U.S. Court Upholds USCIS Guidance on EB-5 Sustainment Period: What It Means for Investors
Good news for EB-5 investors: A recent federal court ruling has upheld USCIS’s 2023 guidance on the EB-5 investment “sustainment period,” marking an important development for the EB-5 community.
While the decision may not offer absolute clarity, it reinforces the direction USCIS is heading—and confirms that formal rulemaking is underway.
Background: The Controversy Over “Date of Investment”
The case stems from USCIS’s 2023 guidance requiring EB-5 capital to remain at risk for at least two years from the “date of investment.” However, that phrase created confusion. Did it refer to:
- The date funds are released to the New Commercial Enterprise (NCE)?
- The date the NCE transfers funds to the Job-Creating Entity (JCE)?
- The date the JCE deploys the capital into job-creating activities?
Industry group Invest In the USA (IIUSA), known for its support of Regional Centers, challenged the guidance in court. They argued that USCIS had bypassed proper rulemaking procedures, creating uncertainty for investors and stakeholders.
In July 2025, the U.S. federal court ruled that USCIS’s guidance does not yet constitute a final agency action. As such, it cannot be legally challenged as a binding rule—at least not until the rulemaking process is complete.
The Court’s Ruling
The court acknowledged that USCIS has already begun formal rulemaking to implement the EB-5 Reform and Integrity Act of 2022 (RIA). According to the ruling, USCIS confirmed plans to publish a Notice of Proposed Rulemaking (NPRM) in November 2025, giving stakeholders the opportunity to provide feedback before any final rule takes effect.
What This Means for Investors
For Current EB-5 Investors:
The USCIS guidance issued in 2023 suggests a two-year minimum sustainment period, starting from the “date of investment.” However, until it becomes final through formal rulemaking, there is still some ambiguity.
What matters most right now is your project’s investment term, including its:
- Exit strategy
- Capital maturity timeline
- Redeployment plan (if applicable)
Make sure you understand how your specific EB-5 project interprets and applies the current guidance.
For Prospective Investors:
If you’re considering an EB-5 investment, this ruling highlights the importance of working with experienced, trustworthy partners. The regulatory landscape is evolving, and project structures must be flexible enough to adapt to forthcoming changes.
We recommend focusing on transparent, conservative EB-5 projects with clear timelines, robust compliance, and investor protections.
What’s Next
The Notice of Proposed Rulemaking in November 2025 is expected to:
- Clarify the definition of the EB-5 “investment period”
- Establish formal sustainment period guidelines
- Allow public comment before becoming final
We will closely monitor the process and keep our investors and partners informed every step of the way.
Final Thoughts
While the court’s ruling does not immediately alter USCIS’s guidance, it affirms that the agency is on the path to creating a formal, transparent regulatory framework. This is a positive development for the long-term credibility and predictability of the EB-5 program. If you have questions about how this ruling may affect your investment strategy, our team is here to help.