Green Card applicants can expect new EB-5 regulations to be unveiled by the US in November.
President Biden has signed the EB-5 Reform and Integrity Act of 2022 (RIA), bringing significant changes to the EB-5 Immigrant Investor Program (EB-5 Program). One of the key modifications concerns the investment sustainment requirements.
Under the new rules, EB-5 investors who file their petition on or after March 15, 2022, must keep their investment actively "at risk" for a minimum of two years after the new commercial enterprise (NCE) deploys the funds into the job-creating enterprise (JCE). This sustainment period starts from when the investment is fully placed at risk in the EB-5 project, rather than the entire two years of conditional permanent residency as was previously required.
For investors who filed their petition before March 15, 2022, the prior rule applies: the investment must remain at risk throughout the entire two-year conditional permanent residency period, which can sometimes be longer due to visa retrogression or processing delays.
Investments must be genuinely "at risk"—guaranteed returns or fixed repayment terms do not qualify. This change is designed to ensure that the investments made under the EB-5 Program are truly risky and contribute to the creation of new jobs in the United States.
The U.S. Citizenship and Immigration Services (USCIS) has begun work on a comprehensive EB-5 Notice of Proposed Rulemaking to implement the EB-5 Reform and Integrity Act of 2022. The Notice of Proposed Rulemaking is a proposal that is typically published in the Federal Register and made publicly available so that they are readily accessible to the public. Formal regulations clarifying the EB-5 Reform and Integrity Act's requirements will be published for public comment by November 2025.
The EB-5 visa program, which allows foreign investors to obtain a Green Card in exchange for investing in U.S. businesses, has an associated EB-5 Regional Center Program. Members of this program raise foreign investment capital and develop projects across the country.
It's important to note that the changes to the investment sustainment requirements are currently the subject of legal challenge. The U.S. District Court for the District of Columbia declined to intervene in the EB-5 investment 'sustainment dispute'. The court has dismissed the challenge to the interpretation of the sustainment period guidance as premature, citing the lack of a final rule from USCIS.
USCIS will announce EB-5 rules in November that clarify the period for investors to keep their investments to be eligible for a US green card. The agency plans to publish the results of this process in November 2025.
In summary, the EB-5 Reform and Integrity Act of 2022 has modified the investment sustainment requirements for the EB-5 Program. For investors who filed their petition on or after March 15, 2022, the investment must stay at risk for at least 2 years from when the funds are deployed into the job-creating enterprise, not necessarily the full 2 years of conditional permanent residency. For investors who filed their petition before March 15, 2022, the investment must remain at risk throughout the full conditional residency period (2 years, potentially extended). The changes are subject to ongoing legal challenge but remain USCIS policy as of 2025.
- The EB-5 Reform and Integrity Act of 2022 has introduced significant changes to the EB-5 Immigrant Investor Program, altering the investment sustainment requirements for new investors.
- Under the new rules, investments made by EB-5 investors on or after March 15, 2022, must be maintained as active and at risk for a minimum of two years from the time the funds are deployed into the job-creating enterprise, not necessarily the full 2 years of conditional permanent residency.
- The U.S. Citizenship and Immigration Services (USCIS) is working on a comprehensive Notice of Proposed Rulemaking to implement the EB-5 Reform and Integrity Act, which will provide formal regulations clarifying the new investment sustainment requirements by November 2025.
