Court Dismisses EB-5 Investors' Suit Over USCIS Delays
A federal court in Washington, D.C. dismissed a lawsuit brought by six EB-5 investors who had been waiting more than 35 months for USCIS to process their green card petitions. The court ruled in November 2026 that it has no power to force the agency to act faster. For thousands of EB-5 investors stuck in the same backlog, the decision closes one legal door — at least in this court.
Six foreign nationals from India and China each invested $800,000 into a U.S. commercial enterprise in a targeted employment area — the required amount under the EB-5 investor visa program. They filed Form I-526E petitions (the first step toward a green card through EB-5) with USCIS between January and December 2023. By the time the court ruled, their petitions had been sitting unanswered for more than 35 months. They sued the Department of Homeland Security in January 2026, asking a federal judge to order USCIS to decide their cases.
Why the Court Said No
The U.S. District Court for the District of Columbia dismissed the case, agreeing with the government that it lacks jurisdiction — meaning it has no legal authority to hear this type of claim. The key statute is 8 U.S.C. § 1252(a)(2)(B)(ii), which bars courts from reviewing decisions that Congress left to the Secretary of Homeland Security's discretion. The EB-5 Reform and Integrity Act of 2022 gives the Secretary broad authority to process petitions "in a manner and order established by the Secretary." The court found that USCIS's choices about how and when to process I-526E petitions fall squarely within that discretion — and therefore outside the court's reach.
Immigration Deadlines 2026 — Free
Download PDF with all key dates
The ruling follows a Supreme Court decision from 2026, Mullin v. Doe, which held that similar judicial-review bars apply broadly to agency actions leading up to a final decision — not just the final decision itself. Courts in the D.C. district are split on this exact question. Some judges have ruled that agency delay is "inaction," not a "decision," and therefore courts can review it. This judge sided with the other camp. Two of the original eight plaintiffs had their petitions approved while the case was pending and were dropped from the lawsuit.
What This Means for EB-5 Investors
This ruling does not mean USCIS is free to delay forever without consequence. It means this particular legal strategy — suing in federal district court under the Administrative Procedure Act to compel faster processing — did not work here. Other courts in the same district have reached the opposite conclusion, so the legal landscape is still unsettled. Immigration attorneys say investors should watch how the D.C. Circuit Court of Appeals eventually resolves this split, as an appellate ruling would bind all lower courts in the district.
What to do
- If your I-526E petition has been pending for more than a year, consult an immigration attorney who handles EB-5 cases to review your options — including whether a mandamus lawsuit makes sense given the current court split.
- Track your petition status through your USCIS online account and keep records of all filing receipts and correspondence.
- Ask your attorney about the EB-5 processing timelines set by the RIA — the law requires USCIS to target 120-day adjudication for petitions in targeted employment areas, which may support future legal arguments.
- Follow rulings from the D.C. Circuit Court of Appeals, which may resolve the split among district courts on whether judges can compel USCIS to act.
What to do, step by step — see our guide “Appealing to the BIA”.
Fishkin Law Firm, New York
This ruling is a setback, but it is not the final word. Courts in the same district have ruled the opposite way, and the D.C. Circuit has not yet resolved the split. Investors whose I-526E petitions have been pending for more than 35 months may still have viable mandamus claims before a different judge — the outcome depends heavily on which courtroom you land in. The RIA's statutory processing timelines also remain a potential hook for future litigation. Speak with an EB-5 attorney before assuming you have no legal recourse.
Frequently Asked Questions
What is a Form I-526E and why does it matter for a green card?
Form I-526E is the petition an EB-5 investor files with USCIS to prove they have made a qualifying investment. It is the first required step toward getting a green card through the EB-5 program. Without an approved I-526E, you cannot move forward in the process.
Can I still sue USCIS if my I-526E has been delayed for years?
Possibly. Courts in Washington, D.C. are split on this question. Some judges have dismissed these lawsuits, as in this case. Others have allowed them to proceed. The answer depends on which judge is assigned to your case and how the law develops. An immigration attorney can assess your specific situation.
How long is USCIS supposed to take to process an I-526E petition?
The EB-5 Reform and Integrity Act of 2022 set a target of 120 days for petitions involving investments in targeted employment areas (high-unemployment areas). USCIS has not consistently met that target, which is why many investors have turned to the courts.
What happens to my investment if USCIS never processes my petition?
The court ruling does not affect your investment itself — that is a separate matter governed by your agreement with the regional center. However, prolonged USCIS inaction can delay or block your path to a green card. Consult both an immigration attorney and a financial advisor if you are concerned about your investment.