On July 29, 2025, U.S. District Court Judge Ana Reyes issued a pivotal order in the closely watched lawsuit filed by Invest in the USA (IIUSA) challenging USCIS’s interpretation of when the EB-5 investment sustainment period begins.
The decision confirms what Behring predicted over a year ago in our April 2024 analysis:
“USCIS will rely on the courts’ traditional deference to a federal agency’s role and responsibility to interpret and implement a federal statute.” – Behring’s April 2024 forecast
Key takeaways from the court order:
IIUSA’s Motion for Summary Judgment was dismissed as moot because USCIS is already in the process of issuing a formal rule through the Notice of Proposed Rulemaking (NPRM) process. USCIS has committed to publishing an NPRM by November 2025, which will:
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- Clearly define the EB-5 sustainment period in regulation.
- Invite public comment from all stakeholders.
- Establish binding rules instead of interpretive guidance.
Behring is not a member of IIUSA and does not support this lawsuit. Instead, we have designed nimble, investor-focused options that already align with USCIS’s clarified sustainment period. Our RISE Fund uses a portfolio loan of smaller assets to spread robust job creation across multiple projects. This approach allows us to meet deployment and job creation requirements more quickly than traditional single-project models, giving investors the shorter timelines they prefer — without sacrificing compliance or quality.
For EB-5 investors, this reinforces Behring’s long-standing position: the agency has the authority to interpret the Reform and Integrity Act (RIA) and is now moving toward formalizing those rules.
Why this matters:
It’s another example of Behring’s accuracy in reading the EB-5 market and regulatory trajectory — and why investors should anchor their strategies in informed, forward-looking guidance.
Read our in-depth FAQ and investor analysis of the decision here: Behring Regional Center’s FAQ on the Sustainment Period Lawsuit
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FAQs
What does the court decision mean for EB-5 investors?
The court validated Behring’s position: USCIS has discretion to interpret EB-5 law and is now formalizing its policy through rulemaking. The November 2025 NPRM will define sustainment period requirements in regulation, invite public comment, and provide clarity investors can rely on.
How did Behring’s analysis prove correct?
In April 2024, we explained that Congress shortened the sustainment period to end indefinite redeployment cycles and restore investor control. We predicted USCIS would formalize its interpretation through a transparent rulemaking process — not through litigation wins or losses.
What is Behring’s position on the IIUSA lawsuit?
We are not a member of IIUSA and do not support this lawsuit. Instead, we created nimble, investor-focused solutions like the RISE Fund, which:
- Uses a portfolio loan of smaller assets.
- Spreads job creation across multiple projects.
- Enables faster deployment and a natural investment term.
This approach is designed for the shorter sustainment periods USCIS has clarified, without sacrificing compliance or project quality.
Why does Behring’s “investor-first” model matter?
By developing projects with predictable timelines and diversified assets, we protect investors from being locked into long, uncertain redeployments.
“The market is adequate to the task of determining a natural investment term for high-quality EB-5 projects, without further leveraging the journey of EB-5 investors.” – Behring EB-5 Analysis, April 2024
How does Behring stay ahead of regulatory changes?
We track EB-5 policy shifts in real time and build offerings around anticipated rules. The RISE Fund’s three-year minimum lock is already aligned with USCIS’s two-year sustainment interpretation — and flexible enough to adapt to the final rule.
What makes Behring different from other EB-5 operators?
- Proven Forecast Accuracy – From visa backlogs to litigation outcomes, our predictions are consistently validated.
- Investor-Centric Structures – Designed to meet compliance and investor timelines.
- Innovation – Products like the RISE Fund address both regulatory requirements and market demand.
How should investors act now?
- Consider filing under the current two-year sustainment rule to lock in a shorter capital-at-risk period.
- Watch for the November 2025 NPRM and participate in public comments.
- Choose a platform with proven foresight and adaptable investment structures.