A federal court ruling has clarified that EB-5 immigrant investors need to keep their capital at risk for two years, aligning with current policies and providing clarity in the green card process.
A recent federal court decision has marked a pivotal moment for foreign nationals seeking permanent residency in the United States through the EB-5 immigrant investor program. Under this ruling, EB-5 investors are no longer required to keep their investments “at risk” for longer than two years, affirming a current U.S. Citizenship and Immigration Services (USCIS) policy and dismissing a legal challenge from a trade group representing regional investment centers.
The EB-5 visa program, introduced in 1990, offers wealthy foreign nationals a path to U.S. residency by investing in American projects. However, the program has faced criticism over potential abuses. The court’s decision helps reduce the financial and procedural uncertainties for applicants by providing a clear timeline on the investment risk period, which could significantly impact the thousands currently navigating U.S. immigration policy.
The recent ruling in Washington came after a lawsuit filed by Invest in the U.S.A. (IIUSA), an association of EB-5 regional centers. The IIUSA contended that the 2022 EB-5 Reform and Integrity Act (RIA) did not alter the existing requirement, which linked the investment period to the adjudication of conditional green card status, potentially compelling investors to keep their funds tied up indefinitely if the immigration process was delayed.
Judge Ana C. Reyes sided with the government and the American Immigrant Investor Alliance (AIIA), an organization advocating for immigrant investors. She declared that the 2022 RIA revised the law’s language regarding the sustainment period for capital investments. According to her order, EB-5 investors who made their investments post-March 2022 need to keep their money at risk for just two years after the capital is placed into an investment. This decision doesn’t apply to those who invested before the RIA, wherein the sustainment period begins after obtaining conditional lawful permanent residency, influenced by immigrant visa bulletin dates.
With this decision, USCIS is charged with drafting new regulations to formalize these rules, including a notice of proposed rulemaking and a period for public comment, a process that could span one to two years, or possibly longer. While USCIS’s existing policy on the EB-5 program will remain during this rulemaking period, the precise wording of these new regulations remains pending.
The discussion around the EB-5 program was notable even in political discourse, reflecting divided views among policymakers. President Donald Trump once suggested exchanging high investment amounts for U.S. citizenship in a speech, emphasizing the need to reform the program, which some officials considered fraught with fraud and inefficiencies.
In the meantime, advocacy groups supporting EB-5 investors continue to plan for active involvement and legislative reform efforts in Congress, ensuring the program maintains its integrity while being fair to investors and fulfilling broader economic development goals.
The current USCIS policy on the two-year sustainment for post-RIA investments continues to persist, maintaining the older standards for pre-RIA investors. The final regulatory outcomes may influence further legislative debate and reforms in the future.