Why EB-5 Project Selection Could Become More Important Under the Proposed New Rules

Selecting an EB-5 project requires an investor to assess much more than the development’s location, market, or projected returns. The project must support the investor’s immigration case, create enough qualifying jobs, comply with USCIS requirements, and preserve a credible path to repayment. Weakness in any one of those areas can affect an investor’s EB-5 journey long after Form I-526E is filed.

The proposed DHS regulations could make that assessment more important than ever.

On July 2, 2026, the Department of Homeland Security published a 127-page Notice of Proposed Rulemaking (NPRM) at 91 FR 40676–40802. Issued under DHS Docket No. USCIS-2026-0100, the proposal would amend 8 CFR parts 204, 205, 216, and 235 to implement major provisions of the EB-5 Reform and Integrity Act of 2022, which became law on March 15, 2022.

Written comments are due August 31, 2026.

Although the NPRM is not final and does not change current requirements by itself, it shows how DHS may regulate the post-RIA EB-5 program. The proposal would require a fuller project record, more formal regional center oversight, tighter fund controls, timely amendments, and greater readiness for audits.

Investors would have more reasons to choose strong EB-5 projects supported by credible regional centers over weaker offerings that lack full compliance with USCIS standards.

In this post, we’ll examine a few of the proposed changes regarding EB-5 projects—and what these changes could mean for EB-5 applicants looking for the best possible investment.

Form I-956F Would Remain Important—but Investors Must Still Evaluate Financial Strength

For each EB-5 offering, the designated regional center files Form I-956F, Application for Approval of an Investment in a Commercial Enterprise. The filing presents the business plan, offering and organizational documents, financing structure, job-creation analysis, material disclosures, and information about the entities and individuals responsible for the project.

USCIS’s published processing-time methodology states that adjudication of Form I-526E depends on adjudication of the associated Form I-956F.

The proposed regulations would preserve that relationship, which makes the status and quality of the I-956F filing crucial to every investor in the offering.

When USCIS approves Form I-956F, it has reviewed the project-level EB-5 structure and found the filing approvable on the record presented. But if the filing remains pending, that determination is unresolved, so investors should look closely at the regional center’s approval history, any known Request for Evidence (RFE) or Notice of Intent to Deny (NOID), and whether the current filing follows structures the regional center has already taken through approval.

Still, it’s important to keep in mind that an I-956F approval does not amount to a USCIS evaluation of the project’s commercial prospects. Form I-956F approval does not establish that construction will finish on schedule, that every projected job will be created, that the borrower will repay the EB-5 loan, or that the project will remain unchanged.

It is an important immigration factor, but it cannot replace a separate review of the project’s financing, execution, and repayment risk.

The Proposed Project Application Would Require a More Complete Record

Under the NPRM, a regional center filing Form I-956F would need to establish that the project is realistic, credible, and capable of satisfying the investment and job-creation requirements. Each application would generally cover one new commercial enterprise, although that enterprise could work with more than one job-creating entity.

The proposed business-plan provisions would require a detailed account of the project’s nature, timeline, and projected size; its sources and uses of funds; the market and competitive environment; required and obtained permits; construction and hiring schedules; and the experience of the owners and managers.

The filing would also need to support the economic assumptions and explain how the proposed investment is expected to produce qualifying jobs.

Investors should use that record to test whether the offering documents describe the project as it actually exists. The offering memorandum, business plan, economic report, financing documents, and other key documents should be consistent with one another and with current project conditions.

Material Changes and Amendments Could Affect Investors After Filing

The NPRM would require amendments when material changes affect eligibility, including certain changes to ownership, project location, financing sources, separate accounts, escrow arrangements, or job-creation evidence.

Because development projects routinely undergo budget revisions, refinancing, scheduling changes, ownership transfers, and adjustments to construction plans, the regional center would need to be able to distinguish an ordinary development issue from a change that affects the EB-5 case.

Under this stricter framework, the regional center would need to determine how a change affects eligibility and job creation, obtain the supporting documents, revise the economic or legal analysis when necessary, and file the appropriate amendment before the issue reaches an investor petition.

The proposal also contemplates a project-level submission before the first investor becomes eligible to file Form I-829. USCIS could review the common project evidence once rather than receive substantially the same record from every investor, but the regional center would need to track investor timelines and assemble a complete, current project record before the first I-829 filing window opens.

Investors should therefore examine how the regional center monitors construction draws, project reports, financing changes, ownership, and the development plan, as well as who updates the economic analysis and preserves the records needed at the I-829 stage.

Those responsibilities could become an important factor in an investor’s immigration outcome.

Financing and Job Creation Would Need to Withstand Closer Review

Every EB-5 investor must be credited with at least 10 qualifying jobs. At the Form I-956F stage, the project must present a defensible methodology for calculating those jobs; at the Form I-829 stage, the record must show that the required jobs were created or can otherwise be credited under the applicable rules.

The NPRM would narrow several approaches that projects have used to support job creation. DHS proposes to eliminate the use of repaid bridge or interim financing as a basis for job-creation credit, prohibit visitor-spending methodology, and remove job-sharing from the definition of full-time employment, while permitting tenant-occupancy methodology under specified conditions. Whatever language appears in any final rule, the proposal favors a closer connection between qualifying expenditures and the jobs claimed.

That makes a project’s economic report a crucial document. Investors should determine how many jobs are projected for each investor, how many have already been created, which expenditures produce the job count, and whether the project could still qualify every investor if USCIS excluded part of the spending or applied a more conservative assumption.

A substantial job cushion can absorb delays, budget changes, and disputes over methodology, but a project that only marginally exceeds 10 jobs per investor cannot.

Separate Accounts, Fund Administration, and Regional Center Monitoring

The NPRM would add detail to the RIA’s separate-account and fund-administration requirements. EB-5 capital would need to move through separate accounts at insured, federally regulated financial institutions.

The project application would need to document those accounts and the fund-administration arrangement unless the new commercial enterprise uses the statutory audit alternative.

A properly maintained transaction record should show when the investor’s capital was received, when it left escrow, where it was transferred, which project expenditure it funded, and when any amount was returned. The same record may later be relevant to the project application and the investor’s Form I-829.

The proposal would also require regional centers to maintain procedures for overseeing associated new commercial enterprises and job-creating entities and for addressing immigration, securities, criminal, labor, and other federal and state requirements.

These oversight requirements could also lead to more frequent reporting to investors.

Audits, Site Visits, and Enforcement Raise the Cost of Weak Compliance

The RIA requires USCIS to audit every designated regional center at least once every five years. The NPRM would place those audits within a broader enforcement framework and expand the role of site visits, allowing USCIS to visit regional centers with notice and new commercial enterprises or job-creating entities without notice.

The proposal would also require USCIS, beginning March 15, 2024, to conduct a site visit before adjudicating certain Forms I-829 filed by regional center investors. The March 15, 2024 date comes directly from the RIA, which was enacted on March 15, 2022, and provided that this site-visit requirement would take effect two years after enactment.

DHS could issue notices of violation, impose monetary penalties, suspend or terminate regional centers, and debar entities or individuals. For certain violations, USCIS could impose on a regional center a monetary penalty of up to 10% of the total EB-5 capital invested in the regional center’s new commercial enterprises or job-creating entities directly involved in the violations.

Those consequences can reach an investor who has fully documented a lawful source of funds and complied with the individual filing requirements. Misconduct or noncompliance by the regional center or its entities can still result in an RFE or a denial, which is why diligence must cover the people and entities responsible for the offering as carefully as the development itself.

The RIA and the NPRM provide possible protections for certain good-faith investors affected by termination or debarment, but using those protections may involve additional costs, reinvestment, or months of delay. They offer a possible path forward after a serious failure; they do not make weak project selection less costly.

What Investors Should Review Before Committing Capital

Regardless of the final version of the proposed EB-5 rules, EB-5 investors should always examine a project’s immigration compliance, project execution, and financial strength. Specifically, investors should review:

• Form I-956F status, the filing date, any known RFE or NOID, and the regional center’s record of project approvals and denials.
• Projected and already-created jobs, qualifying expenditures, the assumptions used in the economic model, and the job cushion for each investor.
• The complete capital stack, committed non-EB-5 financing, cash developer equity, the priority of EB-5 capital, collateral, guaranties, maturity, extension rights, and the repayment source.
• The regional center’s procedures for monitoring the project, reporting to investors, evaluating material changes, filing amendments, preparing for audits and site visits, and assembling Form I-829 materials.

What EB5AN’s Record Shows

As of August 2026, EB5AN has received 33 Form I-956F approvals for projects it manages and has maintained a 100% USCIS approval rate across its managed regional center project filings. Since the RIA took effect, more than 800 investors in EB5AN-sponsored projects have received Form I-526E approval, and those post-RIA projects have created more than 16,000 qualifying jobs.

The 33 project approvals cover different asset classes, markets, and financing structures; the I-526E approvals show that those project filings have supported investor adjudications; and the job-creation record addresses the evidence investors will ultimately need when they file Form I-829.

Past results do not guarantee the performance or repayment of any future offering, and every project requires its own legal and financial review. They do, however, show whether a regional center has repeatedly selected projects, prepared filings, supported job-creation analysis, monitored execution, and assisted investors under the current program.

Next Steps for EB-5 Investors

DHS may revise, narrow, or remove provisions after the August 31, 2026, comment deadline, and the NPRM does not yet have the force of a final rule. Even so, the notice shows the agency’s emphasis on credible project records, traceable capital, supportable job creation, active regional center oversight, and consequences for noncompliance.

Before committing capital, an investor should understand how the project will be completed, how the required jobs will be created, how EB-5 funds will be controlled, how material changes will be handled, and where repayment is expected to come from.

Form I-956F approval remains important, but the strongest projects pair USCIS-compliant documentation with strong financials and a regional center capable of supporting investors through permanent residence. To review available EB5AN projects and discuss project-level immigration and financial risk, schedule a free consultation with EB5AN.