A lawsuit claiming the U.S. Department of Homeland Security prevented a group of EB-5 investors from obtaining visas will not go forward. The judge found the EB-5 investor group did not challenge a final agency action in their claims. To qualify as a final agency action reviewable by the court, it must be the result of a decision-making process, either determining rights or obligations that offers legal consequences.

The group of investors referred to online guidance, per the judge. Guidance from DHS is meant to solely inform or explain the related element from the EB-5 Reform and Integrity Act of 2022 (RIA).

The dispute centers around the investors’ desire to be included in the RIA’s reserved infrastructure category that requires a minimum of $500,000 invested in a transportation project. The group claims they invested prior to the updated RIA that increased the minimum investment to $800,000. Due to a visa cutoff date for Chinese nationals in the unreserved category, they do not qualify at the lower investment level.

In the lawsuit, the investors and the regional center claim DHS and USCIS misinterpreted the RIA, citing a policy published in an online post and USCIS policy manual update. That update requires infrastructure determinations only when a business plan is initially filed. On this basis, the group claims this is a contradiction to the RIA, which states DHS makes the infrastructure determinations in both filed and already approved business plans. The group fears the EB-5-related visas may never be issued despite their investments.

DHS states the case should be tossed based on the use of guidance versus policy, noted in the investor group’s complaint. The judge agreed with DHS.

If you have questions about investor programs, the EB-5 visa, or any other immigration-related issue, contact us at ILBSG. We actively monitor ongoing updates to U.S. immigration policy to ensure our clients get the right advice for their particular situations.

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