The DHS Proposed EB-5 Rule (USCIS-2026-0100), Explained in Plain Words

The EB-5 rule in docket USCIS-2026-0100 is a proposal that DHS published on July 2, 2026. It has no effective date, and nothing in it applies to anyone yet. If DHS finalizes it as written, most of it would apply only to petitions filed after it takes effect, with a short list of exceptions that reach pending and older cases.

A proposed rule doesn't move your priority date either. To see where you are today, use Where am I in line?.

Where the rule stands#

The document is a notice of proposed rulemaking, 91 FR 40676. It runs 127 pages in the Federal Register and would rewrite the EB-5 parts of 8 CFR so they match the 2022 Reform and Integrity Act. DHS calls the Act "the RIA," and we will too.

Comments closed on August 31, 2026. When we checked the docket on regulations.gov on November 11, 2026, it showed 463 posted comments. The proposal was still the only Federal Register document filed under that docket number, so there's no final rule.

DHS now has to read the comments and respond to them before it can publish anything final, and the final text can differ from the proposal. The EB-5 fee rule that was finalized in September changed several numbers between its proposal and its final version. The proposal gives no target date. The one timing clue is a placeholder: a new investment tier (below) would apply to petitions filed 60 days after a final rule is published.

Every "would" in this article is deliberate.

What the rule would change#

All of the following comes from the proposed rule's preamble and regulatory text. The headings are ours.

Investment amounts, and a new higher tier#

The rule would write the statutory minimums into the regulations, along with the automatic inflation adjustment that starts January 1, 2027. A footnote says DHS will decide when it finalizes the rule whether to print the adjusted amounts there.

The new part is a third tier. DHS proposes a $1,400,000 minimum for a "high employment area," meaning part of a metropolitan area that isn't a targeted employment area and has unemployment well below the national average. The statute has let DHS set a higher amount for those areas for years. DHS says it never has.

How long your money has to stay in#

For petitions filed since the RIA, the two-year clock would start when the full amount has gone into the new commercial enterprise and been made available to the business that creates the jobs. DHS describes that as the reading it has used since the RIA took effect.

What's new is a filing-day test. DHS says it would "require (rather than suggest)" that the money still be invested and at risk on the day you file the petition. You couldn't invest, exit, and then file on the strength of a finished investment.

Source of funds#

Here DHS says it's mostly codifying what it already does. You'd have to show the lawful source and the full path of the investment capital, and of the money used for administrative fees too. If you use a currency exchanger or a money service business, you'd have to show that the money they provided was lawful too.

One line is blunt. A regional center, the new commercial enterprise, the job-creating business, or anyone involved with them couldn't gift or lend an investor the capital, directly or indirectly.

Job creation and bridge financing#

This is the one developers will care about most. The proposed text says jobs tied to financing that is later repaid with EB-5 money can't be counted as jobs created by that EB-5 money. DHS acknowledges it has historically allowed credit for jobs created by bridge financing that EB-5 capital later replaces.

DHS also asked commenters about a narrower option that would restrict bridge financing, for example with a maturity limit and a cap as a share of project cost, instead of ending the credit. Of everything in the rule, we'd guess this is the likeliest to change before it's final.

Separately, economic models that count jobs from visitor spending wouldn't be accepted.

Targeted employment areas#

USCIS alone would designate a high unemployment area, and only while it reviews a regional center's project application or a standalone investor's petition. It would want consistent census tract data, for example from the American Community Survey, and it wouldn't accept the "census share" method that blends two data sets.

A designation would last two years and then extend for two more from approval. If you've invested the full amount while the designation was valid, you wouldn't have to add money just because it later expires.

Infrastructure projects and troubled businesses#

The infrastructure definition would follow the statute, with tribal agencies added as possible government sponsors. A standalone investor couldn't get one of the visas reserved for infrastructure.

The old "troubled business" route, where an investor qualifies by preserving jobs, would be removed. DHS says that wouldn't affect anyone who filed on that basis before the rule's effective date.

If your regional center is terminated#

The RIA already protects good faith investors when a regional center is terminated or a project entity is debarred. The rule would set the procedure. You'd have 180 days from USCIS's notice to file an amendment, whether your petition is pending or approved, and if you qualify you'd keep your original priority date. You wouldn't need an amendment if, at the time of the notice, your money had already been invested for two years and the jobs existed.

An amendment couldn't be used to fix a problem that was there when you first filed.

If your I-829 is already pending when the notice arrives, you'd respond to the notice with evidence of the new investment. DHS says that would generally carry no filing fee for now. If approved, your conditional status would be extended for two years from the new investment instead of having the conditions removed right away.

Redeployment#

Only regional center investors' capital could be redeployed. The money could go anywhere in the United States or its territories, but it would have to be redeployed within three months of being returned to the new commercial enterprise unless a longer period is shown to be reasonable.

Removing conditions#

The rule would set separate evidence lists for investors who filed before the RIA and those who filed after. It also spells out when a spouse and children ride on the investor's I-829 and when they file their own.

Withdrawals#

If you withdraw an approved EB-5 petition, the approval would be revoked automatically. DHS says that's how it worked before a 2017 rule, and that the fix matters to investors because getting money back can depend on USCIS acting on the withdrawal.

Fraud and national security#

USCIS could decide at any time that a filing involved fraud, deceit, intentional material misrepresentation or criminal misuse, or that it threatens public safety or national security. It would then deny or revoke the petition and, where it applies, end the investor's and family's permanent resident status. This part implements authority the RIA already gave DHS, and it's written to reach petitions filed before the RIA.

Promoters#

Anyone paid to promote an offering would have to register and give you a written agreement that discloses their fees. You'd certify on your Form I-526E that you received it.

What would it mean for a pending case?#

Start with the general rule. DHS proposes that the rule "be implemented prospectively to petitions and applications filed on or after its effective date." On that reading, a requirement that is new, such as the filing-day test, the bridge financing change or the high employment tier, wouldn't be applied to a petition that's already on file.

Then come six exceptions, and "prospective" protects you less than it sounds once you read them.

The widest one covers anything the rule merely codifies from DHS's practice since the RIA. DHS says it will keep applying those policies. So if you have a pending I-526E, most of the source of funds and sustainment material describes how DHS says your petition is already being reviewed.

The termination and debarment procedure would apply to affected investors whenever they filed. So would the fraud and national security provisions. Investors who filed before March 15, 2022 would get priority date retention. Every regional center, including those designated before the RIA, would have to meet the new program requirements. And anything the statute itself directs still applies.

For the oldest cases, DHS proposes that the regulation as it read on November 20, 2019 would generally keep governing petitions filed before March 15, 2022. The proposal counts about 1,500 of those still pending as of May 1, 2025.

For a pending I-829, which evidence list you'd fall under depends on when your original investor petition was filed.

None of this is settled. DHS could redraw these lines in the final rule.

What to do now#

Not much, and we mean that. Nothing changes today, and you shouldn't re-paper a pending petition around a proposal.

If you're choosing a project now, two questions are worth asking the sponsor: whether the job count leans on bridge financing, and whether the targeted employment area analysis uses the blended data method the rule would stop accepting. Neither is disqualifying today.

If you want the primary text, the proposal is long but readable, and section IV.A is where the pending-case rules live. Our Federal Register guide explains how a proposed rule becomes final, and where things stand after the grandfathering cutoff covers the dates that are certain.

Sources#

• Federal Register, EB-5 Reform and Integrity Act of 2022; Ensuring the Integrity of the EB-5 Program; Automatic Revocation of Petitions for Immigrant Classification, notice of proposed rulemaking, 91 FR 40676 (DHS Docket No. USCIS-2026-0100, RIN 1615-AC94), read November 11, 2026
• Regulations.gov, Docket USCIS-2026-0100 (comment count as of November 11, 2026)
• 8 U.S.C. 1153(b)(5), Cornell Legal Information Institute
• Federal Register, EB-5 Fee Rule, final rule, 91 FR 61940