The July 2025 IIUSA vs. USCIS decision marks a turning point for the EB‑5 Program: the current two‑year sustainment interpretation remains in effect, as USCIS begins formal rulemaking that will define the future of the sustainment period and investor protections.

The EB‑5 Visa Program has long been a reliable path for foreign investors to obtain U.S. permanent residency through investments that create jobs. One of the most debated elements of the program is the “sustainment period”—the time during which an investor’s capital must remain at risk to meet immigration requirements.

Following the enactment of the EB‑5 Reform and Integrity Act (RIA) in 2022, the interpretation of this period changed, creating uncertainty for investors and regional centers. In response, Invest in the USA (IIUSA), the national EB‑5 regional center association, filed a lawsuit against USCIS for implementing critical guidance without proper regulatory procedures.

On July 29, 2025, the U.S. District Court for the District of Columbia issued a decision that, while not definitively resolving the scope of the sustainment period, sets an important precedent for transparency and regulatory compliance within the EB‑5 program.

This article provides a comprehensive analysis of the background, the court ruling, and its implications for investors, along with strategic steps to consider while awaiting the final regulation.

1. Background: Evolution of the EB‑5 Sustainment Period

Prior to the RIA of 2022, the general rule required EB‑5 investors to maintain their capital investment throughout the entire conditional residency period, which could often exceed two years due to USCIS processing and I‑829 adjudication delays.

With the enactment of the RIA:

• The law now states that the investment must “remain invested for not less than two years” from the moment the capital is placed at risk in the EB‑5 project.
  
• USCIS interpreted this change in its October 11, 2023 FAQs, creating two different compliance regimes:
  
  1. Pre‑RIA investors (before March 2022): Must sustain their investment throughout the entire conditional residence period.
     
  2. Post‑RIA investors (after March 2022): Only required to sustain the investment for two years from when the funds are placed at risk, independent of the conditional period.
     

This shift effectively shortened the mandatory investment period, raising concerns about its potential impact on EB‑5 project stability.

2. The IIUSA Lawsuit Against USCIS

On March 29, 2024, IIUSA filed a lawsuit in the D.C. District Court alleging that USCIS:

1. Violated the Administrative Procedure Act (APA) by implementing a significant policy change via website FAQs without formal notice-and-comment rulemaking.
   
2. Provided insufficient clarity and legal certainty for both investors and regional centers.
   
3. Potentially undermined project stability by imposing a two‑year period that diverged from historical expectations.
   

IIUSA requested that the court compel USCIS to issue a formal regulation and consider establishing a five‑year sustainment period, which it argued would better align with industry expectations and job‑creation reliability.

3. The July 29, 2025 Court Decision

The D.C. District Court’s ruling included three key elements:

1. Denied IIUSA’s motion for summary judgment and the government’s motion to dismiss, deeming the case premature since USCIS has not yet issued a final rule.
   
2. Accepted USCIS’s formal commitment to publish a Notice of Proposed Rulemaking (NPRM) by November 2025, initiating the official regulatory process under the APA.
   
3. Ordered joint status reports: the first due in 90 days and subsequent updates every 60 days until a final rule is issued or further court instructions are provided.
   

The judge emphasized that there was no evidence of unreasonable delay, and the court would not intervene further while USCIS progresses with the formal rulemaking process.

4. Timeline and Regulatory Next Steps

• Expected NPRM: November 2025
  
• Public Comment Period: Typically 60 to 90 days, allowing investors and regional centers to submit formal feedback
  
• Final Rule Issuance: Could take 12 to 24 months following the comment period, based on prior EB‑5 regulatory history
  
• Court Status Reports: Every 60 days, ensuring compliance and transparency from USCIS
  

Until the final rule is issued, the current interpretation outlined in USCIS’s October 2023 FAQs remains in effect.

5. Key Implications for Investors and Regional Centers

5.1 Current Interpretation Remains in Effect

• Post‑RIA investments must remain at risk for two years.
  
• Example: An investor who places capital in July 2025 meets the minimum requirement in July 2027, regardless of conditional residency status.
  

5.2 Two Coexisting Compliance Regimes

• Pre‑RIA: Sustain investment through the entire conditional residency period.
  
• Post‑RIA: Two years from the date the investment is placed at risk.
  

5.3 Opportunity to Participate in Rulemaking

The notice-and-comment period will allow investors, regional centers, and industry stakeholders to formally provide feedback that could influence the final rule.

5.4 Impact on Project Structuring and Planning

The effective duration of capital at risk directly affects project timelines, cash flow projections, and investor confidence.

5.5 “Grandfathering” Protection

• Investors filing I‑526E petitions before September 30, 2026 are considered “grandfathered” under the RIA.
  
• Even if the program lapses after September 30, 2027, grandfathered investors can continue their immigration process.
  
• The final rule is expected to clarify this protection further.
  

6. Practical Scenarios

1. Post‑RIA Investor
   
   • Invests $800,000 in May 2025.
     
   • Sustainment requirement ends in May 2027.
     
2. Pre‑RIA Investor
   
   • Filed I‑526 in January 2021.
     
   • Must sustain the investment through the end of the conditional residency period, potentially until 2026 or 2027.
     
3. New Investor in 2026
   
   • Files I‑526E in July 2026.
     
   • Covered by the RIA and the two‑year sustainment period, benefiting from the “grandfathering” clause.
     

7. Recommended Strategies for EB‑5 Investors

1. Confirm your status (pre‑RIA or post‑RIA) and review your project agreements.
   
2. Monitor court updates and USCIS publications to anticipate regulatory changes.
   
3. Prepare formal comments for the November 2025 NPRM with the support of experienced EB‑5 legal counsel.
   
4. Evaluate exit scenarios carefully to ensure compliance with both contractual and immigration requirements.
   
5. Maintain close communication with your regional center and advisors to respond quickly to any changes in guidance.
   

The July 2025 court decision marks a pivotal moment for the EB‑5 program:

• USCIS must now follow a formal regulatory process, ensuring transparency and industry participation.
  
• The current two‑year post‑investment sustainment interpretation remains in effect until the final rule is published.
  
• Investors have a critical opportunity to influence policy outcomes through the upcoming notice-and-comment process.
  

At BAI Capital, we closely monitor every regulatory development to provide our clients with accurate, timely, and strategic guidance, helping protect both their capital and their path to U.S. permanent residency.