In an important development for the EB5 investment community, a US federal court has ruled against Invest In the USA (IIUSA) in its challenge of USCIS’s updated guidance on the EB5 investment “sustainment period.” While the ruling may not have delivered the clarity some hoped for, it does offer useful direction on what comes next—and when we can expect it.
The case stems from USCIS’s 2023 guidance requiring EB5 investments to remain at risk for at least two years from the “date of investment”. However, it was unclear if such a date meant:
- The date the capital is released to the New Commercial Enterprise (NCE).
- The date the NCE transfers the capital to the Job-Creating Entity (JCE).
- The date the JCE actually spends the capital on job-creating activities.
IIUSA, a leading EB5 trade association, filed a lawsuit challenging this interpretation, arguing it was issued without proper rulemaking and created uncertainty for investors and regional centers.
The Court’s Decision
In its July 2025 decision, the court determined that the new USCIS policy on the EB5 investment period does not yet represent a final agency action. That means the policy is not enforceable as a permanent rule and cannot be legally challenged on that basis—at least for now.
The court also acknowledged that USCIS has already begun formal rulemaking to implement the EB5 Reform and Integrity Act of 2022 (RIA), the law that governs many of the current EB5 program requirements.
According to court documents, USCIS has confirmed that it plans to publish a Notice of Proposed Rulemaking (NPRM) in November 2025. This formal process will give industry stakeholders an opportunity to review and comment on a finalized version of the new investment period rule.
In the meantime, the court ordered the parties to file regular joint status reports every 60 to 90 days to monitor progress until a final rule is published.
What Does This Mean for EB5 Investors?
While the lawsuit generated debate about how to define the EB5 sustainment period, it is important to remember that the term is generally governed by the investment period outlined in each EB5 project. Most projects align their timelines with the latest USCIS guidance.
For Current EB5 Investors:
If you are already an EB5 investor, focus on the investment term of your chosen project and understand its exit strategy. The USCIS guidance issued in 2023 suggested a two-year minimum sustainment period, but until that guidance becomes a final rule, some uncertainty remains.
As such, your project’s exit strategy, fund maturity timeline, and redeployment strategy (if applicable) are key factors in estimating when you might receive your capital back.
For Future Investors:
If you are considering an EB5 investment, this ruling underscores the importance of working with a trusted partner. Projects and regional centers must be ready to adapt to changes once the final rule is released.
We recommend choosing EB5 opportunities built on transparent, flexible, and conservative investment structures that can evolve with regulatory developments.
Looking Ahead: November 2025
The upcoming Notice of Proposed Rulemaking in November 2025 is expected to provide:
- Clear definitions of the EB5 investment period
- Formal guidelines for the sustainment requirement
- Opportunities for public comment before the rule becomes final
We will be closely monitoring the process and will keep our investors and partners updated every step of the way.
While this ruling does not change the current guidance, it reinforces that USCIS is actively working toward a formal, transparent rulemaking process. That is a positive sign for the long-term integrity and predictability of the EB5 program.
At LCR Capital Partners, our commitment is to help EB5 investors navigate changes confidently and securely. If you have any questions about how this ruling might affect your investment strategy, please don’t hesitate to contact our team.
Final Thoughts
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