Lawsuits to Watch in 2026: What Could Affect the EB-5 Program

As we move through 2026, several ongoing lawsuits could shape how the EB-5 Immigrant Investor Program is administered, interpreted, and experienced by investors.

While none of these cases eliminate the program, they may influence risk allocation, visa sequencing, investor protections, and overall predictability. For investors and project stakeholders alike, understanding these legal developments is part of responsible long-term planning.

Below is a summary of the key cases to watch and why they matter.

EB-5 Sustainment Period: When Does the Clock Start?

One of the most closely watched EB-5 lawsuits involves the interpretation of the two-year sustainment requirement under the Reform and Integrity Act (RIA).

In October 2023, USCIS updated its Policy Manual to state that for post-RIA investors, the two-year period begins when the capital is fully invested and placed at risk in the project, not when the investor becomes a conditional permanent resident. That guidance remains in effect today.

In 2024, IIUSA filed a lawsuit, arguing that USCIS adopted this interpretation without going through the required notice-and-comment rule-making process. The case does not currently overturn the two-year rule, but challenges how it was implemented.

In 2025, the U.S. District Court for the District of Columbia declined to invalidate the guidance and instead directed USCIS to proceed with formal rule-making. As of early 2026, USCIS’s two-year-from-investment interpretation remains the controlling standard while the regulatory process continues.

Why This Matters

The sustainment period affects how long capital must remain at risk and how projects structure redeployment and repayment timing. Until formal regulations are issued, investors should plan based on the current two-year-from-investment framework.

“Good Faith” Protections Under the RIA

Another significant case involves investors seeking protection under the RIA’s “good faith” provisions after their regional center was terminated.

In June 2025, seven Indian EB-5 investors filed suit in federal court in California, arguing that despite complying with program requirements, their petitions were denied when the regional center they invested in was terminated. They contend USCIS failed to provide adequate opportunity for redeployment under the RIA’s good faith framework.

The case remains ongoing, with motions to dismiss being contested.

Why This Matters

The outcome could clarify the scope of investor protections when issues arise at the regional center level. Investors rely on the RIA’s good faith provisions as a safeguard against circumstances beyond their control. Judicial interpretation here may shape how durable those protections are in practice.

Unused EB-5 Visas and Set-Aside Allocation

Visa allocation remains another area under litigation.

Under the EB-5 Reform and Integrity Act of 2022, approximately 10,000 EB-5 visas are available each fiscal year. Of that total:

• 20% are reserved for Rural projects

• 10% are reserved for High-Unemployment (TEA) projects

• 2% are reserved for Infrastructure projects

• The remaining visas fall under the Unreserved category

If reserved visas are not used within a fiscal year, the statute provides guidance on how they may carry over. The dispute centers on whether unused reserved visas must remain within their designated category in future years or whether the Department of State may reallocate them to the Unreserved category.

In 2024, a federal court in Wisconsin allowed the Department of State to continue transferring unused set-aside visas into the Unreserved pool. An appeal is currently pending.

Why This Matters

Visa sequencing affects wait times, especially for investors from high-demand countries. How courts interpret set-aside allocation rules could influence future visa availability and processing timelines.

I-829 Denials Reviewed in Immigration Court

In late 2025, an immigration judge approved a previously denied I-829 petition marking a notable development.

While I-829 adjudications typically occur within USCIS, this approval signals that investors may have viable avenues for review in immigration court if petitions are denied.

Why This Matters

This development may expand strategic options for investors facing removal of conditions challenges and reinforce the importance of litigation strategy in complex cases.

EB-5 Filing Fees and Potential Refund Litigation

After a federal court ruling in Colorado, USCIS reduced EB-5 filing fees in November 2025 to pre-April 2024 levels. Form I-526/I-526E are now $3,675 (down from $11,160), and Form I-829 is $3,750 (down from $9,525).

The litigation that prompted this change challenged the legality of the earlier fee increase. Additional claims may seek restitution for investors who paid the higher amounts.

Why This Matters

Although primarily financial, fee litigation underscores how agency authority and administrative procedures remain subject to judicial oversight — including in the EB-5 space.

Lawsuits with Indirect Impact on EB-5

Some litigation does not target EB-5 directly but may affect the broader immigration and employment landscape that intersects with investor decisions.

1. The $100,000 H-1B Fee Challenges

Multiple lawsuits are challenging the legality of a proposed $100,000 H-1B filing fee. Plaintiffs argue that it exceeds statutory authority and imposes improper burdens on employers.

While not an EB-5 issue, the outcome could affect industries that frequently intersect with investor capital, including healthcare and education. It may also influence H-1B holders considering transitions to EB-5.

2. End of Automatic EAD Renewal

A separate lawsuit challenges the termination of the 540-day automatic extension for certain Employment Authorization Documents.

For EB-5 investors who concurrently file I-526E and I-485 and rely on interim work authorization, changes in EAD policy can have practical implications for family employment continuity and planning.

3. The Expanding Travel Ban Litigation

Multiple lawsuits have been filed challenging expanded travel restrictions now affecting nationals from 75 countries. These cases argue the policies exceed statutory and constitutional limits.

Any ruling that alters travel or visa processing restrictions could directly affect EB-5 investors from impacted countries, influencing access, interview scheduling, and overall processing logistics.

What This Means for EB-5 Investors

None of these cases eliminate the EB-5 program. However, collectively they illustrate how litigation can shape:

• Interpretation of statutory requirements

• Visa allocation mechanics

• Investor protections

• Administrative authority

• Processing predictability

EB-5 remains authorized by Congress and continues to operate under the framework of the Reform and Integrity Act. But like all areas of immigration law, it evolves through rule-making and judicial review. Understanding the legal landscape helps contextualize risk, set realistic expectations, and reinforce the importance of working with experienced counsel and thoroughly vetted projects.

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