Lawsuit Challenging USCIS Policy
Under the EB-5 Reform and Integrity Act (RIA) of 2022, USCIS published guidance in October 2023 via its official “Questions and Answers” webpage, interpreting the statutory investment sustainment period. This guidance has been challenged in federal court, with plaintiffs alleging USCIS bypassed mandatory rulemaking procedures under the Administrative Procedure Act (APA). Current regulations (8 C.F.R. § 216.6) require investors to maintain their capital investment throughout the two-year conditional residency period. Notably, USCIS has not yet updated its EB-5 Policy Manual to reflect its post-RIA stance, creating ambiguity for stakeholders.
Current Status of the Litigation
Following a March 2025 hearing, U.S. District Court Judge Ana Reyes directed both parties to negotiate next steps, including whether to pause the case pending USCIS’s rulemaking process. As of March 21, 2025, no agreement has been reached:
- USCIS has proposed issuing a Notice of Proposed Rulemaking (NPRM) by November 2025 but opposes retroactive changes to existing policies.
- Plaintiffs seek a judicial ruling on motions to dismiss and for summary judgment, advocating for a finite sustainment period (up to five years) and prospective application of new rules.
Potential Outcomes and Investor Implications
Three scenarios could emerge:
- Settlement Agreement: If parties settle, pre-settlement investors may retain the October 2023 policy’s protections, while post-settlement filers would follow future USCIS rules.
- Judicial Ruling: Judge Reyes could independently interpret the RIA’s sustainment requirements, bypassing USCIS’s guidance.
- Regulatory Delay: The case may be paused until USCIS finalizes new regulations, prolonging uncertainty.
Guidance for EB-5 Investors
For foreign nationals considering or currently pursuing EB-5 visas:
- Pre-RIA Investors: Those who filed Form I-526 before March 2022 remain subject to the original two-year sustainment period.
- Post-RIA Investors: New I-526E petitioners face potential policy shifts. While USCIS’s October 2023 guidance remains active, future rulemaking or court decisions could alter requirements.
- Risk Mitigation: Consult legal counsel to evaluate filing timelines, monitor USCIS updates, and prepare for public comment periods during rulemaking.
Ahluwalia Law’s Proactive Approach
Our team is closely tracking this litigation and its impact on EB-5 stakeholders. We advise clients to:
- Review investment timelines with an emphasis on flexibility.
- Stay informed through USCIS’s EB-5 Questions and Answers portal.
- Consider submitting public comments during USCIS rulemaking to advocate for favorable policies.
Conclusion
The EB-5 program’s evolving landscape underscores the importance of strategic legal guidance. While uncertainty persists, Ahluwalia Law Offices remains committed to safeguarding our clients’ interests through rigorous compliance and proactive advocacy. For personalized advice tailored to your circumstances, contact our team today.
Disclaimer: This article is based on verified information from USCIS, the U.S. Department of Labor, and federal court filings as of April 2025. Policy changes may occur without notice.
