Good news (CIS Ombudsman, Sustainment litigation, good faith investor litigation, FOIA on Security Checks)

CIS Ombudsman Restored

I had mourned in March when the Administration shut down the CIS Ombudsman, which exists to help resolve problems with USCIS and improve USCIS processes. The Ombudsman committed considerable effort in 2024 to researching and communicating with USCIS about EB-5 issues, and we couldn’t afford to lose them. I rejoiced when a reader brought to my attention that the office has been restored as of May. The Ombudsman website was updated on May 23, 2025 with the note: “The Office of the Citizenship and Immigration Services Ombudsman continues to exist and will perform its statutorily required functions.” I don’t know how many former Ombudsman staff can have returned from administrative leave, but at least the Request Case Assistance function is live again.

Sustainment Litigation

The litigation around the EB-5 sustainment period has reached a good milestone. Yesterday Judge Ana Reyes issued an Order in IUSA vs. DHS et al. that does not revert to the legacy sustainment requirement linked to Conditional Permanent Residence.

In the previous round of filings, Defendant DHS had asked the judge to hold the lawsuit in abeyance pending rulemaking, while Plaintiff IIUSA had asked the judge to vacate USCIS’s 2-year sustainment interpretation pending rulemaking. We waited with bated breath, wondering whether the judge was about to doom the industry to pre-RIA sustainment rules and/or confusion for as long as it takes to complete notice-and-comment rulemaking on RIA.

Thankfully, Judge Reyes did as DHS requested. She notes in the July 29 Order that the law did edit the sustainment requirement (“With the RIA, now immigrant investors’ investment ‘is expected to remain invested for not less than 2 years.'”), that the USCIS guidance on this change is “not (yet) final agency action,” and that a formal rule-making process is forthcoming with a Notice of Proposed Rulemaking slated to be published in November 2025. The NPRM will be followed by a notice-and-comment period, which will eventually be followed by a Final Rule. And after that, if the Final Rule does not address the Plaintiff’s concerns, then “the parties and Court can take up the final rule as necessary.”

I’m particularly happy to see the IIUSA press release celebrating this ruling as a win for IIUSA, which it is. Pushing USCIS to formal rulemaking is the one laudable goal of the IIUSA litigation, and IIUSA is so right to shift its weight to that solid point. The benefits extend beyond the sustainment issue, as we’re overdue for rulemaking to clarify and implement many aspects of RIA. I’m thankful that we finally get a deadline for this proper formal process to start. Some individual regional centers may want to continue to pursue other litigation arguments. But if any want to press the toxic contention that RIA intended to codify the pre-RIA sustainment requirement, let them come out and do so under their own names. With another Regional Center sunset looming, IIUSA needs high ground and a unifying role.

The rulemaking process may be lengthy. The last EB-5 regulation started with an NPRM and notice and comment in 2017, and resulted in a Final Rule in 2019 that was promptly challenged and ultimately vacated by litigation in 2021. I won’t be surprised if we get a new EB-5 law in 2027 before we get a chance to see any final result from the rulemaking process set to start with an NPRM in November 2025. I don’t know what sustainment period nuances will ultimately be defined by a final rule or rewritten in new law.  But in the interim, I’m glad that the status quo is the USCIS website guidance on RIA’s 2-year minimum sustainment period, not a complete lack of guidance or the horrors of CPR sustainment.

Good Faith Investor Protections

Subsection (M) “Treatment of Good Faith Investors Following Program Noncompliance” is another positive part of the EB-5 Reform and Integrity Act that needs implementing. Subsection (M) offers some opportunity for blameless investors in troubled regional centers and projects to salvage their immigration process by changing affiliation or moving investment. I wrote about this last year in the article What happens to investors after regional center termination. But the Subsection (M) provisions are confusing and investors have faced difficulty in claiming protections – partly due to USCIS delay in terminating non-compliant regional centers. Now litigation is getting involved, with Galati Law leading the way. See the articles EB-5 Investors Sue USCIS Chief for Failing to Protect their Good Faith Investments as Required by Law and The Fight to Protect Good Faith EB-5 Investors.

FOIA on National Security Checks

I should also note tireless efforts by John Pratt and Ed Ramos to litigate for EB-5 integrity. They recently assisted AIIA to obtain a trove of FOIA documents from USCIS on how the Investor Program Office screens EB-5 petitioners for national security risks, including extreme vetting of Chinese nationals. For a summary of insights from the FOIA response see the article AIIA FOIA Series: Hidden USCIS Adjudication Standards – National Security Checks.