Diversity Visa Issuance Resumes Under Court Order

Policy Alert

The bottom line for employers: the Department of State has announced it will comply with a federal court order ending its pause on Diversity Visa (DV) issuance, restoring processing for DV selectees.1 DV numbers are a statutorily separate allocation, so this does not directly reduce employment-based visa numbers — but the resumption of DV issuance may increase workload at some posts, potentially affecting scheduling or processing times for EB-5, EB-1, EB-2, and EB-3 applicants. Employers with executives, investors, or their family members in the consular pipeline should anticipate possible scheduling pressure at high-volume posts in the closing weeks of fiscal year 2026 and monitor the September and October Visa Bulletins and DOS/consular-processing updates.

DOS Resumes DV Issuance — Leaving a Compressed Window Before the FY 2026 Deadline

The DV program makes up to 55,000 immigrant visas available annually under INA § 203(c).2 Critically, diversity visas for a given program year generally must be issued by the end of that fiscal year — September 30 — after which unissued numbers for that year's selectees ordinarily lapse. Following the August 28, 2026 court order and DOS's subsequent implementation guidance, the remaining weeks of FY2026 leave a highly compressed window for DV adjudication and issuance before the statutory deadline. The practical concern for employment-based applicants is not a reduction in EB visa numbers, but the possibility of increased workload or scheduling pressure at individual consular posts during the compressed end-of-fiscal-year DV processing period.

DV Numbers Are Statutorily Separate — but Consular Capacity May Not

Employers should distinguish between what the resumption does and does not affect:

Resource Effect of DV Resumption on EB Categories
Annual visa numbers None directly — the EB limit under INA § 201(d) is a separate allocation from the DV limit under INA § 203(c)
Consular interview slots Potentially overlapping — increased DV activity during the final weeks of FY2026 may affect workload or scheduling capacity at individual posts
Visa Bulletin cutoff dates Indirect — EB cutoff dates are determined by employment-based visa availability and demand; "Current" describes one month only and may retrogress

For employers, the practical exposure is timing risk: a beneficiary whose EB priority date is current this month is not guaranteed that it remains current next month, and interview scheduling delays can push a case past a favorable Visa Bulletin window.3

For EB-5 Investors, September 30, 2026 Remains the Operative Planning Date

The DV development lands weeks before a date with far greater EB-5 consequence. Under INA § 203(b)(5)(S), regional center petitions filed on or before September 30, 2026 are protected from a future lapse of the regional center program — meaning a qualifying Form I-526E may continue to be processed even if the Regional Center Program later expires.4 That protection covers program-lapse risk only; it does not lock in investment thresholds or exempt a petition from otherwise applicable rules.

A separate regulatory development is also relevant to EB-5 planning. DHS's EB-5 proposed rule, published July 2, 2026 (Docket No. USCIS-2026-0100; comment period closed August 31, 2026), would implement and codify provisions of the EB-5 Reform and Integrity Act of 2022 (RIA), including the existing $800,000 TEA/infrastructure and $1,050,000 standard investment amounts, the statutory inflation-adjustment framework beginning January 1, 2027, and a proposed new $1,400,000 investment tier for qualifying high-employment areas.5 It would also tighten job-creation counting, including disallowing repaid bridge financing as a basis for qualifying jobs. The proposed rule changes do not alter the requirements for filings made today. Separately, the RIA's statutory inflation adjustment is scheduled to apply to petitions filed on or after January 1, 2027, making the filing date an important consideration for prospective investors.

What to Watch Over the Next Two Visa Bulletins

Employers should track three signals:

  • Movement or retrogression in EB final action and dates-for-filing charts for China- and India-born beneficiaries in the October and November 2026 bulletins;
  • Interview-scheduling notices at posts handling both heavy DV and EB caseloads, where employees awaiting immigrant visa interviews may see slippage; and
  • Any DOS guidance on how paused DV cases will be sequenced, which may indicate how long the capacity pressure persists into FY2027.

Employer Action Items

  • Inventory all employees and executives currently at the NVC or awaiting consular interviews and flag cases at posts likely to absorb DV surge volume.
  • Where a beneficiary is eligible for both adjustment of status and consular processing, reassess the choice in light of potential consular scheduling pressure.
  • Advise prospective EB-5 investors that a qualifying Form I-526E filed on or before September 30, 2026 may receive the statutory protection provided by INA § 203(b)(5)(S) against a future expiration of the Regional Center Program; that statutory protection is not available to qualifying petitions filed after that date.
  • Review the October and November 2026 Visa Bulletins before finalizing start dates, relocations, or travel for employees with pending immigrant visa cases.
  • Track the DHS EB-5 rulemaking (Docket No. USCIS-2026-0100) for a final rule, its effective date, and any applicability or transition provisions specifying which petitions would be subject to the final requirements.

This newsletter is for general informational purposes only and does not constitute legal advice. Attorney advertising. © The Peng Law Group.