EB-5 Sustainment Period: The RIA Dispute in Court

The EB-5 program has been caught in a decisive regulatory dispute since the passage of the EB-5 Reform and Integrity Act of 2022 (RIA), and the central issue looks straightforward on the surface but is complicated in the details: for exactly how long must the immigrant investor keep capital at risk to sustain the I-526E petition, conditional residence, and—later—the permanent green card through I-829? The IIUSA v. DHS lawsuit, pending in U.S. federal court, challenges how USCIS interpreted this sustainment period and may reshape how qualified projects structure their capital return timelines for investors.

What Is at Stake

In October 2023, USCIS published a Q&A page on the RIA in which it stated that the investor would need to keep invested capital for two years from the disbursement to the new commercial enterprise, known as the NCE. This interpretation replaced the traditional reading, based on 8 C.F.R. 216.6, under which sustainment occurs over the two-year conditional residency period—that is, counted from the date of entry into the United States with a conditional green card.

IIUSA, the leading regional center trade association, filed suit arguing that this new position amounts to a substantive rule and therefore should have gone through the formal notice-and-comment process required by the Administrative Procedure Act (APA). According to the plaintiffs, USCIS bypassed proper regulatory procedure by publishing guidance with enormous practical effects on a simple FAQ page.

Why the Timeline Matters So Much

The difference between the two interpretations appears small but carries enormous consequences. Under the USCIS reading, the clock starts when capital reaches the NCE, even if the investor is still awaiting I-526E approval and a consulate to issue the EB-5 visa. Under the historical reading, the clock does not start until the investor arrives in the United States with conditional residence.

In practice, the USCIS rule shortens the investor’s financial cycle. Many projects may return capital before the investor even obtains a visa—in some cases before the conditional green card is issued. For regional centers and developers, this changes the project’s exit structure, the timing of economic returns, and the capital-raising curve. For the investor, it opens a more predictable window for capital recycling but raises compliance questions when the I-829 is filed years later.

How the RIA Addressed the Issue

The EB-5 Reform and Integrity Act of 2022 rewrote central pillars of the program. Among the changes, it established set-asides for rural areas, infrastructure, and high-unemployment areas, created a new oversight regime for regional centers, redefined the standards for Targeted Employment Areas (TEA), and required greater financial transparency from NCEs.

The RIA also changed the sustainment language. The law provides that the investment must be expected to remain invested for not less than 2 years. This ambiguous wording is precisely the gap that USCIS exploited when publishing its October 2023 FAQ. For IIUSA and a significant portion of practitioners in the field, that language does not nullify the historical regulation tying sustainment to the conditional residency period.

Where the Case May Go

The lawsuit seeks a court order compelling USCIS to undergo formal rulemaking before applying the new interpretation. There are three possible outcomes:

• The court may vacate the guidance and require notice-and-comment, returning the issue to its prior status while USCIS opens a regulatory proceeding.
• The court may uphold the guidance as a reasonable interpretation of the statute, cementing the two-year period counted from disbursement to the NCE.
• The case may end in a settlement in which USCIS agrees to publish its position through an updated Policy Manual, with a defined timeline and a transitional window.

As of the publication date, USCIS has yet to update Volume 6, Part G of the Policy Manual to reflect the position disclosed in the FAQ, which reinforces IIUSA’s argument that the position does not carry full regulatory force.

What Investors Should Watch

Investors in the fundraising phase or with a pending I-526E need to monitor the case for three practical reasons.

• Project document structure: NCE subscription agreements and operating agreements have been drafted with clauses that attempt to accommodate both interpretations. It is essential that the offering document specify the redeployment trigger, the minimum capital hold period, and the conditions for early return.
• Risk of a denied I-829: if the investor relies on the USCIS reading and capital leaves the NCE before conditional residence is established, and the interpretation later changes judicially, the I-829 may be challenged. At-risk documentation must cover the worst-case interpretive scenario.
• Capital redeployment: even when capital is returned on the project’s schedule, the investor may need to reallocate to a compliant project to preserve status. Redeployment rules remain complex and were not directly at issue in the lawsuit, but their design depends on which reading of the timeline prevails.

The EB-5 Macro Picture in 2026

Even with the dispute unresolved, EB-5 remains one of the most widely used pathways for high-net-worth foreign investors to obtain a green card. The I-526E filing fee is $11,160, per the USCIS fee schedule in effect since April 2024. The minimum investment remains $1,050,000 for standard projects and $800,000 for Targeted Employment Areas, with annual visa set-asides of 20% for rural areas, 10% for high-unemployment areas, and 2% for infrastructure projects.

The availability of rural and high-unemployment set-asides continues to be the RIA’s main draw, with more favorable wait times compared to the unreserved category—especially for nationalities facing backlogs. The 2026 Visa Bulletin keeps all three set-aside categories current for most countries, although demand pressure is beginning to appear in the rural category.

For those evaluating entry into the program, the practical recommendation is straightforward: read the project’s legal memorandum carefully, ask that the materials explicitly address the treatment of the sustainment period under both interpretations, and require the NCE to contractually commit to maintaining compliance if a court changes USCIS’s current position.

Victoria Harper

Editor-in-Chief

Meet the author

Leading journalism and editorial content at Visto n’ Visa, Victoria helps make immigration topics clear, trustworthy, and easy to understand. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.