"USCIS chose to change the sustainment period by guidance memo rather than by
regulation. While it is very clear that USCIS intended its guidance to be its
final word on the subject without promulgating a regulation, it chose not to
repeal the existing regulation that stated – – and still states – – that the
investment must be sustained at risk during the two years of conditional
residence at a minimum. When USCIS published its revised and updated EB-5 Policy
Manual on October 26, 2023, 15 days after its guidance memo on the sustainment
period, it continued to include the requirement that the investment must be
sustained at risk during the 2 years of conditional residence. That leaves my
investor clients in a real conundrum. Do they follow the regulation, which is
the law? Do they follow the USICS Policy Manual, which is USCIS’ official
statement of its policy? Or do they follow the guidance memo, which is not the
law and which is not contained in the USCIS Policy Manual, but which is USCIS’
statement of the policy that it intends to follow?"