The Proposed EB-5 Rule: Sustainment of Capital At Risk

What Investors Need to Know

How long EB-5 funds must remain at risk is one of the most important considerations for investors.

Both the EB-5 Reform and Integrity Act of 2022 (RIA) and the July 2, 2026 Department of Homeland Security (DHS) Notice of Proposed Rulemaking (NPRM) titled, “EB-5 Reform and Integrity Act of 2022; Ensuring the Integrity of the EB-5 Program; Automatic Revocation of Petitions for Immigrant Classification” bring welcome news for post-RIA investors.

The simple answer is that the minimum sustainment period is now two years. Uncertainty remains, however, with respect to when this period begins. Final clarity on this point will not come unless and until the final rule incorporates stakeholder comments to resolve ambiguity and the ongoing litigation on this issue is concluded.

Background

Prior to the RIA’s enactment, EB-5 investors were required to sustain at risk their investment throughout the 2-year conditional residence period. Pre-RIA sec. 216A(d)(1)(A)(ii) of the INA.

USCIS interpreted this provision as requiring that investors’ capital remain invested in the new commercial enterprise (NCE) up to and through the entire conditional permanent residence period. This meant that an immigrant investor would have to remain invested in the NCE from their initial investment, through the visa or adjustment of status process, and all the way up to the adjudication of their Form I-829 petition to remove conditions.

Due to visa backlogs for Chinese and Indian nationals, this meant that regional centers often had to redeploy capital to maintain investor eligibility for permanent residence (green cards), and investors were agonizingly left to wait years for a return of their capital.

The RIA rectified this patently unfair outcome. Specifically, the RIA made three important changes regarding the sustainment rules:

The RIA removed the clause from the INA sec. 216A(d)(1)(A)(ii) that required the investment to be sustained through the conditional residence period.

The RIA revised INA section 203(b)(5)(A)(ii) to require that the investor must expect his or her capital to be invested and at risk for no less than two years.
The RIA required DHS to issue regulations governing redeployment of investment funds when necessary for an investor to maintain the capital at risk for a petition filed on or after the enactment of the RIA. INA sec. 203(b)(5)(F)(v).
The RIA did not explicitly state what particular actions must happen (contribution, placement at risk, etc.) for the 2-year period to begin.

In 2023, USCIS published an interpretation of this requirement, stating that the 2-year sustainment period starts on the date that the full amount of qualifying investment is contributed to the new commercial enterprise and placed at risk under applicable requirements, including being made available to the job-creating entity, as appropriate. USCIS, DHS, “EB-5 Questions and Answers,” https://www.uscis.gov/​working-in-the-united-states/​permanent-workers/​employment-based-immigration-fifth-preference-eb-5/​eb-5-questions-and-answers-updated-dec-2023#:~:text=​An%20investor%20filing%20an%20EB,creation%20requirements%20have%20been%20met (last updated July 16, 2024).

This interpretation has been carried through to the proposed rule. In the NPRM, the agency again states that the sustainment period begins when the full amount of the investor’s capital is placed with the job-creating entity (JCE).

Litigation Challenging USCIS’s Interpretation of the RIA Sustainment Provision

Shortly after USCIS updated its FAQs in October 2023, IIUSA, the regional center trade association, brought litigation challenging the agency’s interpretation of the sustainment requirement.

In this Administrative Procedure Act cause of action, IIUSA cited the requirement for notice and comment rulemaking and sought adoption of a five-year hold period as the sustainment requirement. See IIUSA Frequently Asked Questions: IIUSA Lawsuit Challenging USCIS APA Violations, https://iiusa.org/wp-content/uploads/2024/03/Sustainment-FAQs_FINAL-1.pdf.

In defending against this lawsuit, the government committed to undertake rulemaking to implement the RIA’s new provisions related to sustainment.

On July 29, 2025, the United States District Court for the District of Columbia issued a two-and-a-half-page order denying IIUSA’s Motion for Summary Judgment and Defendants’ Cross-Motion to Dismiss. The court found that “the forthcoming Notice [of Proposed Rulemaking] will moot Plaintiff’s claim that USCIS did not provide the necessary notice-and-comment period. And the final rule may well address Plaintiff’s other concerns. If it does not, the parties and Court can take up the final rule as necessary. If it does, all the better for everyone.”

Just shy of one year later, voilà, DHS/USCIS has issued the EB-5 program NPRM, which may never have happened or not happened for many more months or years, if not for this litigation.

What Changed in the NPRM on Sustainment?

The NPRM’s implementation of the RIA is the same as the agency’s interpretation posted in the EB-5 FAQs.

The proposed rule states:

An [individual] seeking classification as an [EB-5] investor must invest the required amount of capital…and expect to maintain that investment for at least two years from the time it was placed at risk in a new commercial enterprise in the United States. Proposed sec. 204.407.

The proposed rule’s provisions on removal of conditions on permanent resident status state that funds must:

[Remain] invested for at least two years from the date the investment was placed at risk in a new commercial enterprise, including being made available to the job-creating entity(ies) and redeployed in accordance with the requirements under § 204.426 of this chapter as applicable… (emphasis added). Proposed sec. 216.6(d)(2)(ii).

The NPRM preamble explains:

DHS believes these proposed changes best align with the plain language of the INA as amended by the RIA and would lessen the burden on the investor to keep his or her investment in place for an extended period due to circumstances beyond the investor’s or the new commercial enterprise’s control, such as visa backlogs…Additionally, DHS believes these proposed changes would provide the greatest level of flexibility for stakeholders to create investment strategies that work for them, rather than having to make continual adjustments based on unknown (and often changing) immigrant visa issuance timelines, and would further limit the need for new commercial enterprises to redeploy investor capital after sufficient jobs have been created, solely to keep the investor’s capital at risk over a potentially lengthy period.

In the previously posted FAQs and now in the NPRM, USCIS has made clear that the sustainment period is two years.

As to when the two-year period starts, the NPRM also states:

In instances where the new commercial enterprise is pooling investment capital to loan to a job-creating entity (as is typically seen in regional center-based investments), the investment is completed on the date the entirety of an investor’s required amount of capital is placed at risk with the job-creating entity. (emphasis added).

Interpreting the sustainment period to begin only after EB-5 investor funds have been transferred from the NCE to the job creating entity (JCE) and deployed for job-creating purposes creates a host of practical issues.

First, investor capital is fungible. Consistent with standard commercial lending and accounting practices, capital transferred to the JCE is managed and deployed as a pooled source of financing rather than tracked or segregated on an investor-by-investor basis.

Second, prudent regional centers do not typically transfer an entire lump sum of EB-5 investor funds in one transaction. Rather, like nearly all financial institutions working with large, pooled investments, the JCE or borrower requests portions of the total loan amount over time, according to a schedule laid out in the loan agreement or as needed to fund specific construction or other job-creating activities. This approach is a regular industry practice and helps ensure efficient fund management and accountability on both sides.

Construction delays or other challenges may also affect the draw schedule, which means the funds may not be transferred to the JCE as quickly as anticipated. Even without delays, draw schedules can—and often do—take several years and run right up to the point where the loan becomes repayable.

Therefore, under an interpretation that an investor’s sustainment period begins when the last dollar of their capital is transferred to the JCE, the start of the sustainment period would be much later in the project development process, sometimes years after the initial investment was made.

Additionally, there is a concern related to the conditional permanent residence period and the requirement to file Form I-829 to remove conditions on permanent residence. The petition must be filed during the 90-day period immediately preceding the second anniversary of the investor’s admission or adjustment to conditional permanent resident status. INA § 216A(c)(1)(A) and (d)(2). Investors could find themselves having to file Form I-829 before their sustainment period will have hit the 2-year mark.

The Legal Framework Provides a Floor, Not a Ceiling

Notwithstanding the RIA requirement that the investor must expect his or her capital invested to be at risk for not less than two years, it is important to note that regional centers and investors may still contractually agree to a longer period that EB-5 funds will be invested in a project.

The NPRM explains, “[T]he INA creates a minimum investment timeframe but does not preclude an investor and a commercial enterprise [from] establishing an agreement for a longer period of investment.”

When should the EB-5 sustainment period start?

Experts in the EB-5 community have suggested other, more straightforward points that could trigger the start of the sustainment period. We believe the sustainment period should begin once an investor has contributed the full required amount of capital to the NCE and that capital has been irrevocably committed in accordance with the governing transaction documents.

As explained above, under the interpretation the agency puts forth in the NPRM, the sustainment period begins when the capital is made available to the JCE at some future point, but not one that is easily predicted by investors or regional centers.

The rational seems to be that an individual has made the investment when placing capital with the NCE, but it is only at risk when it goes to the JCE. This distributed responsibility makes the process of understanding when an investor might meet eligibility requirements difficult.

There appear to be multiple possible triggering events that could start the EB-5 sustainment period:

When the investor contributes the full required amount of capital to the NCE; When the investor contributes the full required amount of capital to the NCE and those funds are committed to the JCE pursuant to a loan agreement; or When the NCE actually transfers funds to the JCE for project expenditures.

Starting the sustainment period when the investor signs a subscription agreement, contributes capital to the NCE, and those funds are made available to the JCE pursuant to the loan agreement between the NCE and JCE effectively balances investor risk and market transparency.

This approach is consistent with the investment requirements under the INA, as well as standard commercial lending practices, allowing the loan proceeds to flow into the project according to the construction timeline. It also obviates the practical difficulties discussed above.

Once the investor has made the required investment and relinquished control of the capital, the investor has satisfied the statutory obligation to invest under a plain reading of the RIA.

The timing of subsequent loan draws or project expenditures is determined by the NCE and JCE, not the investor, and subject to the vagaries of construction execution. Therefore, the construction timeline should not delay the commencement of the sustainment period.

Simply placing capital with the NCE is not sufficient to meet the requirements for the EB-5 program. If an investor’s capital never leaves the NCE’s accounts, it has not been made available for job-creating activities, and no job creation could have occurred. An investor might still fail to meet eligibility requirements even if they made the qualifying investment, and it was sustained for at least two years. But the cause in that case would be that the investor failed to establish their capital created jobs.

Fundamentally, that is the flaw in the agency’s reasoning in the NPRM. It conflates the requirement for investors to have true, at-risk investments with the requirement that investors’ capital create jobs. The interpretation they have been putting forth since 2023 and through the NPRM continues to muddy those eligibility requirements and creates an unnecessarily complicated and uncertain regulatory scheme for investors.

Commenting on the Proposed Rule: Additional Clarity Needed on Sustainment

While the duration of the sustainment period—two years—now seems to be settled law, additional clarity on exactly when the two-year sustainment period starts is still needed in the final rule.

The agency would be well-served to hear from regional centers, developers, attorneys, and other industry stakeholders about their approach to lending and using EB-5 funds.

Real-world insights may lead the agency to provide both needed clarity of the activities that trigger the start of the sustainment period and are consistent with the RIA’s statutory scheme that investor funds need only be sustained at risk for two years.

The public has until August 31, 2026, to provide comments on the proposed rule, which can be submitted here: LINK.

Conclusion

Few issues in EB-5 are as important or as contentious as sustainment. And with this regulation, DHS/USCIS has an opportunity to address policy gaps and provide certainty as to program rules. Insights from stakeholders in the notice and comment process will be critical to helping the agency to get there.