On October 11, 2024 the U.S. Citizenship and Immigration Services, (USCIS), the American federal agency that oversees immigration, issued long-awaited guidance about the investment period (known as the “sustainment period”) required for EB-5, America’s residency by investment program.
The guidance stated that investors may receive back their required $800,000 capital after just two years from investing. While many in the EB-5 world have been waiting for USCIS to clarify the sustainment period requirement, the October 11 USCIS policy leaves open many questions, including whether the guidance itself was issued in accordance with proper procedures required under US law.
The official statute regarding EB-5 was updated with the passage of the “EB-5 Reform and Integrity Act of 2022” (the “RIA)” on March 15, 2022. As with the federal agency administering any official statute, USCIS must write formal regulations under a proscribed process. Only after a formal rulemaking process, which requires a public notice and comment process, do regulations become the rules under which the law is administered.
While EB-5 program participants have been asking USCIS to issue guidance and regulations, it is not clear that USCIS has the legal authority to change existing rules unless and until it follows the rule making process. This is especially true in cases where existing regulations can be read as consistent with the new statute, as in the case of the sustainment period.
The cause for this confusion is statutory language in the new law itself. The law requires that the would-be immigrant’s investment “is expected to remain invested for not less than 2 years.” The section of the EB-5 law regarding “removal of conditions”, or when the investor has a permanent green card, was edited to eliminate specific wording that the investor “sustain” the investment. The removal of conditions section, however, allows for an investor to have an extra year, beyond the initial two-year period of conditional residency, to prove job-creation only if they keep their capital invested.
It seems that USCIS interpreted these two provisions to require just two years of active investing. USCIS went further to require that the initial investment remain in the initial project until sufficient jobs have been created. However, the new law also provides for “redeployment” if an initial investment is repaid before an investor is qualified to be repaid.
A requirement to redeploy capital is illogical if the initial investment must satisfy the minimum sustainment period and job-creation requirements. The ability to withdraw capital after just two years seems illogical if the law allows an extra year to prove job-creation only if that capital remains invested for longer. When the RIA is read in its entirety, the new USCIS guidance does not seem to hold up.
The question of when the two-year investing timeline starts is also unanswered. The USCIS guidance indicates that the start date is when the full amount of the investment is “made available to the job-creating entity.”
Unanswered questions include:
These are all unanswered questions.
In conclusion, EB-5 project sponsors must structure the EB-5 instrument responsibly, and EB-5 investors should not just rush into a deal that promises money back in two years. For now, it seems safest to maintain the EB-5 investment in the initial project for at least two years after the full amount of the EB-5 funds have been transferred to the JCE/borrower. Investors should stay informed of ongoing developments about the sustainment period, as this issue is sure to come up, again, in courts or USCIS policy in the future. More importantly, no matter what may or may not have changed in the rules, EB-5 investors must evaluate the financial and immigration risks of potential investments thoroughly.
To learn more about the EB-5 Visa program and Peachtree’s EB-5 offerings, fill out our contact form.
At a recent panel discussion at the IIUSA East Asia Conference titled “The Impact of President Trump’s Immigration Policies on the EB-5 Regional Center Program,” Adam Greene, Executive Vice President of EB-5 at Peachtree Group, offered a clear and reassuring perspective for investors and industry professionals navigating the evolving U.S. immigration environment.
Greene, who also serves as Secretary and Treasurer of IIUSA, began by emphasizing Peachtree’s track record as a leading private equity real estate firm with a history of over $12 billion in transactions and 800 investments across the U.S. He noted that Peachtree entered the EB-5 market to bring institutional discipline, transparency, and security to investors—focusing exclusively on senior secured debt positions that prioritize capital protection while driving U.S. job creation.
Discussing the Trump Administration’s new “Gold Card” program, Greene reminded the audience that it remains an idea, not an implemented program. “The Gold Card doesn’t exist today,” he said, explaining that even if enacted, it would need to operate within the framework of existing U.S. immigration laws. Importantly for EB-5, those laws require investment in a for-profit enterprise that creates American jobs—making it unlikely the Gold Card could directly substitute or compete with EB-5. “EB-5 exists today and is backed by established law,” Greene added. “The Gold Card does not.”
Greene positioned EB-5 as the form of legal immigration that fits squarely within the Trump Administration’s priorities. “EB-5 is exactly the kind of immigration that makes sense in the ‘America First’ world—it’s legal, it’s job-creating, and it’s self-funding,” he explained. With the perception that illegal immigration is increasingly under control, he said the political focus is turning toward immigration that strengthens the U.S. economy.
He also highlighted IIUSA’s ongoing advocacy in Washington, D.C., which has helped lawmakers better understand EB-5’s impact on American job creation and development. “When we meet with congressional offices now, they no longer ask, ‘What is EB-5?’” Greene said. “They know it’s a program that works and creates results.”
In closing, Greene urged agents and investors alike to focus on working with credible partners who combine experience with integrity. “Track record matters,” he said. “What ultimately protects investors are good people and sound structures.”
As immigration policy evolves, Greene’s message was consistent and confident: EB-5 remains a proven, law-backed path to U.S. residency that continues to deliver value for investors and communities alike.
The new Trump Gold Card program was implemented by White House Executive Order (the ”EO”) on Friday, September 19, and further publicized on the Trump Card website (www.trumpcard.gov) after several months of preparation.
The Gold program offers a pathway to U.S. residency distinct from the EB-5 visa. Instead of requiring investment in a job-creating project which applicants can receive back within a few years, individuals can qualify by making a $1 million contribution (or $2 million if sponsored by a company), which they never get back.
Unlike EB-5, which is tied to new job creation and regional center investments, the Gold Card is tied to existing EB-1 or EB-2 categories, which also have quota limits like EB-5, and have existing backlogs. The Gold Card does not provide favorable tax treatment, and applicants must pay an additional processing fee and undergo extra vetting. It is also unclear whether derivative family members are included under a single $1 million contribution or if each must contribute separately.
The bottom line: people considering immigrating to the U.S. based on the EB-5 immigrant investor visa should apply now.
Trump's executive order requires the government to implement the Gold Card within 90 days of publication, so by December 18, 2025. While the EO includes an obscure mention that the government will “Consider expanding the Gold Card program to visa applicants under EB-5", it remains unclear how this could happen by executive order rather than by passage of legislation by Congress. Current law provides that any EB-5 petitioner submitting their petition before September 30, 2026 will be adjudicated under existing rules.
The most conservative approach for those considering EB-5 would be to apply before the December 18, 2025 deadline for Gold Card implementation.
The Trump Card website also refers to a Platinum card as “coming soon”, which would require a $5 million contribution, and offer recipients exemption from US income taxes on non-U.S. income and allow recipients to spend up to 270 days in the US. Note that the Platinum Card has not yet been implemented.
If you are considering the EB-5 immigration by investment visa, Contact Peachtree Group to learn more about the process.
As Chair of the EB-5 Investor Team at Klasko Immigration Law Partners, my team is frequently retained to handle complex investor cases, review filings prepared by other firms, and respond to USCIS challenges. I’ve guided hundreds of investors through the EB-5 process, including the often nerve-wracking step: the visa interview.
I also know the immigration journey on a personal level. As an immigrant myself, I understand how overwhelming the process can feel—not just for the applicant, but for their entire family. That’s why I want to demystify the EB-5 visa interview for you. With preparation and the right mindset, this step should feel like a confirmation of the hard work you’ve already done, not a stumbling block.
We’re going to limit discussions to interviews at the U.S. consulates overseas, as currently, the U.S. Citizenship and Immigration Service does not routinely interview EB-5 based adjustment applicants.
Where the Interview Fits in the EB-5 Process
For those going through consular processing, the EB-5 interview occurs only after your I-526 petition has been approved and you’ve submitted the DS-260 immigrant visa application. The National Visa Center schedules the interview at the U.S. embassy or consulate in your home country or country of residence
It’s important to remember that this is not a job interview, nor is it an exam designed to test your knowledge of immigration law. The officer’s role is simply to confirm the information you have already provided and ensure your eligibility for permanent residency.
Questions You May Be Asked
During the interview, the consular officer will verify your identity, confirm the lawful source of your investment funds, review your and your dependents’ eligibility, and ask questions about the project you invested in. Although every interview is unique, there are common themes. You may be asked about your personal and professional background, immigration history, your reasons for choosing a particular EB-5 project, how you earned or obtained your investment capital. Dependents are usually not asked questions about the EB-5 investment.
I always tell clients to answer questions directly and concisely. Long, overly detailed answers often create confusion or invite unnecessary follow-ups. At the same time, avoid rehearsing your answers so heavily that they sound scripted. Officers can usually tell when someone is reciting memorized lines, and it can come across as disingenuous. Instead, know your story and speak naturally.
What to Bring to the Interview
Being organized is critical. Missing or disorganized paperwork can create delays. You will need passports for all family members, your DS-260 confirmation page, the interview appointment letter, original or certified civil documents with translations where required, your I-526 approval notice and, depending on the consulate, proof of both your investment and the lawful source of your funds.
If you rescheduled your interview, it’s important to ensure your police clearance letters and medicals are still valid at the time of the interview. Note: Applicants can only schedule a medical exam once the interview has been scheduled.
Mistakes That Can Cause Problems
The most common issues I see at interviews are inconsistencies between what is said and what was included in previous filings, including the I-526 petition; vague or confusing explanations about the source of funds; missing documents, and unfamiliarity with the chosen project.
These mistakes are easily avoidable. The key is to know your case, review your documentation, and be ready to explain your answers in plain language.
The Value of Preparation with Counsel
While it is possible to prepare on your own, many investors find reassurance in conducting an interview prep with their attorney. I often hold these sessions with clients, going over the types of questions that can be asked.
This preparation not only builds confidence but also helps investors practice speaking naturally rather than reciting memorized responses. It also ensures dependents are ready for their interview.
After the Interview
There are three typical outcomes.
A Practical Checklist
At the end of the day, good preparation comes down to being organized and informed. Here is a high-level checklist of things to bring that I recommend to my clients.
The above is not a comprehensive list nor is it meant to be legal advice. As each person’s personal and immigration history is different, there may be additional documents and additional information which need to be provided for this process. The EB-5 interview should not be seen as a barrier but as the final confirmation of your journey toward U.S. residency.
In my experience, investors who approach the interview with clarity, organization, and calm confidence find it to be a surprisingly straightforward step. Prepare carefully, ensure your medical exam and police certificates are current, and remember that the officer is there to verify your eligibility. With the right preparation, you can walk into your interview assured and walk out one step closer to achieving your immigration goals.
About the Author
Anusree (Anu) Nair is a Partner at Klasko Immigration Law Partners in Philadelphia and Chair of the firm’s EB-5 Investor Team. She leads a dedicated group of attorneys who assist investors in securing U.S. residency through EB-5regional center and direct investments. Recognized nationally for her command of investor-related immigration issues, she is frequently called upon to review complex EB-5 cases and respond to Notices of Intent to Deny (NOIDs). Anu also leads the EB-1/O-1 team, assisting highly skilled professionals in science medicine, and the arts. As an immigrant herself, Anu brings both professional expertise and personal understanding to her work helping clients achieve their immigration dreams.
EB5 Visa Interview Guide
Preparing for Your EB-5 Visa Interview: A Complete Guide
