Court Dismisses EB-5 Delay Lawsuit: What Investors Must Know
A federal court in Washington, DC dismissed an EB-5 investor's lawsuit against USCIS in October 2026, ruling that courts lack the power to force the agency to speed up green card processing. The plaintiff, a New Jersey resident, had waited two years for a decision on his investor visa petition with no result. The ruling signals that APA delay lawsuits over EB-5 applications face a steep legal barrier in DC federal courts.
A federal court in Washington, DC dismissed an EB-5 investor's lawsuit against USCIS in October 2026, ruling that it had no power to force the agency to act faster on his green card application. The case, Huang v. USCIS, shows a growing legal wall that immigrant investors face when they try to sue over long processing delays.
What happened in this case
Shuowen Huang, a New Jersey resident, filed an I-526E petition — the first step in the EB-5 investor green card process — with USCIS in May 2024. Two years passed with no decision. In May 2026, he sued USCIS under the Administrative Procedure Act (APA), asking the court to order USCIS to decide his case within 30 days. USCIS moved to dismiss the lawsuit in July 2026. Huang never filed a response. The court dismissed the case on two separate grounds.
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First, the court found that Huang's silence after USCIS filed its motion to dismiss was itself enough to end the case under a local procedural rule. But the judge went further and addressed the legal substance too. The court ruled that federal law strips courts of jurisdiction — meaning courts simply cannot hear — challenges to how USCIS orders and manages EB-5 petitions. The key statute, 8 U.S.C. § 1252(a)(2)(B)(ii), blocks judicial review of any action that Congress gave the Secretary of Homeland Security discretion to decide. Because the law says the Secretary "may" process EB-5 petitions "in a manner and order established by the Secretary," the court found that processing order is discretionary — and therefore off-limits for court review.
The court acknowledged a real tension in the statute. A separate provision requires USCIS to prioritize petitions from rural areas. That mandatory language sits right next to the discretionary language. The judge noted this conflict but still sided with USCIS, agreeing with a similar ruling issued by Judge Bates in Camarena v. Mullin in June 2026. The bottom line: suing USCIS over EB-5 processing delays is an increasingly difficult legal path in the DC federal courts.
What to do if your EB-5 petition is delayed
- Check your I-526E or I-526 receipt notice and confirm USCIS received your petition. Track your case status at uscis.gov using your receipt number.
- Contact USCIS through their online inquiry tool if your case is outside normal processing times — this is different from filing a lawsuit and does not require a lawyer.
- If you are considering legal action over a delay, consult an immigration attorney before filing. This ruling shows that APA delay lawsuits against USCIS over EB-5 cases face serious jurisdictional barriers in DC federal court.
- Ask your attorney whether filing in a different federal district — outside DC — could produce a different result, since courts in other circuits may interpret the discretion question differently.
Related: our step-by-step guide — “Immigration Court Rulings”.
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This ruling confirms what many EB-5 practitioners have seen building in DC courts: the word 'may' in the processing-order statute is being read as a near-complete shield against delay litigation. Before filing an APA mandamus action, investors should assess which federal circuit they are in — courts outside DC have sometimes reached different conclusions on whether USCIS delay is truly discretionary. Critically, failing to respond to a motion to dismiss, as happened here, is a procedural error that can end your case regardless of its merits. Consult an immigration attorney experienced in federal litigation before taking any court action.
Frequently Asked Questions
Can I sue USCIS if my EB-5 petition has been delayed for years?
You can file a lawsuit, but this October 2026 ruling shows DC federal courts are likely to dismiss it. The court found that federal law gives USCIS broad discretion over how it orders and processes EB-5 petitions, which blocks judicial review of delay claims. Courts in other parts of the country may see this differently, so where you file matters.
What is an I-526E petition?
Form I-526E is the petition you file with USCIS to start the EB-5 Regional Center investor visa process. It asks USCIS to confirm that your investment meets the legal requirements — a minimum dollar amount that stays invested for at least two years and creates at least ten full-time jobs for US workers. If USCIS approves it, you can then apply for conditional permanent resident status (a conditional green card).
What happens if I don't respond to a motion to dismiss in my immigration lawsuit?
In DC federal court, if you do not file a response within 14 days, the court can treat the motion as conceded — meaning you automatically lose, as happened in this case. Even if your underlying claim is strong, silence is treated as agreement with the other side's arguments. Always respond on time or ask the court for more time.
Does USCIS have to process EB-5 petitions in the order they were received?
Generally yes — the law includes a 'priority rule' requiring USCIS to process petitions in the order received. But Congress also gave the Secretary of Homeland Security discretion to set the 'manner and order' of processing, and separately requires that petitions from rural areas be prioritized. Courts are still working out how these rules interact, and this ruling shows that discretion language gives USCIS significant flexibility.