Recently, DHS published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (applicants are advised to monitor closely the latest policy updates posted on the USCIS website at uscis.gov [2]), intended to implement the EB-5 Reform and Integrity Act of 2022 (RIA)—widely regarded as the most comprehensive regulatory restructuring of the program since its creation in 1990.1 For employers whose executives or executives' family members are pursuing EB-5 as a parallel green card strategy, the core takeaway is simple: nearly every change in the proposal would make future petitions harder, more expensive, or slower, while petitions properly filed before the effective date of the final rule should generally still be governed by the current framework.13
From the 2022 RIA to Comprehensive Regulatory Codification
3But the Act left several key questions unanswered—when the sustainment period begins to run, whether funds held in escrow count as invested, how jobs are counted, and how regional centers are regulated—leaving four years in which only policy manuals, AAO decisions, and industry practice could supply interpretation. This NPRM answers these questions with binding regulations, and does so in almost uniformly restrictive terms.1Before and After the Reform: Investment Thresholds, Job Creation, and the Investment Clock
Currently, investors face two tiers—the standard tier and the TEA (Targeted Employment Area) and infrastructure project tier (as provided under INA §203(b)(5)(C), applicants must consult the USCIS website at uscis.gov for the specific current statutory minimum investment thresholds [2])—with many projects relying on TEA qualification to apply the lower threshold. Under the proposal, authority to make TEA determinations would be further consolidated in USCIS, and pursuant to the relevant provisions of INA §203(b)(5)(C), DHS proposes to redraw the investment tiers for different employment areas and plans to introduce an automatic adjustment mechanism indexed to inflation, with the specific investment amount standards and effective dates to be governed by the final regulations ultimately published on the USCIS website at uscis.gov [2], adjusted automatically every five years.
The job creation rules would tighten in tandem. Repaid bridge financing—that is, temporary construction loans subsequently replaced by EB-5 capital—would no longer generate qualifying job counts, ending the structure on which most large regional center projects currently rely. The visitor-spending economic models common in hotel and retail projects would be prohibited, indirect job counts would be subject to a proportional cap, and the troubled-business job preservation pathway (which, under INA §203(b)(5)(A)(ii), previously allowed the requirement to be met by maintaining existing positions) would be eliminated entirely, requiring all applicants to create new positions.3
Source-of-Funds Review and Regional Center Oversight
As to emerging assets such as cryptocurrency used as invested capital, under the strict lawful source-of-funds provisions of INA §203(b)(5), applicants must provide complete tracing documentation meeting USCIS's official requirements; for the specific list of acceptable financial and tax documentation, applicants are advised to review the USCIS website at uscis.gov in detail before filing in order to ensure compliance and reduce the risk of a Request for Evidence [2].4 Under the integrity measures required by INA §203(b)(5)(F), regional centers must establish an independent Fund Administrator mechanism to oversee the flow of funds; for the compliance requirements and reporting regime governing fund transfers between the new commercial enterprise (NCE) and the job-creating entity (JCE), refer to the regional center compliance guidance published on the USCIS website at uscis.gov [2].3 DHS has expressly stated that it will substantially increase its investment in compliance review and enforcement targeting regional centers and related parties (for the specific procedures governing regional center audits and site inspections, see the USCIS website at uscis.gov [2])—these stringent regulatory measures will drive the industry to consolidate toward larger operators with stronger compliance capabilities.3
Why September 30 Is the Deadline That Really Matters
The NPRM does not take effect automatically. DHS must first review public comments, publish a final rule, and set an effective date. Given that the comment period closes on August 31, 2026, it is unlikely that a final EB-5 rule will take effect before September 30, 2026.2 At the same time, this maximizes the window to file under the current thresholds, the current TEA framework, and the current job-counting rules before DHS finalizes the new rules. Those who file later may face inflation-indexed minimum investment amounts, TEA determinations controlled by USCIS, bridge-financing exclusion provisions, and no protection against project failure. For a Chinese investor, assembling a source-of-funds documentation package capable of withstanding scrutiny typically takes several months—meaning the preparation clock is already counting down, and investors should not wait until the final effective date of the rule to begin planning.
- Prospective EB-5 investors are advised to complete the assembly of their source-of-funds documentation immediately and to target filing Form I-526E on or before September 30, 2026, in order to preserve the statutory "grandfathering" protection and maximize the possibility of filing under the current EB-5 framework.
- Before committing capital, in accordance with the proposed standards