USCIS to Unveil EB-5 Regulations in November
The U.S. Citizenship and Immigration Services (USCIS) is set to announce new regulations related to the EB-5 visa program in November, aiming to provide clarity on the duration investors must maintain their investments to qualify for green cards. The EB-5 program allows foreign investors to apply for permanent resident status by investing in U.S. commercial enterprises and creating or preserving at least ten full-time jobs for U.S. workers. The investment thresholds are currently set at $1,050,000, or $800,000 for projects located in Targeted Employment Areas.
Legal Developments on Investment Sustainment
A federal court recently weighed in on a legal dispute concerning the “sustainment period” for funds invested through the EB-5 program. This issue revolves around how long EB-5 investors can withdraw their funds while still remaining eligible for U.S. residency. The U.S. District Court for the District of Columbia decided not to intervene in the ongoing discussions regarding this sustainment period. It confirmed that formal regulations addressing the requirements of the EB-5 Reform and Integrity Act will be made available for public commentary by November 2025.
Understanding EB-5 Regulations Under INA and RIA
Upon entering the U.S. with an EB-5 visa, investors and their families receive conditional permanent residency for two years. The Immigration and Nationality Act (INA) governs this period of conditional residence. Recent changes brought about by the EB-5 Reform and Integrity Act of 2022 (RIA) have revised how long investors are required to keep their capital at risk to qualify for immigration benefits. The RIA, signed into law by President Biden, has updated investment maintenance requirements, effectively altering criteria for permanent residency.
USCIS Guidance on Investment Duration
According to guidance issued by USCIS, for an investor to qualify for EB-5 status, their investment must be anticipated to remain at risk for at least two years. Notably, investors are no longer required to maintain their investment throughout the entirety of their conditional residency period. However, for those who submitted Form I-526 petitions before the enactment of the RIA, the previous requirement to sustain their investment for the full two years still applies in order to transition to permanent resident status. The court highlighted that the two-year investment timeframe could begin at any point, even before the investor applies for a visa or receives USCIS approval.
Challenges to USCIS’s Interpretation of Investment Rules
The plaintiff in this case, Invest in the USA (IIUSA), represents regional centers participating in the EB-5 program and has expressed concerns that the new USCIS guidance effectively reduces the duration investors must maintain their investments. The court dismissed the challenge against USCIS’s interpretation of the sustainment period as premature, citing the absence of a finalized rule from the agency.
Upcoming Rulemaking Process for EB-5 Program
USCIS is currently engaged in drafting a comprehensive “EB-5 Notice of Proposed Rulemaking” to facilitate the implementation of the EB-5 Reform and Integrity Act of 2022. The agency has reiterated, including in its latest communication in July 2025, that it aims to publish the outcomes of this rulemaking process in November 2025. Typically, after thorough research, an agency will propose new regulations, known as a Notice of Proposed Rulemaking (NPRM), which are subsequently published in the Federal Register and made available to the public both in print and online.
