EB5AN is pleased to share a legal analysis letter prepared by Greenberg Traurig, LLP, providing important clarification on USCIS policy regarding the required EB-5 investment period.
The letter outlines how USCIS interprets when the investment period begins, how long funds must remain invested, and how these rules apply to I-526E and I-829 petitions.
Key Points From the Letter
- Minimum Investment Period
- When the Two-Year Clock Starts
- Separation of Investment Period From Conditional Residence
Future Guidance Expected
EB5AN Is Committed to Helping EB-5 Investors Make Informed Choices
Download the Full Letter
The complete analysis letter from Greenberg Traurig, LLP can be downloaded here:
EB-5 Funds Deployment Timeline Analysis Letter by Greenberg Traurig, LLP
Key Points From the Letter
Minimum Investment Period
The EB-5 Reform and Integrity Act of 2022 (RIA) established a rule stating that EB-5 investors who file Form I-526E on or after March 15, 2022, must keep their investment in an EB-5 project for not less than two years.
Subsequently, USCIS updated its Policy Manual, Volume 6, Part G, Chapter 2, Section A.2, to reflect this change:
When the Two-Year Clock Starts
USCIS further clarified this guidance on its website, on a page entitled “EB-5 Questions and Answers,” which were last updated by USCIS on May 15, 2025.
Specifically, USCIS explained that the two-year sustainment period begins when the funds are fully invested in the new commercial enterprise (NC) and the new commercial enterprise makes the EB5 funds available to the EB-5 project/job-creating entity (JCE):
Put simply, the sustainment period can begin as soon as the investor’s funds are released to the NCE and made available to the JCE. Of course, this alone will not meet all requirements to remove conditions at the time of filing form I-829—if the funds are never actually advanced to the JCE, no job creation will occur.
Additionally, if an investor makes a partial investment and then later invests the remaining capital, the two-year period will not commence until the final installment is made available to the JCE from the investor.
Separation of Investment Period From Conditional Residence
On the “EB-5 Questions and Answers” page, USCIS specifically confirmed that investors who file an I-526E petition under the RIA after March 15, 2022, no longer need to sustain their investment throughout the two-year period of their conditional residence to be eligible for removal of conditions on their permanent resident status.
In other words, USCIS clarified that the required two-year period of investment no longer needs to match the two-year period of the investor’s conditional permanent residence:
When filing the I-829 petition to remove the conditions on permanent residence, USCIS will evaluate when the full amount of capital was made available to the JC for purposes of determining when the two-year investment period began.
Because USCIS no longer requires the two-year investment period to coincide with the two-year period of conditional residence, it is possible for the EB-5 investment to be advanced to JCE at any time before or during an investor’s two-year period of conditional residence, even just before the investor’s I-829 petition is filed.
EB5AN also takes the conservative view that once funds are advanced to the JCE, the EB-5 funds must remain with the JCE for a minimum of two years, in accordance with the EB-5 loan agreement or investment documents for the project.
Future Guidance Expected
USCIS has confirmed it is working toward publishing a comprehensive EB-5 Notice of Proposed Rulemaking (NPRM), with publication currently estimated for November 2025. This NPRM is expected to provide additional clarification on the required investment period.
EB5AN Is Committed to Helping EB-5 Investors Make Informed Choices
At EB5AN, we understand that making an EB-5 investment is a significant decision. We strive to offer clarity, transparency, and timely updates on evolving industry regulations.
If you have questions or would like to explore your EB-5 investment opportunities, we invite you to schedule a free consultation with us. Our team has helped over 2,700 families from 70+ countries become lawful permanent residents of the United States, and we are here to help you navigate the EB-5 landscape and make informed decisions that align with your immigration and financial goals.
