Court Dismisses EB-5 Delay Lawsuit: What Green Card Seekers Must Know
A federal court in Washington, D.C. dismissed an Indian investor's lawsuit against USCIS in September 2026 after her EB-5 green card petition sat unanswered for more than 19 months. The court ruled it has no power to force USCIS to speed up the review — because Congress gave the agency full discretion over how and when to process these petitions. If you are waiting on an EB-5 application, you may have fewer legal options than you thought.
A federal judge in Washington, D.C. dismissed Ruchi Rajesh Gupte's lawsuit against senior Department of Homeland Security officials in September 2026, ruling that the court has no jurisdiction to force USCIS to act on her EB-5 investor petition. Gupte, a national of India, had invested more than $800,000 into a commercial development in Philadelphia and filed her Form I-526E — the first step in the EB-5 green card process — in June 2024. After more than 19 months with no decision and no meaningful feedback, she sued to compel a ruling. The court threw the case out without even looking at the merits.
Why the court said it cannot help
The judge's reasoning comes down to two provisions of the Immigration and Nationality Act (INA) working together. First, the INA strips courts of jurisdiction over any agency action that Congress has left to the discretion of the Secretary of Homeland Security. Second, a separate INA provision states that the Secretary "may process" I-526E petitions "in a manner and order established by the Secretary" — language the court read as a clear grant of discretion. Because USCIS has full legal authority to decide how and when to process these petitions, no court can step in and demand faster action. The same court reached the same conclusion just eight days earlier in a nearly identical case, Rayan v. Mullin, decided September 21, 2026.
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The ruling also noted that several federal appeals courts — including the 11th and 5th Circuits — have already blocked similar lawsuits targeting the I-485 application, which is step two of the EB-5 process. The D.C. court found the discretion language covering I-526E petitions is actually even broader than the language those circuits analyzed. In short, EB-5 investors now face a consistent wall of court decisions saying judges cannot speed up either stage of the green card process.
What this means for your green card application
The EB-5 path to a green card involves three forms: I-526E (investor classification petition), Form I-485 (application for a green card from inside the U.S., called "adjustment of status"), and Form I-829 (removal of conditions for permanent residence). Gupte's case was stuck at step one. The court's ruling means that at every stage, USCIS controls the timeline — and courts will not intervene. For investors already in the queue, this decision closes what many had hoped was a legal pressure valve.
What to do
- Before filing any lawsuit over an EB-5 delay, consult an immigration lawyer — courts have now dismissed at least two such cases in 2026 for lack of jurisdiction, and litigation costs can be significant with little chance of success.
- Contact your U.S. congressional representative's office and ask them to submit a congressional inquiry to USCIS on your behalf. This informal step sometimes prompts the agency to review a pending case.
- Check your case status regularly on the USCIS website and respond immediately to any requests for evidence (RFE) — delays in your response can add months to processing.
- Keep all investment records, job-creation documentation, and source-of-funds evidence organized and up to date, since USCIS may request them at any point during adjudication.
Related: our step-by-step guide — “Immigration Court Rulings”.
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This ruling, combined with the court's earlier September 2026 decision in Rayan v. Mullin, signals a clear pattern: federal courts in D.C. will not compel USCIS to adjudicate I-526E petitions faster. The statute explicitly gives the Secretary of Homeland Security discretion over the 'manner and order' of processing — and courts read that as blocking judicial review of delay claims. EB-5 investors stuck in long queues should explore whether a congressional inquiry through their U.S. representative's office can prompt informal agency attention, and should consult an immigration attorney to review all available options.
Frequently Asked Questions
What is the EB-5 program and who can apply?
The EB-5 program lets foreign nationals apply for a U.S. green card by investing in a commercial enterprise that creates at least 10 full-time jobs for U.S. workers. The minimum investment is $1,050,000, or $800,000 if the project is in a targeted employment area or involves infrastructure. The process starts with Form I-526E, filed with USCIS.
Can I sue USCIS if my EB-5 petition has been pending for a long time?
Based on the September 2026 ruling in Gupte v. Mullin — and a nearly identical ruling in Rayan v. Mullin from the same court — federal courts have said they cannot force USCIS to act faster on I-526E petitions. The law gives USCIS full discretion over how and when to process these petitions, which removes the court's power to intervene. Suing for unreasonable delay is very unlikely to succeed under current case law.
What are my options if USCIS is taking too long on my I-526E?
Litigation is now a very limited option. Lawyers recommend contacting your U.S. congressional representative's office to request a congressional inquiry — this is an informal but sometimes effective way to get agency attention. You can also submit an inquiry through the USCIS online case status tool or request an InfoPass appointment. An immigration attorney can help you decide which approach fits your situation.
Does this ruling affect other green card applications, like the I-485?
The court noted that multiple federal appeals courts have already ruled that judges cannot force USCIS to speed up I-485 applications (step two of the EB-5 process) either. So both major stages of the EB-5 green card process — the I-526E petition and the I-485 adjustment of status application — are now shielded from judicial delay challenges under current law.