USCIS Proposed EB-5 Regulations Under the RIA: What the Rule Would Change and What Comes Next

More than four years after Congress passed the EB-5 Reform and Integrity Act of 2022, USCIS has taken its first major step toward writing the law into formal regulations.

On July 2, 2026, the Department of Homeland Security published a Notice of Proposed Rulemaking in the Federal Register titled “EB-5 Reform and Integrity Act of 2022; Ensuring the Integrity of the EB-5 Program; Automatic Revocation of Petitions for Immigrant Classification.” The rule is listed under RIN 1615-AC94 and would amend DHS regulations at 8 C.F.R. Parts 204, 205, 216, and 235.

A Notice of Proposed Rulemaking, or NPRM, is not a final regulation. It explains how an agency intends to change or clarify its rules and invites the public to respond before anything takes effect. The 60-day comment period for this proposal closed on August 31, 2026. DHS must now review the comments it received before deciding what to carry into a final rule, and it has not announced when that rule will be issued.

Until a final rule is published, the NPRM has no legal force. Existing statutes, regulations, and USCIS policy guidance continue to govern EB-5 filings. But the proposal is the clearest signal yet of how USCIS reads the RIA, and several of its provisions would have real consequences for investors, regional centers, and developers.

“This proposed rule is a major step in the post-RIA development of the EB-5 program,” explains Sam Silverman, managing partner of EB5AN. “Investors and regional centers should treat the comment period seriously because the final regulations could shape how EB-5 filings, compliance, and investor protections are handled for years to come.”

Below, we summarize the most important provisions and explain what they could mean in practice.

Provisions That Would Help Investors

Not everything in the proposal adds burden. Two provisions would resolve long-standing sources of uncertainty.

A Defined Validity Period for TEA Designations

Investing in a targeted employment area qualifies an investor for the reduced $800,000 investment amount. Under the proposal, a TEA designation approved through Form I-956F would remain valid for two years, and a timely extension request filed before expiration would extend it for another two. Regional centers and investors would know at the outset how long a designation can be relied on.

At the same time, DHS appears to be moving toward a tighter link between a project’s location and the census tracts used to support a high-unemployment designation, and it has asked for comments on the data sources used to calculate weighted unemployment averages. Some urban projects that depend on broader tract configurations could be affected. Rural designations, which turn on population data rather than unemployment calculations, are generally simpler to confirm and would be largely untouched.

Project-Level I-829 Evidence Reviewed Once

Today, every investor in a project submits the same business plan, economic report, and job-creation records with their Form I-829. A project with 100 investors generates 100 copies of the same evidence.

The proposal would instead require the regional center to file an amendment to the project’s Form I-956F at least 90 days before the first investor becomes eligible to file Form I-829. USCIS would review the project-level evidence once. If approved, individual investors would only need to show that their own capital remained invested for the required period. This would cut duplicative filings, produce more consistent decisions, and give investors earlier confirmation that the project has met its obligations.

Provisions That Would Tighten the Rules for Projects

No Job-Creation Credit for Repaid Bridge Financing

This is the most consequential change for project sponsors. EB-5 capital is rarely available on day one of a project, so developers commonly begin construction with temporary debt or equity and replace it with EB-5 funds as investors subscribe. USCIS has long allowed investors to count the jobs created by that bridge-funded work once EB-5 capital repaid the bridge.

The proposal would generally eliminate that credit. Importantly, the change would apply prospectively only: investors who file Form I-526E before a final rule takes effect could continue to rely on current policy.

If adopted as written, the restriction could make well-capitalized projects harder to finance with EB-5 and, counterintuitively, favor projects that cannot start without EB-5 money. The preamble acknowledges that DHS is uncertain how best to handle bridge financing and specifically requests comments, so this provision may look different in the final rule.

A “But For” Test for Job Creation

The proposal would require claimed jobs to be tied to the investor’s capital under a “but for” standard—the jobs would not exist without the EB-5 investment. Applied strictly, that test could penalize responsible project structures. A sound project should be able to finish even if it raises less EB-5 capital than planned, but a rigid reading could treat that contingency planning as evidence that the EB-5 funds were not necessary.

A 90-Day Redeployment Window

When a project repays EB-5 capital before an investor’s sustainment period ends, the funds must be redeployed into another qualifying investment. Current policy allows a commercially reasonable period, which in practice has often meant about a year. The proposal would generally require redeployment within 90 days.

Identifying a suitable investment, negotiating terms, completing underwriting, preparing documents, and giving investors an opportunity to vote is difficult to do well in 90 days. A deadline that short could push new commercial enterprises toward rushed decisions that increase financial risk for the investors the rule is meant to protect

The Two-Year Sustainment Period

USCIS policy guidance issued in October 2023 set the sustainment period at no less than two years from the date funds are made available to the job-creating entity. The proposal appears to support that two-year framework, but it still does not clearly define when the period begins. That ambiguity matters because a different interpretation applied years later could create an I-829 problem for investors who structured their investment correctly at the time.

Expanded Compliance and Source-of-Funds Obligations

A Broader Definition of “Persons Involved”

The RIA requires certain people involved with a regional center, NCE, or JCE to establish eligibility through Form I-956H, including biometric screening. The statute appears aimed at those who make investment decisions. The proposal would sweep in administrators, board members, general and limited partners, managers, officers, and owners—and, depending on how it is applied, potentially investors themselves.

The rule would also require an amendment whenever a covered person joins, leaves, or changes roles, and USCIS could pause adjudications for the regional center while the amendment is pending. Even minor ownership changes could interrupt processing.

Source-of-Funds Review Beyond the Investor’s Capital

Investors already must document the lawful source and path of their funds. The proposed language, however, could be read to require source-of-funds evidence for non-EB-5 capital in a project—for example, the origin of every dollar financing a hotel, or the personal finances of a direct EB-5 investor’s U.S. co-owners. Those parties may refuse to provide records, which could discourage developers and business owners from accepting EB-5 capital.

The proposal would also give USCIS authority to require a separate source-of-funds analysis for currency exchangers used by investors from countries with capital controls, with an exception for exchangers licensed and regulated by a U.S. or foreign government authority. For unlicensed intermediaries, the same $800,000 could effectively need to be sourced twice.

Pre-RIA Regional Centers Would File Form I-956

Regional centers designated before the RIA have operated under the Behring settlement since 2022. The proposal would require them to file Form I-956 to continue doing business, but it does not say when the filing would be due, what happens while it is pending, or whether related project and investor filings could still be adjudicated in the meantime.

Enforcement Provisions That Could Affect Investors Directly

Loss of Work Authorization After an I-829 Denial

An I-829 denial is not the end of the road. USCIS issues a Notice to Appear, and the investor can seek a fresh review before an immigration judge, where the government bears the burden of proof. Under current practice, investors continue to receive I-551 stamps and may work while the case is pending.

The proposal could remove that protection. An investor could be barred from working for the two to four years an immigration-court case often takes—even when the denial stems from project-level misconduct outside the investor’s control or from USCIS revisiting a source-of-funds finding it approved years earlier.

Retroactive National-Interest Determinations

The RIA allows USCIS to deny a case it deems contrary to the national interest or a threat to national security, and those determinations are discretionary and not subject to judicial review. The proposal would apply that authority to petitions filed before the RIA became law in 2022. Investors who invested, immigrated, and built their lives around approvals issued under the prior framework could be subject to a standard that did not exist when they filed.

Stronger Penalties and Compliance Tools

More broadly, DHS proposes detailed rules for regional center operations, audits, site visits, and promoter registration, backed by penalties, suspensions, terminations, debarments, and petition-level consequences for noncompliance. For investors, this makes regional center and project due diligence even more important, since a weakness at the sponsor, NCE, or JCE level could translate into immigration risk.

What the Proposal Leaves Unresolved

For all its length, the NPRM is silent on two issues the industry has been waiting on.

The RIA created an infrastructure-project category with its own 2% visa set-aside, but USCIS has still not explained what qualifies. Rural and high-unemployment status can be evaluated from geographic and economic data before filing; infrastructure status cannot be relied on with confidence until Form I-956F is approved.

The RIA also created protections for good-faith investors harmed by regional center termination or the debarment of an NCE or JCE. Some of those protections depend on USCIS formally debarring the entity—yet the proposal sets no standards, procedures, or timelines for debarment. USCIS could conclude that a project involved fraud and deny investor petitions without ever issuing the debarment decision that would unlock the protections Congress wrote for innocent investors.

What Happens Next

With the comment period closed, the rulemaking is in DHS’s hands. The agency must consider and respond to substantive comments before publishing a final rule, and that process typically takes many months. Provisions may be revised, narrowed, or dropped, and the final regulation could differ significantly from the proposal.

Three points matter for investors deciding whether to move forward now.

First, nothing in the NPRM is in effect. Petitions filed today are adjudicated under current law and policy.

Second, the proposal states that the rule would generally apply only to petitions filed on or after its effective date. Investors who file Form I-526E before a final rule takes effect should therefore be able to rely on existing bridge-financing policy—one more reason timing matters for anyone evaluating a project that used bridge capital.

Third, the direction of travel is toward a more formal, compliance-heavy program. The projects most likely to withstand that environment are those with straightforward TEA eligibility, conservative job-creation cushions, transparent capital structures, and experienced regional center oversight. That is true today, and it will be more true under whatever final rule emerges. It is also worth remembering that these proposed rules are separate from the September 30, 2026, grandfathering deadline under the RIA, which continues to apply regardless of the rulemaking timeline.

EB5AN will continue to monitor the rulemaking and report on any final rule when it is published. In the meantime, investors with questions about how the proposal could affect a pending or planned filing should consult experienced immigration counsel, and we invite you to watch our full webinar on the NPRM or schedule a free consultation with our team.