The May 2026 USCIS memo (PM-602-0199) is already drawing legal challenges, and for an EB-5 investor whose case is stuck, EB-5 mandamus remains a tool. The most important move right now is to avoid rash decisions.
The memo changed the agency’s discretionary posture, not the statute, and that gap is the basis for much of the litigation interest. For what the memo did and why EB-5 stands apart, start with our overview of how the memo affects EB-5 adjustment.
The grounds for challenge
Attorneys and advocacy groups have pointed to several lines of attack. They argue that the policy lacks statutory authority, that it reinterprets congressional intent without a basis in the law, that a substantive change like this required notice-and-comment rulemaking under the Administrative Procedure Act, and that applying it to cases already on file raises retroactivity concerns. The American Immigration Lawyers Association has argued publicly that Congress built the in-country adjustment framework deliberately, to keep families together and let employers retain workers through long visa backlogs.
When EB-5 mandamus is the right tool
EB-5 mandamus is separate from the litigation over the memo itself. Where USCIS holds a case beyond reasonable timeframes, a writ of mandamus asks a federal court to compel a decision. It is a remedy for unreasonable delay, handled with counsel, and it does not ask the court to grant the benefit, only to act on the case. Our coverage of EB-5 mandamus actions explains how it has worked for investors facing long processing times. It pairs with a strong file, which strengthening a concurrent EB-5 I-485 covers, built on the concurrent filing rules and, where a status gap exists, Section 245(k) forgiveness.
Litigation versus your individual case
A broad challenge to the memo is a different thing from the path of your own case. Most investors are better served by a strong, well-documented file and, if needed, a delay remedy than by pinning plans on a court ruling that may take time. If you are on a work visa, dual intent and footnote 20 covers how the memo treats your status, and the H-1B to EB-5 guide covers the entry path.
What not to do
The guidance that matters most while this develops is about restraint. Do not leave the United States, withdraw a pending I-485, or stop working based on a headline. Those steps can forfeit a position the statute still protects.
Working with counsel while the policy is contested
The right next step is a conversation with your immigration attorney about your specific facts. Our team includes a former adjudicator from the USCIS Immigrant Investor Program Office, so we know which delays a court is likely to view as unreasonable. If timeline is the real worry, EB-5 and the EB-2 backlog explains why EB-5 still reaches the finish line sooner. See how to invest in EB-5 for the structure side, and reach out to our team with questions about how Behring Regional Center supports investors through processing.
This article is general information about a developing area of law. It is not legal advice and does not create an attorney-client relationship. EB-5 investments are securities and involve risk, including the risk of loss. Consult qualified immigration counsel before acting.