What the sustainment period is
The sustainment period is the minimum length of time an EB-5 investor’s capital must remain “at risk” in the new commercial enterprise (NCE). It determines when an investor can receive the investment back without jeopardizing the immigration case, and it is one of the rules most closely tied to the investor’s capital security and exit timing.
When the EB-5 Reform and Integrity Act of 2022 (RIA) took effect on March 15, 2022, the statutory language governing the sustainment period changed. On October 11, 2023, USCIS updated its policy to clarify how the period is calculated for post-RIA investors. This article focuses on that policy; the governing rules are in USCIS Policy Manual Vol. 6 Part G and the agency’s latest announcements.
Two sets of rules: before and after the RIA
| Topic | Pre-RIA investors | Post-RIA investors |
|---|---|---|
| Who is covered | Investors who filed Form I-526 before March 15, 2022 | Investors who filed Form I-526E or I-526 on or after March 15, 2022 |
| End of the period | End of the two-year conditional residence period | At least two years from the date the capital is contributed to the NCE |
| Starting point | Tied to the grant of conditional residence | Tied to the date of investment |
| Link to immigration timing | Period lengthens as visa backlogs lengthen | Period is decoupled from visa backlogs |
Pre-RIA investors. Under the regulations and policy in effect before the RIA, an investor had to keep capital at risk until the end of the two-year conditional residence period, that is, until the Form I-829 filing window. For investors born in backlogged countries, the wait from I-526 filing to conditional residence could last years, and with the two-year conditional period added, capital was in practice tied up far longer than two years.
Post-RIA investors. Under the USCIS policy of October 11, 2023, a post-RIA investor’s capital must remain at risk for at least two years from the date it is contributed to the NCE. This calculation is no longer tied to conditional residence. Even if the investor’s case has not reached the conditional residence stage because of visa backlogs, the sustainment requirement is satisfied once the capital has been at risk in the NCE for two years.
It bears emphasis that “at least two years” is the statutory and policy minimum, not a promise that the investor will be repaid at the two-year mark. Actual exit timing depends on the project’s repayment arrangements.
What “at risk” means
“At risk” has long been a core EB-5 concept. Its basic meaning is that the investor’s capital must face a genuine possibility of loss together with a chance of gain. In particular:
- No guarantees of return. Neither the NCE nor the project sponsor may promise to return the investment principal, and redemption rights, guarantees, or other arrangements may not effectively eliminate the investor’s risk of loss. Any promise of guaranteed repayment or a guaranteed green card is a warning sign.
- Capital must actually be deployed into job-creating activity. Funds that merely sit in an account without being used in the business are generally not considered at risk.
- The investor must bear both gain and loss. The investor participates through equity or another risk-bearing interest, not as a creditor with a fixed right to repayment.
The at-risk requirement runs for the full sustainment period. Once the period ends, capital may be returned to the investor and no longer needs to be at risk.
Interaction with repayment
In practice, EB-5 capital flows from the investor to the NCE, from the NCE to the job-creating entity (JCE), and from the JCE into construction or operations. The JCE’s repayment to the NCE is set by the project’s financing documents and is usually tied to the construction schedule or the loan term.
The relationship between the sustainment period and repayment falls into three cases:
- The JCE repays after the sustainment period ends. The NCE may distribute the proceeds to investors under its partnership or operating agreement; the sustainment requirement has already been met.
- The JCE repays before the sustainment period ends. The NCE cannot immediately return the funds to investors, because the capital would no longer be at risk and the I-829 could be affected. The NCE must redeploy the capital.
- The JCE delays repayment. The investor’s capital remains at risk and the sustainment requirement is met by default, but the investor bears the commercial risk of a longer holding period.
Before subscribing, investors should read the financing documents carefully for repayment dates, extension provisions, and the NCE’s distribution policy, and understand how those terms relate to their own sustainment period.
Interaction with redeployment
Redeployment occurs when the JCE repays the NCE before an investor’s sustainment period has ended and the NCE reinvests the funds in other business activity to keep them at risk. Under current policy, the NCE may redeploy into any lawful commercial activity within the United States, and the capital must remain at risk.
For pre-RIA investors, whose sustainment period was tied to conditional residence and whose backlogs could last years, redeployment became common and was a focal point of dispute and risk: the NCE’s manager chose the redeployment target, investors typically had little say, and the risk profile of the new investment could differ entirely from the original project.
For post-RIA investors, the two-year period measured from the date of investment substantially narrows the gap that can open between the sustainment period and the project’s repayment cycle. Where a project’s repayment term exceeds two years, as most do, a post-RIA investor is less likely to encounter redeployment. That does not mean it cannot happen. If a project repays early, or if the investor chose a project with a short term, the NCE may still need to redeploy. Investors should check the NCE documents for the scope of redeployment authority and the procedure for exercising it.
Ongoing litigation
After USCIS issued its October 2023 policy, differing views emerged within the industry about the correct reading of the RIA’s sustainment language. Some argue that the statutory text should be read to require a longer period or one tied to other immigration milestones; others support USCIS’s two-year interpretation. The dispute has reached the courts.
This article does not describe the litigation in detail or predict its outcome. Investors should note the following:
- Until a court rules otherwise or USCIS changes its policy, the October 11, 2023 policy remains the basis on which USCIS adjudicates Form I-829.
- If the policy changes as a result of litigation, how the revised rule applies to petitions already filed will be governed by USCIS announcements at that time.
- In planning an exit, investors should leave room for policy change and should not treat “capital back after two years” as a certainty.
What it means for investors
- Post-RIA investors’ sustainment period is decoupled from visa backlogs. This is a substantive improvement brought by the RIA, especially for investors born in backlogged countries.
- Two years is a minimum, not an exit guarantee. Actual exit timing is set by the project’s repayment terms; read the financing documents.
- At risk is a hard requirement. Any guarantee of principal may disqualify the investment for EB-5 purposes.
- Pay attention to redeployment provisions. Even with the shorter period, redeployment can still occur, and investors should understand the NCE’s authority to redeploy.
- Policy may change. Litigation is ongoing; rely on the latest USCIS announcements.
Key takeaways
- USCIS policy of October 11, 2023: post-RIA investors must keep capital at risk for at least two years from contribution to the NCE; pre-RIA investors must sustain through the end of the two-year conditional residence period.
- “At risk” means a genuine possibility of loss with no guarantee of return.
- If the JCE repays before the sustainment period ends, the NCE must redeploy; redeployment may be into any lawful commercial activity in the United States.
- The two-year rule substantially reduces, but does not eliminate, the likelihood that post-RIA investors face redeployment.
- Litigation over the RIA sustainment interpretation is ongoing; the latest USCIS guidance governs.