EB-5 Sustainment Period: What It Is and Why It’s Now in Court

EB-5 investors and their advisors have lived with a central uncertainty since 2022: for exactly how long does invested capital need to remain deployed for an investor to preserve the right to a permanent Green Card? The question may sound technical, but it defines the financial timeline of every deal — when capital can be returned, when investors can recycle funds, and when a regional center can wind down a project. The IIUSA v. DHS lawsuit brought that dispute before the federal courts and may redraw the rules of the game in upcoming program cycles.

EB-5 Before and After the RIA

The EB-5 Reform and Integrity Act of 2022 (RIA), enacted in March 2022 as part of an omnibus spending bill, reauthorized the regional center program and introduced sweeping structural changes: new set-aside categories (rural, high-unemployment, infrastructure), new integrity requirements, a new audit regime, and — most relevant here — a redefinition of what it means to sustain the investment.

Before the RIA, the long-standing regulatory framework, codified at 8 CFR 216.6, required investors to continuously maintain their capital throughout the two-year conditional residency period. That had been the settled understanding for more than three decades: capital stayed deployed during the conditional Green Card period and could be returned only after the conditions were removed (Form I-829 approval).

USCIS’s New Interpretation

In October 2023, USCIS published a Questions and Answers (Q&A) page on its official website reinterpreting the sustainment requirement under the RIA. The agency’s new position is that the RIA shortened the sustainment period to two years measured from the date capital was actually deployed into the New Commercial Enterprise (NCE), regardless of the investor’s conditional residency timeline.

In practice, this shift favors investors: many will complete their sustainment period before even receiving their conditional Green Card, particularly in cases with extended Visa Bulletin wait times. This enables faster exit structures and earlier capital returns.

The Procedural Problem

What Invest in the USA (IIUSA), the trade association representing regional centers, challenges in IIUSA v. DHS is not the substance of the new interpretation — which benefits the industry — but the process by which it was adopted. IIUSA argues that USCIS cannot change a rule of this magnitude simply by posting a Q&A on its website. The Administrative Procedure Act (APA) requires notice-and-comment rulemaking for substantive rules — publication in the Federal Register, a public comment period, and formal adoption.

Without that process, the new interpretation lacks full regulatory force and remains vulnerable to administrative reversal in any subsequent cycle. Counterintuitively, IIUSA is seeking to compel USCIS to formalize the rule through the regulatory process — which would give the new interpretation lasting legal stability.

Pending Regulatory Tension

USCIS has not yet updated the EB-5 Policy Manual (Volume 6, Part G) to reflect the Q&A interpretation. That gap creates three risk zones for investors and regional centers:

• Reversal risk — a future administration could rescind the Q&A without going through notice-and-comment, leaving investors who already recycled capital exposed.
• Conflict with 8 CFR 216.6 — the old regulation remains on the books, and USCIS officers may apply either interpretation depending on the adjudicating unit.
• Contractual uncertainty — limited partnership agreements and operating agreements for regional centers must decide which reference governs.

What This Means for Investors in 2026

For anyone at any stage of the EB-5 process — pending I-526E petition, conditional Green Card issued, or I-829 under review — the practical picture is as follows:

• USCIS’s current interpretation points to a sustainment period of two years from the date capital was deployed into the NCE.
• That interpretation has not yet been codified in formal regulations or the Policy Manual.
• The IIUSA v. DHS litigation seeks to lock in the rule through the regulatory process, which would benefit overall program stability.
• Exit structures and capital return timelines should be drafted with contingency clauses covering both scenarios — Q&A upheld or reversed.

The Role of the Policy Manual

The USCIS Policy Manual carries binding internal authority over adjudication officers and serves as the primary reference in decisions. The absence of a Policy Manual update since the 2023 Q&A was published supports IIUSA’s core argument: the agency’s official position is fragmented between an informal webpage and unrepealed legacy regulations.

Implications for Structuring New Investments

Investors entering the EB-5 program in 2026 should negotiate contracts with regional centers that address three critical clauses:

• Contractual definition of the sustainment period — which interpretation governs and what happens in the event of a regulatory reversal.
• Exit mechanisms and return timing — trigger dates tied to I-829 approval or to the two-year mark from capital deployment, whichever occurs later (conservative clause) or first (optimistic clause).
• Regulatory risk clauses — allocation of responsibility between investor and regional center if USCIS reverses its interpretation or a court ruling changes the landscape.

Expected Outlook

Regardless of the outcome of IIUSA v. DHS, the regulatory trend points toward codifying the shorter sustainment period through either a Policy Manual update or formal rulemaking in upcoming cycles. The EB-5 program reauthorized by the RIA has an authorization horizon through September 30, 2027, and Congress has historically made improvements and adjustments in windows close to each reauthorization — the definition of the sustainment period is one of the central items on that agenda.

For investors already positioned in the program, the practical takeaway is to maintain thorough documentation of capital deployment timing, track the litigation outcome with qualified legal counsel, and avoid premature exit moves before formal regulatory consolidation.

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.