EB-5 Investors Need Only Invest Their Capital for 2 to 3 years
USCIS Clarifies the RIA 2-year Sustainment Period
USA October 12, 2023: USCIS issued a new policy statement providing important new guidance on the EB-5 sustainment period:
2-YEAR SUSTAINMENT PERIOD
We are providing additional guidance on our interpretation of changes to the EB-5 program in the Immigration and Nationality Act (INA) made by the EB-5 Reform and Integrity Act of 2022 (RIA), specifically the required investment timeframe and how we treat investors who are associated with a terminated regional center.
This guidance clarifies the required investment timeframe for EB-5 investors who file Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, on or after March 15, 2022, as outlined in the RIA.
For investors seeking to remove conditions on their permanent resident status under INA 216A based on an EB-5 immigrant visa petition filed on or after enactment of the RIA (post-RIA investors), the RIA removed the requirement that the investor must sustain their investment throughout their conditional residence. The RIA also modified INA 203(b)(5)(A)(i) (the general requirement for classification to invest or be actively in the process of investing the requisite amount of capital in a new commercial enterprise) by adding new language that the investment required by INA 203(b)(5)(A)(i) must be expected to remain invested for at least two years.
Because of these changes made by the RIA, investors filing petitions for classification after enactment of the RIA no longer need to sustain their investment throughout their conditional residence, which may be many years in the future and dependent on factors outside the investor’s control such as visa availability.
Instead, the INA now requires only that the investment must be expected to remain invested for at least two years, provided job creation requirements have been met. Although the statute does not explicitly specify when the two-year period under INA 203(b)(5)(A)(i) begins, we interpret the start date as the date the requisite amount of qualifying investment is made. In other words, we will use the date the investment was contributed to the new commercial enterprise 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.
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