A U.S. District Court in Washington, D.C., has dismissed a lawsuit filed by foreign nationals against the U.S. Citizenship and Immigration Services (USCIS) regarding delays in processing their EB-5 investor visa petitions. The court ruled it lacked jurisdiction to compel the agency to act on the petitions, which have been pending for over 35 months. This decision affects individuals seeking to immigrate to the United States through the EB-5 program, which allows foreign investors to obtain permanent residency by investing in U.S. businesses.
The plaintiffs in this case, Kshitiz Gupta and five others, filed their petitions in 2023, hoping to gain lawful permanent resident status through the EB-5 program. They alleged that the USCIS's failure to process their petitions constituted an unreasonable delay, prompting them to seek legal action. The dismissal of their case highlights the challenges faced by many foreign nationals navigating the U.S. immigration system.
The EB-5 visa program, established under the Immigration and Nationality Act (INA), allows foreign investors to obtain visas by investing in new commercial enterprises that create jobs in the United States. Each plaintiff in this case invested $800,000 into a qualifying business and filed their Form I-526E petitions between January and December 2023. However, as of January 2026, USCIS had not processed their applications, leading to their lawsuit filed on January 14, 2026.
In their lawsuit, the plaintiffs sought to compel USCIS to adjudicate their petitions under the Administrative Procedure Act and the Mandamus Act. However, the defendants, led by Secretary of Homeland Security Markwayne Mullin, moved to dismiss the case, arguing that the court lacked subject matter jurisdiction over the claims. They cited a provision in the INA that limits judicial review of actions taken by the Secretary of Homeland Security.
Judge Amit P. Mehta presided over the case and ultimately agreed with the defendants' argument. The court ruled that the INA's jurisdictional bar, specifically 8 U.S.C. § 1252(a)(2)(B)(ii), precluded the court from reviewing the manner and order in which USCIS processes EB-5 petitions. The court noted that this provision prevents judicial review of decisions or actions that fall within the Secretary's discretion.
The court stated, "the INA states that 'no court shall have jurisdiction to review... any other decision or action of... the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of... the Secretary of Homeland Security.'"
In reaching its decision, the court highlighted the discretionary nature of the Secretary's authority to process petitions. The court found that the Secretary's choice regarding the order in which to process petitions is a decision that falls under the jurisdictional bar of the INA. The court also noted that while the plaintiffs expressed frustration over the delays, their claims were ultimately about the manner and order of processing, which the INA explicitly protects from judicial review.
The ruling has significant implications for foreign nationals seeking to immigrate through the EB-5 program. It underscores the limitations of judicial oversight in immigration matters, particularly regarding the processing of visa applications. The decision may discourage similar lawsuits from other applicants facing delays in their immigration petitions, as the court's ruling sets a precedent for how such cases may be handled in the future.
Moving forward, the plaintiffs have limited options for recourse. They may not be able to appeal this ruling due to the jurisdictional bar established by the INA. However, they could potentially seek other avenues within the immigration system or pursue legislative changes to address the processing delays they and others are experiencing.
This case, Gupta v. Noem, Civil Action No. 2026-0114, serves as a reminder of the complexities of the U.S. immigration system and the challenges faced by those seeking to navigate it. As the legal landscape continues to evolve, the experiences of these plaintiffs may resonate with many others in similar situations.
