WHAT IS THE NEW USCIS GUIDANCE REGARDING THE SUSTAINMENT PERIOD? On October 11, 2023, USCIS issued a Policy Release that confirmed the“ sustainment period” means the two years for the sustainment of an investor’ s EB-5 investment. In particular, the Policy Release stated that USCIS clarified that EB-5 investors filing I-526 or I-526E petitions after the RIA no longer need to keep their investment sustained through their full period of conditional residence. Instead, the RIA requires only that the investment be expected to remain invested for at least two years. USCIS interprets this two-year period to begin when the full qualifying capital is contributed to the new commercial enterprise and placed at risk for job creation.
In July 2025, following oral arguments regarding the definition
USCIS’ s definition of“ sustainment period” to mean the two years for the sustainment of an applicant’ s EB-5 investment remains subject to further interpretation or modification
of“ sustainment period”, a judge in the Federal District Court of Washington, D. C. ruled in favor of the plaintiff and confirmed that the Policy Release violated the law since the defendant failed to file new regulations to modify existing rules. However, because of a joint stipulation between the parties, the Judge provided USCIS until November 2025 to publish new Regulations.
Based upon the above, it is unclear if USCIS will publish rules and regulations in the required timeframe. In fact, USCIS did not publish new regulations as required. There is no assurance that the agency will publish regulations that are first acceptable and not otherwise modified by either legislation or place pressure on USCIS to conform to a different standard, and whether they will adopt the October 11, 2023, Updated Policy Release. In addition, there is no assurance as to
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