The EB-5 Two-Year Clock: One Proposed Rule, Five Definitions of “At Risk”

Ask the most consequential question in post-2022 EB-5, “when does my two-year investment clock start,” and DHS’s new proposed rule gives you an answer. The problem is that it gives you that answer in five different vocabularies, built around two anchors that cannot both be right.

The Reform and Integrity Act replaced the old requirement to sustain an investment throughout conditional residency with a cleaner concept: capital must be expected to remain invested for at least two years. USCIS has read that period as running from the date the qualifying investment is made and placed at risk, and that two-years-from-investment interpretation survived an industry association’s court challenge in the federal district court for the District of Columbia in August 2025. The industry has spent four years asking for one thing above all in the implementing regulations: a single, clear statement of when that period begins and where the capital must sit while it runs. The proposed rule published July 2, 2026 instead splits along a consistent fault line. Every operative provision anchors the investment at the new commercial enterprise, with availability to the job-creating entity as the connective. Every preamble gloss reaches further, to capital placed with, provided to, or remaining at the job-creating entity. For a regional center investor whose capital moves from subscription to a new commercial enterprise to a job-creating entity, the gap between those two readings can be measured in months of clock time.

We have catalogued every instance with citations to the published rule (91 FR 40676-40802), and the pattern repeats in four separate places. What follows is what the rule says, why the internal conflict matters, and what DHS needs to hear from the people who operate under these words. The five vocabularies, for the record: placed at risk in a commercial job-creating activity; placed at risk with the job-creating entity; placed at risk in a new commercial enterprise; made available to the job-creating entity; and provided to the job-creating entity.

Preamble and Regulatory Text Do Different Jobs

A rulemaking document has two parts. The regulatory text is the law: it is what gets codified into the Code of Federal Regulations, and it is the standard a petition is legally judged against. The preamble is the agency’s explanation: background, reasoning, responses to concerns, and descriptions of what the agency believes its text does. The preamble does not get codified and does not bind anyone. But it is far from irrelevant. Adjudicators read preambles when drafting a Request for Evidence, and attorneys cite this published language to support their clients.

When regulatory text is genuinely ambiguous, courts can defer to an agency’s authoritative reading of its own regulation, and a contemporaneous preamble is the classic vehicle for that reading. But that deference has limits: it extends only to interpretations that reflect the agency’s fair and considered judgment. A preamble that describes its own cross-cited provision in words the provision does not contain, in multiple places, is not a candidate for deference. It is evidence the drafting was never reconciled.

The practical rule of thumb: when preamble and text conflict, the text should win. Here are the conflicts.

What the Text Says, and What the Preamble Says

Start with the definitions discussion in the preamble, at 91 FR 40695, quoted in full because the structure matters: “This definition would clarify the capital is invested when it is placed at risk in a commercial job-creating activity. In instances where the new commercial enterprise is pooling investment capital to loan to a job-creating entity (as is typically seen in regional center-based investments), the investment is completed on the date the entirety of an investor’s required amount of capital is placed at risk with the job-creating entity. Alternately, if the new commercial enterprise is the job-creating entity (as is typically seen in standalone investments), then the investment is completed on the date the entirety of an investor’s required amount of capital is placed at risk with the new commercial enterprise.”

One principle, applied to two deal structures. For standalone investors the two readings converge, because the new commercial enterprise is the job-creating entity. For pooled regional center investments, the structure that accounts for the overwhelming majority of the program, the preamble says the investment is not completed until capital is at risk with the job-creating entity.

Now the operative text. The codified definition, proposed 8 CFR 204.401 (91 FR 40778): “Invest means to contribute lawfully obtained capital that is placed at risk in a commercial job-creating activity such that there is a risk of loss and a chance for gain.” The eligibility provision, proposed 8 CFR 204.407(a) (91 FR 40781): the investor must “expect to maintain that investment for at least two years from the time it was placed at risk in a new commercial enterprise in the United States.” And the removal-of-conditions standard, proposed 8 CFR 216.6(d)(2)(ii) (91 FR 40800), quoted in full: the investor must have “Remained invested for at least two years from the date the investment was placed at risk in a new commercial enterprise, including being made available to the job-creating entity(ies) and redeployed in accordance with the requirements under § 204.426 of this chapter as applicable”.

Read whole, the operative start anchor is the new commercial enterprise. The “including” clause does not move the anchor; it specifies what remaining invested involves during the period, availability to the job-creating entity and compliant redeployment, each “as applicable.” Made available is commitment language. It is not the same thing as transferred.

So the rule contains two start anchors for the pooled case: the preamble’s completion-at-the-job-creating-entity, and the text’s placed-at-risk-in-the-new-commercial-enterprise. The remaining vocabulary, “provided to the job-creating entity,” appears in the preamble’s removal-of-conditions discussion and in the high unemployment area rules (91 FR 40706, 40710, 40730, and proposed 8 CFR 204.402(g)), where transfer timing serves a separate function: locking in a targeted employment area designation. Transfer words for a designation rule are defensible. Transfer words describing a provision that says “made available” are not, and that is where the drafting breaks down.

The Same Split, Four Times

This is not one loose sentence. The preamble-versus-text divergence repeats in four paired places, and the pairs all lean the same way.

First, the start anchor. Preamble, 91 FR 40695: pooled investment “completed” when capital is “placed at risk with the job-creating entity.” Text, 204.407(a): two years run from placement “at risk in a new commercial enterprise.”

Second, the filing-date condition. Preamble, 91 FR 40706: DHS “proposes to modify its post-RIA policy to require (rather than suggest) that the investment would also have to remain at risk and available to the job-creating entity on the date the investor files his or her EB-5 immigrant visa petition.” Text, 204.407(b)(1) (91 FR 40781): capital “must remain invested on the date the EB-5 immigrant visa petition is filed.” The text says invested; the preamble adds available to the job-creating entity.

Third, the removal-of-conditions standard, described in the preamble’s duration-of-investment discussion (91 FR 40706-07): “the investment capital must remain with the job-creating entity or in use by the job-creating entity for the job-creating activity for no less than 2 years, except where the new commercial enterprise must redeploy the capital, after sufficient job creation, to another commercial activity within the same 2 years to keep the investor’s capital at risk. See proposed 8 CFR 216.6(d)(2)(ii).” And two sentences later, USCIS will determine “whether the investment was maintained at risk for at least 2 years from the date it was placed at risk and provided to the job-creating entity. Id.” Both sentences cite 216.6(d)(2)(ii). Neither phrase, “remain with the job-creating entity” or “provided to the job-creating entity,” appears in 216.6(d)(2)(ii). The preamble twice describes its own cross-cited provision in vocabulary the provision does not contain.

Fourth, escrow release. The preamble (91 FR 40706) describes capital “released from escrow to the commercial job-creating activity.” The codified definition of “actively in the process of investing” (91 FR 40696; proposed 8 CFR 204.401) says escrowed capital is held “for release to the new commercial enterprise.” Same event, different destination.

Note what even the strictest preamble sentence concedes: the removal-of-conditions passage carves out compliant redeployment “to keep the investor’s capital at risk.” Every road in this rule bottoms out in at-risk logic, which is precisely why the vocabulary should be conformable without any policy change.

Why DHS Appears Stuck, and What Each Standard Protects

This does not read like carelessness so much as an agency genuinely caught between competing priorities, each of them legitimate.

A contribution standard, starting the clock at the new commercial enterprise, gives investors certainty and an early, documentable start date. A commitment standard, capital made available to the job-creating entity, reflects how pooled deals actually work: the job-creating entity underwrites its capital plan against subscribed capital, counts on it, and must arrange alternate financing on unforgiving schedules if it does not arrive. A transfer or deployment standard, capital provided to and at risk with the job-creating entity, maximizes the nexus between the investor’s money and the jobs the program exists to create, and guards against capital parked at an intermediate entity.

There is also a reading that harmonizes nearly all of it, and DHS should say so if it agrees. This rule would codify the holdings of the EB-5 precedent decisions, including Matter of Ho and Matter of Izummi, under which “at risk” has always been a risk-position concept rather than a wire-confirmation concept: capital parked in a controlled account is not at risk, while capital fully committed to the job-creating activity is. On that reading, “placed at risk with the job-creating entity” and “placed at risk in a new commercial enterprise, including being made available to the job-creating entity(ies)” describe one standard, committed and available rather than parked, in two vocabularies. That is the reading we will ask DHS to confirm. But confirmation has to come from the agency, because today the words on the page support both a commitment reading and a transfer reading, and an investor cannot underwrite to a harmonization the rule has not adopted.

DHS’s stated goals sit with the flexible end of the spectrum: the agency writes that its approach “would further limit the need for new commercial enterprises to redeploy investor capital after sufficient jobs have been created” (91 FR 40706), and it assesses that “the likelihood of redeployment becoming a regular occurrence for EB-5 immigrant visa petitions filed on or after March 15, 2022, is highly unlikely” (91 FR 40698). Those goals argue for the contribution and commitment standards. The preamble’s 91 FR 40695 and 40706 passages pull toward deployment. The industry asked for simplification; as drafted, the proposal delivers both vocabularies at once. None of this dims the headline: industry commentators have described the codified two-year period itself as a genuine win that ends indefinite redeployment risk for post-RIA investors. The dispute is over vocabulary, not the framework.

The Third Timing Element Nobody Is Talking About

The two-year clock is actually three requirements, and the third is new. An investor may invest any time before filing. The two-year expectation runs from the date of investment. And, under proposed 204.407(b)(1), the investment would also have to be live on the filing date: capital “must remain invested on the date the EB-5 immigrant visa petition is filed.” The preamble describes this as a deliberate tightening, a change from suggestion to requirement.

That third element has an unresolved interaction with escrow. The rule is explicit that an investor can establish eligibility while “actively in the process of investing by placing his or her capital in escrow pending approval” (91 FR 40706), and the codified definition permits escrowed capital held “for release to the new commercial enterprise” (91 FR 40696). But if escrowed capital has not yet been released, in what sense does it “remain invested” on the filing date? The commitment reading answers cleanly: escrowed capital under a binding subscription is committed, and commitment is what the definition of actively in the process of investing has always required. The transfer reading has no clean answer. This is one more place where DHS choosing its words carefully, once, would eliminate a future generation of Requests for Evidence. A final clock mechanic completes the picture: if a regional center is terminated and the investor reinvests to preserve eligibility, proposed 8 CFR 216.6(g)(4) runs a new two-year period from the subsequent investment.

Forward-Looking or Backward-Looking? Mostly Forward, With a Catch

Operators need to know not just what the standard is, but when it starts applying, because job-creating entity partnerships are being selected today.

The rule states that “DHS proposes that this rule be implemented prospectively to petitions and applications filed on or after its effective date.” The exceptions matter, and two of them are contested on other fronts, but for the sustainment question they cut more narrowly than the anxiety suggests. Exception two provides that “Where this proposed rule would codify a post-RIA practice or policy that DHS has been implementing since the RIA went into effect, DHS will continue to apply such policies as codified.” And the preamble tells us exactly what current practice is, citing USCIS’s own public guidance (last updated July 16, 2024): the clock starts when “the full amount of qualifying investment is contributed to the new commercial enterprise and placed at risk under applicable requirements, including being made available to the job-creating entity, as appropriate” (91 FR 40705-06). That is the contribution-plus-availability standard. Nowhere does the rule label the deployment reading as current practice; it appears only in “DHS proposes” framing. A stricter transfer standard, if that is what the preamble language implies, would be new, and therefore prospective. One drafting caveat: commentators have flagged that the proposed applicability text does not restate the prospective default provision-by-provision, a gap worth asking DHS to close in comments.

So the doctrinal picture favors investors with pending petitions. The practical picture deserves a caveat: adjudicators track proposed standards before they are final, and preamble language has a way of appearing in Requests for Evidence ahead of schedule. For operators structuring deals this quarter, the prudent course, and we label it prudence rather than legal necessity, is to underwrite so that even the strictest vocabulary is satisfied. Select job-creating entity partners whose capital schedules can absorb full, prompt deployment of investor capital. Document, at subscription, that capital is committed to and available to the job-creating entity. Structure escrow with the filing-date requirement in mind. And in high unemployment area projects, treat transfer timing as its own compliance deadline, since those rules turn on capital being provided while the designation is valid.

The Fix Is Simple, and We Are Asking for It

None of this requires DHS to rethink policy. It requires DHS to pick words and use them consistently. In our comment letter, due with all comments on or before August 31, 2026, under DHS Docket No. USCIS-2026-0100, Behring is asking the agency to: conform the four preamble passages to the regulatory text they describe; define “made available to the job-creating entity(ies)” in 204.401, so that capital contributed under a binding subscription that the job-creating entity’s capital plan relies on qualifies; confirm the harmonized at-risk reading, committed and available rather than parked, consistent with the precedent decisions this rule would codify; and clarify how escrowed capital satisfies the filing-date requirement in 204.407(b)(1).

A proposed rule is exactly that, a proposal. This is the window in which drafting problems get fixed cheaply. If the same unreconciled vocabulary reaches a final rule, it becomes five years of Requests for Evidence.

Investors should consult their own immigration and securities counsel about how the sustainment requirements apply to their situation. For background, see our EB-5 explainer, our guide to the I-526E petition, and our companion analyses of the September 30, 2026 grandfathering deadline and the January 1, 2027 investment amount adjustment.

Important Disclosures

This article is provided for general educational purposes only and does not constitute legal, tax, investment, or immigration advice. Consult your own immigration and securities counsel about your individual circumstances.