USCIS will announce EB-5 rules in November that will help investors to know how much time they need to keep their investments in the investor-program and yet qualify for green cards.
Under the EB-5 visa program, investors are eligible to apply for lawful permanent residence and become a Green Card holder if they make the necessary investment in a commercial enterprise in the United States and create or preserve 10 permanent full-time jobs for qualified U.S. workers.
The minimum capital required under the EB-5 visa program is $1,050,000 while for Targeted Employment Area it is $8,00,000.
A federal court issued an order in a case related to the ‘sustainment period’ for funds invested through the EB-5 visa program.
The contentious issue was regarding the period after which EB-5 investors can pull back their investments and yet be eligible for the US green card. The case was being heard in the court, the outcome of which would have impacted EB-5 investors looking to settle permanently in America.
The latest update is that the U.S. District Court for the District of Columbia declined to intervene in the ongoing EB-5 investment ‘sustainment dispute’. It further, confirmed that formal regulations clarifying the EB-5 Reform and Integrity Act’s requirements will be published for public comment by November 2025.
EB-5 Capital under INA and RIA
Upon admission into the United States with an EB-5 immigrant visa, USCIS provides a conditional permanent residence to the EB-5 investor and family members for a two-year period. This means the Immigration and Nationality Act (INA) sets the period about an investor’s period of conditional residence.
The EB-5 Reform and Integrity Act of 2022 (RIA) altered the INA’s language regarding how long investors under the EB-5 Immigrant Investor Program (EB-5 Program) must keep their money at risk to be eligible for an immigrant visa.
President Biden signed the EB-5 Reform and Integrity Act of 2022 (RIA), modifying investment maintenance requirements and removing conditions on an investor’s lawful permanent resident status.
Defendant United States Citizenship and Immigration Services (USCIS) issued guidance interpreting the new statutory language. According to USCIS, to be eligible for EB-5 classification, the investment must be “expected to remain invested for not less than 2 years and investors no longer needed to sustain their investment throughout their period of conditional residence.
However, investors who filed Form I-526 petitions before the RIA became effective must sustain their investment throughout the 2 years of their conditional residence to be eligible for removal of conditions on their permanent resident status.
According to USCIS, the RIA removed the conditional residency requirement and instead imposed a two-year investment period. Critically, those two years could pass at any time—even before the immigrant investor applies for a visa or USCIS approves the immigrant investor for the program, the court noted.
Plaintiff, Invest in the USA (IIUSA), is a trade association for the EB-5 Regional Center Program whose members raise foreign investment capital and develop projects across the country. Plaintiff objects to the new guidance by USCIS, which it contends effectively shortens the amount of time immigrant investors must keep funds invested as part of the EB-5 Program.
EB-5 Notice of Proposed Rulemaking
The court has dismissed the challenge to the interpretation of the sustainment period guidance as premature, citing the lack of a final rule from USCIS.
USCIS has begun work on a comprehensive ‘EB-5 Notice of Proposed Rulemaking’ to implement the EB-5 Reform and Integrity Act of 2022.
USCIS has confirmed twice, including most recently in July 2025, that it plans to publish the results of this process in November 2025.
After an agency researches the issues and determines whether a new Rule is necessary, it often proposes a regulation, also known as a Notice of Proposed Rulemaking (NPRM). Typically, these proposals are published in the Federal Register (FR) and made publicly available in print and on-line so that they are readily accessible to the public.