A recent US federal court ruling brought a significant change for foreigners seeking permanent residency in the United States through the EB-5 visa—the immigrant investor visa.

The ruling, issued in August 2025 by Judge Ana C. Reyes, confirmed that, for investments made after the passage of the EB-5 Reform and Integrity Act (RIA) in March 2022, the capital only needs to remain “at risk” for two years from the date it is invested.

Previously, the period could be extended indefinitely, often tied to the approval of a conditional green card, which kept investors’ money locked up for several years.

Why this ruling is important

The EB-5 program, created in 1990, allows foreigners to obtain a green card by investing a significant amount of money in projects that generate jobs in the US.

However, for decades, one of the biggest criticisms was the lack of clarity about how long capital needed to be “at risk” to meet USCIS (US Citizenship and Immigration Services) requirements.

With the new judicial interpretation:

• Investments made after March 2022: 2-year term from the moment the money is actually invested in the project.
• Investments made before the RIA Act: continue to follow the old rule, with the term starting from the date of obtaining conditional residency and depending on the progress of immigration proceedings.

The case in court

The decision came after a dispute between:

• IIUSA (Invest in the U.S.A.): an association representing regional investment centers and advocating for the maintenance of the old rules.
• AIIA (American Immigrant Investor Alliance): an investor advocacy organization that supported the interpretation of a reduced term to two years.

The court rejected the regional centers’ argument and upheld the current USCIS policy, solidifying the understanding that the RIA Act effectively changed the investment support term.

Immediate Impacts for Foreign Investors

• Greater predictability: reduces uncertainty about how long capital will be tied up.
• Lower financial risk: investors will be able to recover or reinvest capital sooner.
• Greater attractiveness for EB-5: the change may increase interest from new investors.

Next Steps

USCIS will create formal regulations to implement the decision, including:

• Publication of proposed rulemaking (NPRM).
• Public comment period.
• Issuance of final rules.

This process may extend until 2027, but the current rules (2-year deadline for post-RIA) are already in effect.

EB-5: An Uncertain Future?

Despite the victory for investors, there is debate in the political arena about the program’s future. President Donald Trump has already signaled his intention to replace the EB-5 program with a model called the “Trump Gold Card,” which would require a direct investment of US$5 million paid to the U.S. government.

For those considering applying for the EB-5 visa, this decision offers a more favorable and predictable scenario. This is a strategic time to evaluate investment opportunities before any more drastic changes to the program’s rules.