By Marko Issever
The central question in the EB-5 landscape concerns the mandate of the United States Citizenship and Immigration Services (USCIS) and the agency’s perception of such, which subtly impacts investor outcomes.
Congress writes the law. Agencies implement it. But in the space between those two functions, something more complex takes shape: interpretation, discretion, and, at times, divergence.
In the EB-5 visa program, that divergence no longer sits only between statute and regulation. It now appears more clearly, and with greater consequence, at the intersection of law and adjudication itself.
Tug-of-war between law and intent in U.S. immigration investment
In theory, it’s simple. Congress enacts the statute, primarily through the Immigration and Nationality Act and, more recently, the Reform and Integrity Act of 2022 (RIA).
USCIS interprets that statute through regulations and policy guidance. Adjudicators apply those rules to individual cases. Within this framework, the agency bears a dual responsibility: to apply the letter of the law and to advance its intent.
Most of the time, those two move together. But EB-5 is not like most other U.S. visa programs. The statutory language is often broad, and it appears that Congress has deliberately left room for interpretation. That is where things begin to shift.
When the wording of the law and its intended purpose conflict, which should be followed?
The debate over capital return illustrates this tension clearly.
Subject to the terms of the investment, the RIA allows capital repayment after two years of use by the job-creating entity (JCE). USCIS adopted that position in its regulations.
However, major industry stakeholders, including Invest in the USA (IIUSA), which represents a select group of established Regional Centers, strongly disagree. They argue that Congress did not intend capital to return so quickly and that a longer period, often framed as five years, better protects the program’s integrity.
A disconnect between the intended regulatory framework and the actual implementation
| Issue | Statutory / Regulatory Signal | Observed Adjudication Trend | What Is Being Enforced? |
| Partial Investment at Filing | Capital may be “in the process of being invested” | RFEs/NOIDs if full capital is not deployed by adjudication | Neither the letter nor the spirit is clear; a de facto full-funding requirement |
| RC-Affiliated Loan Structures | Loans are permissible if lawfully sourced | Heightened scrutiny, especially on unsecured or affiliated loans | Spirit of the law (ensuring real capital at risk), but without an explicit statutory basis |
| Source of Funds Standard | “Preponderance of the evidence” (more likely than not) | Near forensic documentation expectations | Neither; the evidentiary burden appears elevated beyond the statutory standard. |
| I-526E vs. I-829 Outcomes | Two-stage process with continuity | Increased I-829 denials after prior approvals | Inconsistent application; shifting standards between stages |
| Sustainment Period | More clearly defined post-RIA | Conservative interpretation of timing and repayment | Closer alignment with both letter and spirit, though still contested |
Navigating the discrepancies between EB-5 regulatory intent and USCIS interpretation
Partial Investment: When a Process Becomes a Requirement
The statute allows EB-5 investors to be in the process of investing, reflecting how projects function in practice, with capital deployed in stages. Job creation happens over time.
In practice, timing has taken on a very different meaning.
If investors do not complete the full investment by the time adjudication begins, requests for evidence and denials have become increasingly common. Industry analysis, including commentary from leading EB-5 stakeholders, highlights this shift toward requiring full deployment at or before adjudication review.
The statute treats it as a process; adjudication treats it as a completed requirement, an alignment with neither the letter nor the intent of the law, reflecting a preference for certainty over flexibility.
Loan structures: When form complies but substance does not
Regional Center-affiliated financial institutions help investors bridge funding gaps, but this raises concerns about immigration outcomes and financial interests. USCIS has denied loans from entities linked to regional centers because such arrangements may not bring new funds into projects, thereby defeating their goals. Attorneys believe bank loans are safer due to independent underwriting, whereas loans from regional centers often raise red flags about the investment’s legitimacy. These issues can lead to requests for evidence and denials of petitions. Although the mechanics may comply with the law, they conflict with the intent, which USCIS enforces despite unclear statutory prohibitions.
Source of funds: When the standard quietly changes
Investors must demonstrate, with clear evidence, that their funds are lawfully obtained to ensure that illicit funds are excluded from the program. However, the practical application of this standard has evolved significantly beyond its original intent.
Practitioners consistently report that USCIS expects detailed documentation across multiple years, jurisdictions, and transactions. Industry guidance now tells investors to treat the source of funds as the central component of the case and to prepare documentation that leaves little room for interpretation.
This level of scrutiny goes beyond what the statute requires and what the statute intended.
The law requires reasonable proof. The practice increasingly demands near-complete reconstruction, creating a new standard that exists in practice but not in statute.
The two-stage problem: I-526E and I-829
The EB-5 process should be a continuous flow, starting with the I-526E, which establishes eligibility, followed by the I-829, which confirms the investment and job creation. However, this continuity often breaks down, as issues accepted at the I-526E stage can resurface at the I-829 stage, resulting in new challenges or denials related to the source of funds.
Whether this is the result of evolving interpretations or a shift in posture, the effect is the same. Investors face uncertainty well into the process. There are litigated cases involving the same source of funds that were accepted as lawful at the I-526E stage, only to be reanalyzed and deemed unlawful, resulting in RFEs or denials at the I-829 stage.
Prominent immigration attorneys have cautioned that there appear to be far more I-829 denials in 2025 than ever before. An unfortunate trend is the issuance of I-829 denials based on a re-adjudication of the same source and path of funds that were approved many years earlier during the adjudication of the I-526 petition. He expects this re-adjudication to be ultimately challenged in federal court.
If USCIS revisits previously accepted issues without a clear and material basis, the process loses coherence. At that point, approval at the I-526E stage is a preliminary opinion.
Sustainment: one concept, two conversations
Sustainment has two key elements. Investors must maintain their conditional immigration status after their I-526E petition is approved and obtain a two-year conditional green card. They must hold this status for two years before applying for a ten-year permanent green card. The RIA has separated the capital return process from immigration, allowing investors to seek capital return before applying for permanent residency and job creation.
As noted above, USCIS interprets the statute to permit capital return after two years of use. Most investors agree with USCIS. They argue that extending the period imposes a requirement that does not exist in the law.
On the other hand, IIUSA and other industry stakeholders argue that the RIA supports a minimum five-year capital holding period, rather than a shorter two-year sustainment period. They contend that USCIS should have implemented this longer period through formal notice-and-comment rulemaking, rather than policy updates, as outlined in their formal petition for rulemaking, not a case of misapplication but a case of competing interpretations of intent built on the same statutory text.
That distinction matters.
A more realistic view of USCIS
USCIS acts not only as an adjudicator, but as a steward of the program as it understands it.
That perspective explains much of what we see.
Decisions reflect not only what the law allows, but also what the agency believes the program should achieve.
Some argue that stricter adjudication reflects an effort to slow immigration. That claim is difficult to prove. However, stricter documentation requirements, evolving interpretations, and more conservative adjudication create greater uncertainty. An uncertainty that now defines the investor experience.
The real gap
The EB-5 program functions on three levels: the law, regulatory interpretations, and adjudications. Alignment among these is essential; when they misalign, uncertainty arises. USCIS shapes outcomes based on its understanding of the program’s purpose, which can enhance oversight but creates a system with unclear rules. For investors committing significant capital over time, this uncertainty poses a major risk.
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