The EB-5 community will have to wait until the United States Citizenship and Immigration Services (USCIS) issues a Notice of Proposed Rulemaking to implement the EB-5 Reform and Integrity Act of 2022 (RIA) before a final decision is made regarding the legal dispute between the agency and Invest in the USA (IIUSA) over the EB-5 program’s sustainment period.
IIUSA filed their claim in 2024, addressing the core issue of how long immigrant investors must keep their funds invested as part of their EB-5 application.
On July 29, the US District Court for the District of Columbia decided that it will not make a final determination until USCIS completes its rulemaking process and issues the Notice of Proposed Rulemaking over RIA in November 2025. This notice is a formal announcement to inform the public of its intention to implement the law and is a standard procedure under the Administrative Procedure Act (APA).
The court judge, Ana Reyes, argued that the notice could address IIUSA’s concerns about the sustainment period. Therefore, better to wait until USCIS outlines how it plans to interpret and apply the changes made by the RIA to make a final ruling, the court said.
EB-5 community reacts to court ruling
In a public statement, IIUSA President Bill Gresser expressed enthusiasm over the judge’s decision, saying, “IIUSA is excited to report its efforts have finally forced USCIS to represent to the Court that it will, in fact, properly seek notice and comment about this rule as well as all other matters to be regulated.”
EB-5 attorney Rakesh Patel also agrees with the court. “The process needs to play out and not be forced. This will at least temporarily stop confusing investors on the sustainment period.”
Immigration lawyer Tammy Fox-Isicoff notes that the decision is likely correct for the time being, as it provides USCIS time to engage in rulemaking. “The only problem is that projects and foreign nationals are left in a vacuum, not knowing how to proceed. This is the same thing USCIS did to us on redeployment. USCIS never belonged with this program, and they don’t belong with it now!”
Impact of 2-year sustainment claim on the EB-5 industry
The sustainment period refers to the time duration during which an EB-5 investor’s funds must remain “at risk” in a U.S. business to qualify for permanent residency. During this time, a minimum of 10 jobs for U.S. workers must be created.
USCIS says that this period is two years after the money is invested in the EB-5 project as per the RIA. However, IIUSA argues that this interpretation violates federal law and industry practices and harms current and future EB-5 deal-making. The association also requested that USCIS repeal the existing 2-year period and establish a 5-year alternative, claiming that this time period better aligns with the needs and interests of EB-5 investors and stakeholders like regional centers.
According to Gresser, the relevance of this case lies in the fact that it is “about ensuring that USCIS follows the law and doesn’t regulate the EB-5 program via website post.”
For EB-5 attorney Tony Wong, the issue about the two years is that it must align with adjudicating I-829 petitions and with job creation. “This is the most flexible and realistic way for both EB5 investors and regional centers and is consistent with the RIA.”
What to expect until the RIA rulemaking notice in November?
In the meantime, she ordered the parties to submit a joint status report in 90 days (October), with subsequent reports every 60 days thereafter, until further notice to keep the court informed of developments regarding the RIA rulemaking.
Wong is cautious about what to expect from this November notice. “The USCIS’s comprehensive notice will not concede to fix the sustainment period to more than two years, but maintain the interpretation of ‘not less than two years’.”
The court also denied IIUSA’s request for a full legal determination (summary judgment) and USCIS’s motion to dismiss the claim.
Attorneys have cautioned against the lack of a final resolution to this ongoing legal battle, as it undermines the legitimacy and certainty of the EB-5 program.
Additionally, since there is no final ruling yet, there’s still the possibility that the judge may eventually find the USCIS’s November rulemaking to be an inaccurate interpretation of the RIA regulation on the sustainment period, which could significantly impact EB-5 investments and the businesses they support.
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