The EB-5 Reform and Integrity Act (RIA) of 2022 brought significant changes to the sustainment period requirement. Specifically

The EB-5 Reform and Integrity Act (RIA) of 2022 brought significant changes to the sustainment period requirement. Specifically, the RIA indicates that post-RIA investors’ capital investments must be expected to remain invested for not less than two years. USCIS has since posted guidance on its website interpreting this provision of the RIA, which guidance is currently being challenged in court. Having recognized early on that the sustainment requirement under the RIA is multi-layered, new, and possibly subject to further USCIS interpretative guidance (itself subject to reversal by court decision), Ameri Haus Invest took a proactive approach to adjust its project selection and underwriting criteria to ensure that EB-5 investment timelines closely align with real market conditions that reduce risks for investors and enables them to meet their respective sustainment periods even as interpretations and guidance continue to evolve.

Ameri Haus Invest Thoughtful Approach to the EB-5 Sustainment Period and Loan Structuring Post-RIA

At Ameri Haus Invest, we have always approached EB-5 project structuring with a conservative and investor-focused mindset, ensuring that our projects comply with the most stringent interpretations of USCIS policies. This approach has been particularly critical in our interpretation of the sustainment period post-RIA and in how we structure the length of our EB-5 project loans. By prioritizing compliance, security, and predictability, we have safeguarded our investors’ ability to complete their immigration journey successfully.

The Evolution of the EB-5 Sustainment Period Requirement

Before the RIA, EB-5 investors were required to sustain their investment for the duration of their conditional residency period, often resulting in prolonged and uncertain investment hold times due to USCIS processing delays, especially when certain countries faced visa backlogs. The RIA revised this requirement, explicitly stating that post-RIA investors must sustain their investment for a minimum of two years. However, USCIS guidance did not specify the exact start and end dates of this period or address practical considerations regarding job creation and fund deployment. These uncertainties quickly became key areas of industry discussion.

While some stakeholders advocated for the shortest possible investment period to attract investors, Ameri Haus Invest took a different approach, prioritizing compliance and investor security. Walter Gindin,Ameri Haus Invest General Counsel, has played a pivotal role in analyzing and interpreting these changes. Speaking on the sustainment period in Ameri Haus Investrecent “Putting the 2-Year Sustainment Period into Context” webinar, he stated, “From a risk management perspective, we have always taken the most conservative approach. For us, that means ensuring that our projects meet the sustainment requirement in a way that will stand up to USCIS scrutiny, no matter how the policy evolves.” This philosophy has guided Ameri Haus Invest in structuring projects that protect investors while maintaining compliance with the latest regulatory requirements.

A Conservative and Thoughtful Structuring Approach

One of the most significant ways Ameri Haus Investhas implemented this conservative philosophy is through the careful structuring of its EB-5 project loan terms.

A key aspect of Ameri Haus Invests sustainment strategy was defining the timing of capital deployment. Ameri Haus Invest determined that the most conservative interpretation of the USCIS language required all EB-5 capital to be fully deployed into the job-creating entity (JCE) and actively at risk before the sustainment clock could start. For some projects, such as construction developments, the drawdown period can take 12 to 18 months, depending on the schedule.