The American Immigrant Investor Alliance (AIIA) submitted a legal brief to provide information and guidance to the court regarding the lawsuit filed by Invest in the USA (IIUSA) against U.S. Citizenship and Immigration Services (USCIS). This lawsuit concerns the 2-year sustainment period for EB-5 investors who filed Forms I-526 on or after March 15, 2022.
The EB-5 regional center trade group claimed in March before the U.S. District Court for the District of Columbia that USCIS must repeal the existing sustainment period regulation under federal law 8 C.F.R. § 216.6(c)(1)(iii) and instead establish a 5-year sustainment period following the EB-5 Reform and Integrity Act of 2022 (RIA).
Disagreement over the EB-5 sustainment period
In an October 2023 policy update, the USCIS clarified when the sustainment period started for standalone and regional center EB-5 investors who want to remove residence conditions and filed Form I-526 on or after Mar. 15, 2022.
The agency specified the starting date as the day when the EB-5 visa investment “was contributed to the new commercial enterprise [NCE] and placed at risk in accordance with applicable requirements, including being made available to the job-creating entity. If invested more than two years before filing the I-526 or I-526E petition, the investment should generally still be maintained at the time the I-526 or I-526E is properly filed so we can appropriately evaluate eligibility.”
It is an EB-5 visa requirement that the EB-5 capital remains invested throughout those two years.
However, IIUSA argues that this USCIS policy violates federal law and industry practices. IIUSA believes that a 5-year sustainment period is a more reasonable timeframe for investment.
Meanwhile, AIIA has filed an amicus curiae, or “friend of the court,” legal brief to provide insights regarding USCIS’s position and support the agency in this case.
“AIIA has retained an ex-Department of Justice attorney, Jesse Bless, and just yesterday filed an amicus brief in support of the government’s position in this case,” Shawn Gehani, Director of Community Engagement at AIIA, explained in an emailed statement. “Given our mission, AIIA has a vested interest in ensuring that the EB-5 immigrant investor program and pro-investor reforms are upheld for our constituents—the EB-5 investors. This includes affirming the interpretation of the new 2-year sustainment period under the RIA.”
In its counterargument, AIIA asserts that USCIS has correctly interpreted the plain language of the RIA, which requires EB-5 investors to remain invested for a minimum of 2 years.
“IIUSA disagrees with this interpretation, but the plain language must be followed […] The text leaves no room for disagreement about the minimum period an investor must remain invested under 8 U.S.C. § 1153(b)(5) […] The Plaintiff’s [IIUSA] claim that USCIS issued an arbitrary, capricious, and unlawful legislative rule lacks merit […] USCIS’s public acknowledgment that the RIA changed the sustainment period did not create a legislative rule; it merely explained its interpretation of the sustainment period’s effect on post-RIA investors. By blaming USCIS for the change, the Plaintiff is directing criticism at the wrong party,” according to the amicus brief, filed on Nov.12 before the D.C. court.
Different views of the current EB-5 industry status
AIIA also contends that IIUSA’s assertion that the 2-year sustainment period harms current and future EB-5 deal-making is “incorrect and speculative.”
They argue that, contrary to this claim, “the EB-5 immigrant investor program is thriving, with deals being offered that have sustainment periods longer than the new statutory minimum. Nothing in the RIA or the change to the sustainment period affects a Regional Center or a new commercial enterprise’s ability to require a longer period of sustainment. The Plaintiff has even highlighted the robust business activity between 2022 and 2024 […] The Plaintiff’s claim that the new sustainment period has hindered the industry’s ability to attract capital for projects longer than 2 years contradicts its own data and could only be addressed by Congress, not USCIS.”
DISCLAIMER: The views expressed in this article are solely the views of the author and do not necessarily represent the views of the publisher, its employees. or its affiliates. The information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public; do not include confidential information in your question.
