EB-5 After the Grandfathering Cutoff: Where Things Stand in November 2026

The grandfathering window closed on September 30, 2026, so a regional center petition filed after that date no longer carries the statute's promise that USCIS will keep processing it if the program's authorization runs out. The program itself is still open, it's authorized through September 30, 2027, and you can still file today.

If your petition is already in and what you really want to know is how long the wait is, start with Where am I in line?.

What did the cutoff protect?#

The protection is one paragraph of the statute, 8 U.S.C. 1153(b)(5)(S), and Congress titled it "Protection from expired legislation." It covers regional center investor petitions (Form I-526E) and petitions to remove conditions (Form I-829) that were filed on or before September 30, 2026.

For those petitions, the paragraph tells the Secretary of Homeland Security to do three things even if the law authorizing the regional center program expires. Keep processing them. Don't deny them because the authorization expired. Don't suspend or end the allocation of visas to people whose covered petitions are approved.

That's all of it. Paragraph (S) doesn't mention investment amounts, filing fees or your spot in the visa queue, and it doesn't excuse anyone from the rest of the program's requirements. The text also doesn't spell out what happens to an I-829 that gets filed years later by someone whose I-526E made the cutoff. That's a question for your immigration lawyer, and we're not going to pretend the statute answers it.

How long does the program run?#

Through September 30, 2027. Subparagraph (E)(i) of the same section says visas for regional center investors "shall be made available through September 30, 2027."

That date sits in the regional center subparagraph. Direct investment, which is filed on Form I-526, isn't part of the regional center program, so the sunset isn't aimed at it. USCIS describes the regional center route as a program that started as a pilot in 1992 and has been reauthorized regularly since.

Nothing happened to the program on October 1. USCIS still accepts Form I-526E, and the minimums in subparagraph (C) are still $800,000 for a targeted employment area or infrastructure project and $1,050,000 for everything else.

It has lapsed before, though. DHS's own account in the July 2026 proposed rule is that the last extension expired on June 30, 2021, and the reformed program didn't take effect until May 14, 2022. That's about ten and a half months with no authorized regional center program. Paragraph (S) didn't exist then. The Reform and Integrity Act, signed on March 15, 2022, added it.

What does "unprotected" mean if you file now?#

It means your petition is outside paragraph (S), and that's the only thing it means.

If Congress extends the program before September 30, 2027, the difference between a protected petition and an unprotected one may never matter. If the authorization lapses, the statute tells USCIS to keep working on the protected petitions and says nothing comparable about yours. What USCIS would do with unprotected petitions during a lapse isn't written down anywhere we can point you to, so we won't guess.

Unprotected doesn't mean invalid or late. It's the same form, the same evidence and the same visa categories. The exposure is to one event, a lapse, and you can't control whether it happens.

People also mix the cutoff up with price. The two were never connected. Investment minimums move on their own schedule, which is the second date below.

The three dates ahead#

November 30, 2026. New USCIS fees for EB-5 forms. Under the fee final rule at 91 FR 61940, anything postmarked on or after that date pays $7,850 for an I-526E and $5,000 for an I-829, and the Integrity Fund fee paid with each I-526E goes to $1,100. We put the old and new amounts side by side in the fee article.

January 1, 2027. The first inflation adjustment to the minimum investment. The statute applies it to petitions filed on or after that date, and DHS hasn't published the new amounts. Our projections, labeled as projections, are in the January 2027 adjustment article.

September 30, 2027. The regional center program's authorization ends unless Congress acts first.

One more item has no date at all. DHS proposed a long EB-5 rule in July 2026 and hasn't finalized it. We go through it in the proposed rule explainer.

What to watch in Congress#

Both dates are written into the statute, so only Congress can move them. When we read the U.S. Code text on November 11, 2026, it still showed September 30, 2027 as the end date and the same grandfathering date, and neither the Federal Register nor USCIS's EB-5 page showed a change.

Watch the vehicle first. The Reform and Integrity Act didn't pass as a standalone immigration bill. It was Division BB of the Consolidated Appropriations Act, 2022, a spending package. An extension could arrive the same way, so the big funding bills deserve as much attention as anything with EB-5 in the title.

Then read what an extension actually changes. A bill could move the 2027 date in subparagraph (E) and leave the date in paragraph (S) alone. That would keep the program open without adding any protection for petitions filed after the cutoff. A bill that moves both would be a different story.

And watch the timing. In a footnote to the fee rule, DHS says its analysis assumes the program will be extended, because Congress has a history of reauthorizing it. That's an agency's planning assumption. It isn't law, and 2021 is the proof that the history includes a gap.

We don't have a prediction to sell you. If you're filing now, plan for both outcomes.

If you already filed#

Check the receipt date on your Form I-797 notice. Under 8 CFR 103.2(a)(7), USCIS records the receipt date as the day the filing actually arrived at the right location, not the day it was mailed. If your package went out in the last days of September, that receipt date is the one that tells you which side of the cutoff you're on.

After that, the cutoff stops mattering to your day-to-day wait. Your timeline depends on processing times and the Visa Bulletin, and the place-in-line tool puts the two together for your country and category.

Sources#

• 8 U.S.C. 1153(b)(5), Cornell Legal Information Institute (grandfathering at subparagraph (S), sunset at (E)(i), investment amounts and adjustment at (C)), read November 11, 2026
• Federal Register, EB-5 Fee Rule, final rule, 91 FR 61940
• Federal Register, EB-5 Reform and Integrity Act of 2022 proposed rule, 91 FR 40676
• USCIS, About the EB-5 Visa Classification
• 8 CFR 103.2(a)(7), Cornell Legal Information Institute
• U.S. Congress, Public Law 117-103, H.R. 2471 (Division BB is the EB-5 Reform and Integrity Act)