Divisive Storm Brewing Over IIUSA EB-5 Lawsuit

Mona Shah, Esq.
New York City

The US EB-5 industry is currently witnessing an unprecedented rift, ignited by the ongoing lawsuit Invest in the USA (IIUSA) v. United States Department of Homeland Security, presided over by Federal Judge Ana C. Reyes.

This litigation, filed by IIUSA—the industry’s foremost trade association representing regional centers, EB-5 lawyers, and other service providers—has stirred considerable tensions, revealing significant fractures among stakeholders within the EB-5 ecosystem.

Capital redeployment in EB-5 remains one of the industry’s most critical topics. Projects across the US hold an estimated $15 billion in pre-2022 investments, and $6.125 billion from 2022-2024 faces potential redeployment.

Understanding the Lawsuit and the Core Issues at Stake

At its essence, the lawsuit challenges the guidance issued by the United States Citizenship and Immigration Services (USCIS) surrounding the sustainment of capital investments.

Sustainment requires EB-5 capital to remain “at risk” for a specified period, primarily until the investor files the I-829 petition for removal of conditions.

Redeployment occurs when investors move their capital into new projects after the original project completes its job creation requirements. Advocates of the lawsuit argue that USCIS regulations restrict regional centers’ ability to manage capital efficiently.

Opponents, especially the American Immigrant Investor Alliance (AIIA), maintain that the lawsuit undermines investor protections established by the EB-5 Reform and Integrity Act of 2022 (RIA).

AIIA leaders fear that giving regional centers broad authority over redeployed funds risks reviving practices of extended capital retention without accountability.

What was intended as a practice to stimulate the US economy became contentious, especially in the wake of long visa delays for certain countries (India and China) and unforeseen incidents like COVID-19—which saw many businesses failing. 

That is—until the turning point: The EB-5 Reform and Integrity Act of 2022 (also termed RIA)

The RIA significantly shifted this unhappy situation as it specified that investors would only need to sustain their investment for a minimum of two years.

This surprised many within the industry, as the previous sustainment period was connected to the investor’s conditional residency, which typically exceeded two years from the time of investment.

USCIS further clarified the two-year period in an October 2023 meeting, confirming that the two-year clock for post-RIA investors would begin when the investor contributes the total investment amount to the New Commercial Enterprise (NCE) and deploys the funds into the job-creating entity (JCE).

However, as regional centers and developers began to comprehend the implications of this two-year capital return window, they started to dispute USCIS’s interpretation of the law.

This growing tension culminated in IIUSA filing a lawsuit against USCIS on March 29, 2024, angering pro-investor groups who felt that the lawsuit could jeopardize the hard-won protections afforded by the new legislation.

The Hearing on January 28, 2025

On January 28, 2025, Judge Ana C. Reyes of the US District Court for the District of Columbia presided over a preliminary hearing concerning the motions for dismissal and summary judgment in the case.

Legal teams represented both IIUSA and USCIS (the latter being part of the Department of Homeland Security or DHS), while representatives from the American Immigrant Investor Alliance (AIIA) attended the hearing in person

Regrettably, the DHS attorney appeared unprepared and struggled to adequately respond to questions posed by the judge, including those previously addressed in the briefs submitted by both the DHS and AIIA. As a result, the judge seemed unconvinced by DHS’s assertion that the RIA clearly delineates a two-year sustainment period for investments commencing from the date of the capital infusion.

By the conclusion of the hearing, Judge Reyes directed both parties to meet and collaborate on a Joint Status Report (JSR), and possible settlement. If the parties are unable to reach a settlement by February 27, 2025, Judge Reyes indicated that she would rule in favor of IIUSA.

The Growing Tension within the EB-5 Industry

As scrutiny mounts around this lawsuit, the divides within the EB-5 community have become starkly visible.

On one side are those aligned with IIUSA’s position, asserting that the lawsuit is essential to protect regional centers’ (and investors’) interests, as one cannot expect projects to return capital in two years.

On the opposing front stands the American Immigrant Investor Alliance (AIIA), vocal in its criticism of the lawsuit and its potential repercussions.

AIIA argues that the lawsuit benefits a select few within IIUSA who wield disproportionate influence over the association’s agenda.

They warn that if IIUSA prevails and there is no settlement, we may find ourselves backsliding into a bygone era where regional centers were permitted to retain investors’ funds for extended periods, often reinvesting them at their discretion without clear accountability.

Several blog writers have articulated the dismay many within the industry feel, emphasizing that the current litigation could hinder the progress made under the recent RIA.

This legislation redefined the landscape for EB-5 investments, allowing for the return of investor capital after two years—a critical change that IIUSA’s lawsuit contests.

Many writers have advocated for clarity in redeployment for many years, emphasizing that there is no mandate requiring investor capital to remain at risk post-job creation—a viewpoint that aligns with the intent of the RIA.

Statements from AIIA and IIUSA give insight into the spectrum of opinions within the industry.

AIIA representatives are steadfast in their belief that the current litigation misrepresents the collective interests of EB-5 stakeholders. Their website notes that “the requirements proposed in this lawsuit could impose excessive and unnecessary risks on both developers and investors.”

Blog writer Suzanne Lazicki echoes this sentiment, cautioning against endorsing a lawsuit heavily influenced by a small group of regional centers that dominate IIUSA’s leadership.

She and many industry insiders concur that “the IIUSA lawsuit means a lawsuit promoted by a few members under IIUSA’s name and opposed by many other members.”

A Divided Industry Needs Unity

The IIUSA lawsuit has unveiled significant tensions within the EB-5 community, pitting established regional centers against advocates for reform and clarity.

As the legal battle unfolds, the implications will reverberate throughout the industry, affecting not just the regional centers but the investors they seek to serve.

The stakes are high, bringing potential ramifications for compliance, transparency, and investor confidence—key pillars of a thriving EB-5 environment.

Many hope the parties reach a healthy settlement, allowing the EB-5 to navigate these turbulent waters toward a more sustainable and investor-friendly future.

Otherwise, the continued soundness of the EB-5 program is in jeopardy.