EB-5 Grandfathering Explained: What Is Protected and What Is Not

In immigration law, grandfathering refers to a transitional protection that allows applicants to be evaluated under the rules that existed when they took a qualifying action, even if those rules change before their case is decided. For EB-5 investors, the qualifying action is filing a complete I-526E petition with USCIS.

Consider a practical example: an investor files an I-526E petition in June 2026 with an $800,000 investment in a TEA project. If the minimum investment amount increases to $900,000 (or higher) on January 1, 2027 due to CPI adjustments, USCIS will still evaluate this investor’s petition against the $800,000 threshold, because that was the amount required when the petition was filed.

Without grandfathering, an investor who committed $800,000 could find that their investment no longer meets the minimum requirement by the time USCIS adjudicates the case, potentially years later. This would force investors to bear the risk of legislative changes during processing periods they cannot control.

The EB-5 Reform and Integrity Act of 2022 (Pub. L. 117-103, Division BB) established the current grandfathering framework. Section 104(a) is the controlling provision. It states that an investor who files a petition before the applicable deadline shall have that petition and all subsequent immigration benefit applications evaluated under the standards in effect at the time of filing.

This is not merely a policy guidance or USCIS internal memo. It is a statutory provision enacted by Congress. USCIS cannot override it through regulation, and the protection survives changes in administration or agency policy. The only way to eliminate this grandfathering protection for already filed petitions would be for Congress to pass a new law explicitly revoking it, which would face significant legal and constitutional challenges.

Prior to the RIA, grandfathering in the EB-5 context was less clearly defined. Investors relied on general administrative law principles and USCIS guidance memos, which could change with each new administration. The RIA’s explicit statutory codification represents a substantially stronger legal foundation than the informal protections that existed under prior law.

The I-829 petition to remove conditions on permanent residence is typically filed two years after receiving conditional green card status. For many investors, this means the I-829 is filed four to seven years after the original I-526E. During that period, investment thresholds may increase, TEA definitions may change, and new compliance requirements may be introduced.

RIA Section 104(a) explicitly addresses this concern. When USCIS evaluates an I-829 petition, the agency must determine whether the investor met the requirements in effect at the time of the original I-526E filing. If you filed your I-526E under the $800,000 TEA threshold and that amount increases to $950,000 before your I-829 is adjudicated, USCIS still evaluates your case against the $800,000 standard.

This continuity of evaluation standards is critical for investor planning. Without it, an investor could satisfy all requirements at the time of filing and conditional approval, only to face a higher standard at the I-829 stage that their original investment does not meet. The statutory grandfathering provision eliminates this risk.

Filing early and grandfathering are related but distinct concepts. Filing early gives you an earlier priority date, which matters for visa availability (especially for retrogressed countries like China and India). Grandfathering, by contrast, locks in the regulatory and investment threshold rules under which your petition is evaluated.

An investor from a country with no visa backlog might not benefit much from an earlier priority date, but grandfathering still provides significant value by protecting against future investment amount increases. Conversely, an investor from China who files one day before the deadline and one day after the deadline would have almost identical priority dates, but dramatically different grandfathering outcomes if investment thresholds increase shortly after the deadline.

The optimal strategy combines both: file early enough to secure the best possible priority date and before the grandfathering deadline to lock in current investment thresholds. For most investors, the September 30, 2026 deadline is the binding constraint, since the projected CPI increase on or after January 1, 2027 will raise minimum investment amounts for any petition filed after that date.