Fifth Employment Based category was created when the Immigration Act of 1990 ("IMMACT 90") amended the Immigration and Nationality Act ("INA") in 1990. Shortly after, Regional Centers started in 2003. However, during the mid-1990s many companies did not raise the full required invested capital or hire the required number of employees. USCIS wanted to stop the misuse of the EB-5 program. Thus, several lawsuits and amendment to the legislation followed. In 1998, four decisions were issued to serve as precedents to the future EB-5 programs: Matter of Soffici, 22 I & N Dec. 158; Matter of Izumii, 22 I & N Dec. 169; Matter of Hsiung, 22 I & N Dec. 201; Matter of Ho, 22 I & N Dec. 206.

Initially the government agency wanted to implement these rulings retrospectively to the previous EB-5 participants, but in May 2001, the Federal District Court in Chang v. United States ruled that the applying new standards of adjudication retroactively in connection with approved EB-5 petitions is improper. Furthermore, in 2003, the Ninth Circuit Court of Appeals issued its opinion on Chang v. United States, also finding that the retroactive application of the 1998 precedent decision was improper.