On July 29, 2025, the U.S. District Court for the District of Columbia declined to intervene in the ongoing dispute over the EB-5 investment sustainment period, leaving current U.S. Citizenship and Immigration Services (USCIS) guidance in effect and confirming that formal regulations clarifying the EB-5 Reform and Integrity Act (RIA)'s requirements are expected to be published for public comment by November 2025.
Background
On Oct. 11, 2023, USCIS released FAQs on the capital investment sustainment period under the EB-5 Reform and Integrity Act of 2022 (RIA). The text of the RIA states that a qualifying investment for EB-5 "is expected to remain invested for not less than two years." In preparing its FAQs, USCIS interpreted this language in the RIA to mean that EB-5 investments made after the passage of the RIA in March 2022 only need to be "expected to remain invested for not less than two years" starting from the date the investment is made and fully placed at risk in the EB-5 project, and that the old requirement that investors must keep their investment during the entire two-year conditional permanent residency period (which may be much longer than the two-year period after the funds reach the EB-5 project) no longer applies.
The FAQs also state that investors who made an investment and filed Form I-526 prior to the passage of the RIA must continue to sustain the investment until the end of conditional residence. This created two sets of "sustainment periods" governing investors who filed petitions before and after the passage of the RIA.
Invest In the USA (IIUSA), the trade association of EB-5 regional centers, filed a lawsuit against USCIS on March 29, 2024, arguing that USCIS failed to comply with the federal Administrative Procedures Act (APA) by not providing adequate public notice-and-comment rulemaking before implementing this guidance, which has significant implications for EB-5 investors. IIUSA urged the agency to issue a formal regulation through the APA to establish a five-year sustainment period, which they argued is more reasonable to the stakeholders' reliance interests and more transparent to the investors.
The Court's Ruling
On July 29, 2025, the U.S. District Court for the District of Columbia issued an order denying IIUSA's motion for summary judgment and the government's motion to dismiss without prejudice. The court declined to rule on the merits of the interpretation on the sustainment period guidance, finding the challenge to be premature, as no final rule has been issued by USCIS. USCIS has not yet published its Notice of Proposed Rulemaking (NPRM) under the RIA and expects to publish a final rule in November 2025. The court emphasized that there is no evidence of delay or urgency requiring judicial intervention at this time, despite the fact that more than three years have passed since the RIA's enactment. Both parties are ordered to provide a joint status report in 90 days and every 60 days thereafter.
What this Means for Investors
The court declined to decide itself what the sustainment period should be, and it also declined to order USCIS to publish its regulations "faster" as was urged by IIUSA. USCIS stated multiple times in joint status filings that it was working to publish its formal regulations for the RIA by November 2025. Once published, EB-5 stakeholders will receive an opportunity to review the new regulations and provide comment to USCIS. Moreover, it is expected that the regulations proposed by USCIS will contain guidance not just on the sustainment period, but on full implementation of the RIA, including other areas like the good faith investor protections found in Subsection M of the RIA. These regulations are intended to help regional centers and EB-5 investors and projects understand how USCIS will decide applications under the RIA.
Grandfathering Provisions and Investor Protection
The RIA's grandfathering provision exempts certain individuals or entities from new or changed requirements based on their prior status or actions. Specifically, investors who file their I-526E petitions prior to Sept. 30, 2026, will be considered "grandfathered" under the RIA; even if Congress does not extend the EB-5 program beyond its current expiration on Sept. 30, 2027, grandfathered investors can continue to pursue their immigration processes. The upcoming regulations from USCIS may clarify this provision for investors.
Conclusion
As confirmed in the July 29 court order, USCIS expects to publish an NPRM in November 2025. The NPRM will be followed by a notice-and-comment period, which will eventually be followed by a final rule. Until then, current USCIS guidance should be treated as the controlling interpretation. EB-5 stakeholders should consider preparing for formal regulatory changes and remaining engaged in the process, particularly if a notice-and-comment window is made available.
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