Court Maintains Current EB5 Investment Sustainment Period Pending USCIS Rulemaking

A federal district court ruled on 29.Jul.2025, that the current EB5 investment sustainment requirement will remain in place while the U.S. Citizenship and Immigration Services (USCIS) works on formal rulemaking to implement changes from the EB5 Reform and Integrity Act of 2022 (RIA). The decision means that EB5 investors must sustain their investments for two years, based on USCIS’s current interpretation of the law.

Changes Under the EB5 Reform and Integrity Act

The EB5 Reform and Integrity Act of 2022 made significant modifications to the EB5 immigrant investor program, including changes to how long investors must keep their funds invested. Under the previous law, investors were required to sustain their respective investment until two years after becoming conditional permanent residents. The RIA altered this framework by stating that an investment “is expected to remain invested for not less than 2 years,” removing the reference to the conditional residency period.

In 2023, the USCIS posted guidance on its website interpreting this new statutory language to establish a straightforward two-year investment period. This significantly reduced the amount of time EB5 funds were legally required to remain invested.

Industry Challenge and Legal Proceedings

Invest in the USA (IIUSA), a trade association representing EB5 regional centers and related entities, filed a lawsuit challenging USCIS’s interpretation. The organization argued that the agency’s guidance violated legal requirements by bypassing the formal rulemaking process and misinterpreted the statute’s requirements.

Court Decision Maintains Status Quo

The federal court declined to rule on the substantive legal issues, determining that the guidance on the USCIS website did not constitute final agency action. The court noted the USCIS had stated the formal rulemaking process had been initiated, and that a notice of proposed rulemaking would be published in November 2025. As a result, the current two-year investment sustainment period remains in effect as USCIS has interpreted it, rather than reverting to the previous system tied to when the EB5 investor obtains conditional permanent residency.

Practical Implications for Investors

While the RIA requirement remains at two years, most EB5 investors should be aware that regional center projects typically require longer investment periods. These extended timelines are based on contractual agreements between investors and regional centers, not immigration law requirements.

Investors should review their subscription agreements carefully and project documents to understand the specific terms governing their investment, as these contractual obligations generally extend beyond the minimum immigration law requirements.

Looking Ahead

With publication of the proposed USCIS rule expected in November 2025, the EB5 community will have an opportunity to provide formal comments on any proposed changes to investment sustainment requirements. The final rule will determine how the RIA’s language is implemented and whether the current two-year investment requirement will be modified. Once that happens, it is possible that a new round of litigation challenging the rule will commence.

Conclusion

For the foreseeable future, the court’s decision provides certainty to EB5 investors regarding the minimum investment period required under the RIA. We will have to wait and see what changes, if any, may be proposed by the formal rule expected to be issued in November.

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