IIUSA Sues USCIS Over EB-5 Sustainment Rules: What It Means

In a legal battle with far-reaching implications for EB-5 investors and regional centers, Invest in the USA (IIUSA) — the national not-for-profit industry trade association for the EB-5 Regional Center Program — has taken the U.S. Citizenship and Immigration Services (USCIS) to court over controversial changes to the sustainment period policy.

If you’re an EB-5 investor, stakeholder, or immigration attorney, this case is worth watching closely.

📚 What Is the Sustainment Period — and Why Does It Matter?

In EB-5, the “sustainment period” refers to the length of time an investor’s capital must remain “at risk” in a U.S. business to qualify for a green card.

Historically, this was linked to the period of conditional permanent residence — but USCIS changed its guidance in October 2023, introducing significant uncertainty into the process. IIUSA argues that this shift, made without formal rulemaking, undermines predictability and could jeopardize investor eligibility.

🧑‍⚖️ Why IIUSA Is Suing USCIS

IIUSA filed its lawsuit in District Court for the District of Columbia (Case No. 1:24-cv-918-ACR), asserting that:

• The October 2023 USCIS guidance was issued improperly, without going through the required notice-and-comment rulemaking process.
• The policy is destabilizing the EB-5 marketplace, leading to investor confusion and potential compliance issues.
• IIUSA offered a compromise solution:
  • USCIS would retract the guidance
  • Investors who relied on the old rule would retain protection
  • USCIS would engage in formal rulemaking on a mutually agreed timeline

🏛️ USCIS’s Response: Delay and Rulemaking

USCIS has requested that the case be held in abeyance — essentially paused — while it undertakes rulemaking to address the issue. However, the timeline is murky:

• The agency estimates a Notice of Proposed Rulemaking (NPRM) by November 2025, but won’t commit to that date
• It offers no firm deadline for when a final rule would be published
• USCIS argues that rushing rulemaking could trigger additional litigation from other investor groups, especially given complexities tied to the EB-5 Reform and Integrity Act of 2022 (RIA)

🕊️ Stalemate as of March 2025

In their most recent Joint Status Report (March 21, 2025), both sides confirmed they’ve failed to reach a settlement.

• IIUSA urges the Court to move forward and issue a decision
• USCIS continues to push for an indefinite delay while it develops regulations
• The case now sits at a legal crossroads — with investors, developers, and attorneys stuck in the middle

🔎 Why This Lawsuit Matters to EB-5 Investors

This case goes beyond procedure — it directly affects:

• 🧾 How long your investment must remain at risk
• 🕒 When you can safely exit your project after conditional residency
• ⚖️ The legality of USCIS policies moving forward

It also underscores the broader tension between Congressional immigration authority, executive agency rulemaking, and the interests of foreign investors navigating U.S. immigration law.

🧠 Key Takeaways

• IIUSA is challenging USCIS’s unilateral policy shift on the EB-5 sustainment period
• The outcome of this lawsuit could clarify or redefine investment timelines
• USCIS is delaying change through a lengthy rulemaking process, with no clear end in sight
• Investors should prepare for both legal and policy uncertainty over the next 12–24 months

📩 Want to Know How This Could Affect Your EB-5 Strategy?

Whether you’re an investor planning your I-526E filing or a project sponsor designing exit timelines:

👉 Book a strategy call with our team to understand how this legal challenge might impact your petition or regional center operations.
Or
📚 Learn more about the EB-5 visa and how it works — and explore our USCIS-approved investment opportunities.