New USCIS rule: EB-5 investments are “sustained” from the date of fund investment


2023-10-11: It’s official – EB-5 investors filing petitions under the new Reform and Integrity Act of 2022 need only sustain their investment for two years from the time the funds are made available for job creation. If an EB-5 investor files their I-526 or I-526E petition more than two years after their investment of funds, USCIS still requires that the funds remain invested at time of petition filing.

In an email circular this afternoon, USCIS finally settled this major point of ambiguity and unpredictability in the EB-5 investment immigration process. Although this new rule does not apply retroactively to EB-5 cases filed before the RIA went into effect in March 2022, the greater degree of clarity is expected to give far greater assurance and confidence in investors coming to the EB-5 program anew.

Before the RIA passed in 2022, USCIS had applied a much stricter definition of “sustainment of investment”, defining the period as “the two years of conditional permanent residence”. This old interpretation required the investor to first obtain their conditional green card before the two years began to count, introducing a wildly unpredictable degree of financial uncertainty that varied by nation of birth and USCIS internal processing times. With conditional green card wait times extending well over five years for certain oversubscribed countries, the EB-5 industry was forced to adopt an onerous practice of “redeployment of funds”, an arrangement that ran contrary to financial need and commercial practice, and forced regional centers and project developers to re-invest EB-5 investor monies into at-risk projects, even when the initial investment term had been satisfied.

With the re-definition of sustainment to begin counting from the date of investment of funds, redeployment is likely to become a thing of the past, reducing the risk to EB-5 investors and allowing them to invest in one project from the start, and one project only.

“Sustainment” still requires the funds to reach the first-line job creating entity (and to be expended in the actual creation of jobs), and the activity must be at-risk, meaning that it has a chance of profit and a risk of loss. However, the new development allowing this 2-year requirement to be satisfied from date of investment is a highly welcome one.

Benjamin Hu Immigration Law is proud to be a member of the American Immigrant Investor Alliance, an EB-5 industry policy group that furthers regulatory and legislative protections for EB-5 investors. Contact us today to discuss your investment immigration plans under the new RIA rules.