In an important development for the EB-5 investment community, a US federal court has ruled against Invest In the USA (IIUSA) in its challenge of USCIS’s updated guidance on the EB-5 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 EB-5 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 EB-5 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 EB-5 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 EB-5 Reform and Integrity Act of 2022 (RIA), the law that governs many of the current EB-5 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 EB-5 Investors?
While the lawsuit generated debate about how to define the EB-5 sustainment period, it is important to remember that the term is generally governed by the investment period outlined in each EB-5 project. Most projects align their timelines with the latest USCIS guidance.
For Current EB-5 Investors:
If you are already an EB-5 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 EB-5 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 EB-5 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 EB-5 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 EB-5 program.
At LCR Capital Partners, our commitment is to help EB-5 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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