New EB-5 Ruling Eases Timelines for Post-RIA Investors

Moustafa Daly
Cairo

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A US court has ruled that EB-5 investors need to keep their capital at risk for only two years, considerably reducing the sustainment timeline for backlogged countries like India and China.

A federal court in Washington has backed the government’s reading of how long EB-5 investors must keep their money “at risk.”  

The court ordered that foreigners who made their EB-5 investments after Congress passed the Reform and Integrity Act (RIA) in 2022 need only sustain them for two years, starting when the funds are put at risk, not when later immigration milestones occur (such as approval of a conditional green card and, later, removal of conditions).

The judge rejected a challenge by the regional center trade group IIUSA, siding with the US Citizenship and Immigration Services (USCIS) and an investor group in finding that the statute now sets a two-year sustainment period.

The ruling leaves pre-RIA investors under the old formula, where the sustainment clock generally begins after they obtain conditional permanent residency and may be extended by visa bulletin delays, creating different timelines depending on when the capital was invested.

The decision narrows uncertainty for new applicants and steadies project planning. The core requirements remain: Capital must be deployed into job-creating activity, and the investment must be at risk. The decision mostly clarifies the clock, not the standards.

Christina Tabacco of Golden Gate Global called the outcome “predictable” and described the decision as a “win for investors.”

USCIS will now move to rulemaking; the agency is set to issue a Notice of Proposed Rulemaking (NPRM) soon, a public draft that invites comments before a final rule. That process can take one to two years or longer, so this ruling will likely “govern in the interim,” explained Tabacco.

Who will it benefit?

The ruling will matter most for applicants facing backlogs. Under the current interpretation, the two-year period begins once an investor has filed for a conditional green card and has made the funds available to the project.

Tabacco explained that for investors from high-demand countries that typically faced considerable backlogs, like China or India, starting earlier can shave years off how long funds sit in projects. The ruling does not address quota limits, but it can reduce redeployments and the costs that come with them.

Many regional center projects already use loan terms of three years or more, which is enough runway to document two years of sustainment and remove conditions. Tabacco said this shift could simplify offerings and redeployment policies without changing job-creation targets.

Tabacco urged the industry to use the comment period to press for clarity on the sustainment period and “good faith investor protections” that the RIA left for regulators to detail.

Congress ultimately controls the regional center program’s authorization, which runs through September 2026. Congressional reauthorization will determine the program’s medium-term shape.

Tabacco said the ruling could help “rally parties” to ensure EB-5 receives congressional reauthorization “before September 2026.”