Back in February, in our article “A Divisive Storm Within the EB-5 Community in the US “, we discussed the growing tension within the EB-5 community at the IIUSA’s lawsuit on the sustainment of funds: Invest in the USA v. United States Department of Homeland Security. Fast forward to July 29, 2025, and Judge Ana Reyes of the US Court for the District of Columbia delivered what can best be described as a non-decision, seemingly offering no clear victory for either party.
The conclusion of the lawsuit is that the limbo of uncertainty continues. Investors are asking, “What does this mean? When will I get my money back?” Meanwhile, EB-5 lawyers and professionals find themselves at a loss, often responding with a frustrating, “Well, no one is really sure!”
A Missed Opportunity
The disappointment among industry lawyers didn’t stem from allegiance to either side of the case, but rather from the missed opportunity for the court to make a decisive statement, especially in the wake of Loper Bright Enterprises v. Raimondo, U.S. Supreme Court, June 2024.
Back in June 2024, the EB-5 community was buzzing with excitement when the Supreme Court’s momentous decision in Loper Bright Enterprises v. Raimondo overturned Chevron deference, signaling a potential shift in legal interpretation, an unshackling of the courts!
The frustration here arises from the apparent disregard by Judge Reyes, of this revolutionary ruling, leaving many to feel let down by the court’s reluctance to seize this pivotal moment.
The landmark case of Loper Bright was the dawn of the new age
“USCIS position is that they are complying with clear statutory requirements and interpretation. Why are regulations even necessary if the statute is clear?
The landmark case of Loper Bright was the dawn of the new age where courts act like courts and do not engage in useless deference analysis.” John Pratt, ESQ.[1] (Kurzban Kurzban Tetzeli & Pratt)
The court decided to defer for rulemaking rather than making a decision under Loper Bright. The court’s reluctance to issue a decisive ruling effectively opens the door for USCIS to step in and draft its own regulations. This prospect has sparked debate among EB-5 practitioners, who question the necessity of new regulations when the statute itself is clear. It’s already been three years, and USCIS has yet to issue new regulations, mainly because the law, as it stands, provides sufficient directive.
In recent filings, Defendant DHS requested that the lawsuit be put on hold pending rulemaking, while Plaintiff IIUSA sought to have USCIS’s two-year sustainment interpretation vacated in the meantime. The core of this discontent is straightforward: rulemaking is a lengthy process that could easily stretch over two or more years, further prolonging the uncertainty that the industry is eager to resolve. EB-5 practitioners are frustrated, noting that if the judge had been more assertive, much of this lingering uncertainty could have been alleviated.
Will this Judicial Standstill Deter Future Litigation
As the EB-5 community grapples with the implications of this judicial standstill, one must question whether deferring to administrative rulemaking truly serves the best interests of investors and stakeholders. Will the extended timeline of potential regulation bring clarity, or will it mire the process in further complexity? In an era where legal certainty is more crucial than ever, the role of the courts in shaping regulatory landscapes should not be underestimated, despite this judicial standstill. It can only be hoped that future courts have the courage to assert Loper Bright and break free from deference to DHS and USCIS—an issue that will undoubtedly shape the future of the EB-5 program for years to come.
[1] https://www.kktplaw.com/our-attorneys/john-patrick-pratt-esq-/