EB-5 Program: What the 2026 NPRM Reveals About USCIS Priorities

Looking at the rule changes in the latest USCIS proposal can tell us a lot about what the agency thinks the program needs and what the future of EB-5 may hold.

When the Department of Homeland Security (DHS) released its Notice of Proposed Rulemaking (NPRM) on July 1^st, 2026, the industry’s immediate attention went to the proposed regulations and the comment period where stakeholders could have their voices heard about provisions that exceeded statutory language, created unintended consequences, or warranted further clarification.

That work is both necessary and valuable. The notice-and-comment process exists to ensure that proposed regulations benefit from the practical experience of those who will operate under them. But we should also ask what these proposed regulations reveal about how U.S. Citizenship and Immigration Services (USCIS) currently views the EB-5 program and the wider EB-5 visa framework. Why these rules changes, and why now?

Why the EB-5 Reform and Integrity Act was never the finish line

The EB-5 program has always required a careful balance between economic development and immigration policy. When it works well, projects create jobs, communities receive much-needed investment, and investors gain permanent residency through the EB-5 green card pathway. When it fails, public confidence erodes, political support weakens, and the value of the program is called into question.

The EB-5 Reform and Integrity Act of 2022 (RIA) represented the most significant modernization of the program in decades, imposing new responsibilities on Regional Centers, developers, promoters, and service providers and reshaping how EB-5 visa requirements are understood in practice. Some viewed those requirements as burdensome. Others recognized that stronger governance was necessary if the industry expected Congress and the public to have renewed confidence in the program.

JTC was among the voices supporting strong integrity standards that would enhance the credibility of EB-5. If we hope to have a permanent program and greater visa allocation, we need support from lawmakers, and greater institutionalization provides assurance that the industry is moving in the right direction. The RIA was not the industry’s ultimate objective, but an important step forward, and the fact that USCIS has bothered to create this 358-page document shows that the agency is looking to the future as well.

What the NPRM reveals about USCIS priorities for EB-5

Some parts of the NPRM simply translate the RIA’s statutory requirements into detailed operating regulations. More revealing are the areas where USCIS has made policy choices, instituting new rules in order to carry out the intent of the RIA. Those choices provide valuable insight into where the agency believes confidence has not been fully restored, and what it expects from the next phase of the program’s evolution. When read through that framework, three consistent themes emerge:

1. EB-5 program integrity remains an ongoing responsibility

The RIA addressed concerns about fraud and abuse by introducing more robust financial controls and a broader integrity framework that included promoter registration, fund administration, and annual certifications. These provisions were designed to help the program operate with the transparency and accountability expected of a mature investment program and to strengthen confidence in EB-5 investment activity.

Among the integrity-related provisions of the NPRM, no area receives a more comprehensive regulatory framework than promoters and foreign migration agents. Rather than simply implementing the RIA’s registration requirement, USCIS proposes detailed rules governing virtually every aspect of the investor acquisition process, including registration, identity verification, written agreements, compensation disclosures, conflicts of interest, and related enforcement measures, supervising how investors are introduced to EB-5 and the relationships that influence their decisions.

That emphasis is significant. After translating the broad principles of the RIA into an operational framework, USCIS concluded that institutional safeguards alone are not sufficient to protect the program’s long-term credibility. Confidence must also extend to the network of relationships through which investors first encounter the program and assess potential EB-5 regional center opportunities.

Across mature, SEC-regulated investment markets, investor protection does not begin when funds are received. It begins much earlier, with the solicitation of investors, the supervision of intermediaries, the disclosure of compensation arrangements, the management of conflicts of interest, and the accuracy of marketing materials. The NPRM appears to move EB-5 further toward institutionalization by extending regulatory expectations beyond the administration of investor capital to the entire investor journey.

2. EB-5 investment must reach the communities Congress intended to benefit

The RIA also substantially reoriented the program’s economic development priorities. Congress tightened the definition of a Targeted Employment Area (TEA), created reserved visa categories, transferred High Unemployment Area (HUA) designation authority to USCIS, and adopted more objective standards for determining where the program’s most valuable incentives should apply.

Much of the NPRM necessarily implements those statutory changes. More revealing, however, are the areas where USCIS had to exercise judgment. In those instances, the agency consistently chose interpretations that reinforce Congress’s decision to direct preferential treatment toward communities of genuine economic need.

Perhaps the clearest example appears in the proposed definition of a High Employment Area, a census tract “that is not in a TEA, and is experiencing unemployment significantly below the national average rate.” DHS considered whether High Employment Areas should use a methodology similar to HUAs, where contiguous tracts could be included. It rejected that approach, explaining “DHS believes that allowing a calculation similar to high unemployment areas with the inclusion of any directly adjacent tracts would only serve to lower the investment amount required for an area already experiencing high employment, which is contrary to the intent of the EB-5 program to incentivize investments into areas of true need.”

That explanation reveals a lot about USCIS’s priorities. Faced with an interpretive choice, the agency chose the interpretation that it believed would most faithfully preserve Congressional intent. The message is clear: preferential treatment should be reserved for projects serving the communities Congress intended to prioritize.

The same philosophy appears in the NPRM’s treatment of infrastructure projects. Congress created a reserved visa category for infrastructure investments, but left USCIS with significant responsibility for the requirements. By specifically requesting public comment on the types of projects that should qualify, USCIS demonstrates a willingness to work with industry to promote a category that Congress made a priority.

The proposed regulations governing HUA designation demonstrate an emphasis on objective, verifiable evidence. Section “proposed 8 CFR 204.402” prescribes a methodology for calculating weighted unemployment, requires statistically valid and unbiased data, limits acceptable data sources, establishes a formal designation and renewal process, and confirms that only USCIS may determine whether an area qualifies as an HUA. These provisions create additional administrative requirements, but also reveal something more fundamental. USCIS appears intent on ensuring that eligibility for the program’s preferential incentives rests on transparent, consistent, and defensible criteria rather than flexible interpretation.

Taken together, these sections communicate a consistent message: the NPRM is not simply implementing the RIA’s provisions, but reinforcing the policy choices Congress made. Wherever USCIS has been afforded interpretive discretion, the agency consistently favors interpretations that strengthen the connection between EB-5 incentives and genuine economic need.

3. EB-5 investment must demonstrate attributable impact

Perhaps the most consequential message of the NPRM concerns whether the economic outcomes attributed to an EB-5 project can be credibly connected to the EB-5 investment itself. Although neither the original EB-5 statute nor the USCIS Policy Manual expressly articulated a general “but for” test, most industry stakeholders would agree that some meaningful nexus between EB-5 capital and job creation is consistent with the purpose of the program.

The RIA made what appeared to be a modest change to the statutory job-creation language, but the NPRM assigns considerable significance to it. As DHS explains in Section IV.D.7, the RIA amended the Immigration and Nationality Act (INA) so that an investor must demonstrate that the New Commercial Enterprise (NCE) did not merely benefit the U.S. economy “and” create qualifying employment, but benefited the U.S. economy “by” creating that employment.

USCIS interprets that change as requiring a closer nexus between EB-5 investor capital and the jobs being claimed. That interpretation appears in three provisions that are central to EB-5 job creation requirements:

The NPRM would codify an express “but for” standard within the general job creation requirements. “Proposed 8 CFR 204.407(e)(1)” states:

“The job creation claimed must be tied to the investment capital, meaning that the jobs would not have been created but for the investment capital provided by the investor.”

This language elevates the issue beyond the narrower bridge-financing debate, establishing causation as a governing principle for determining whether jobs may be attributed to EB-5 capital.

The NPRM extends that principle to two specific areas. First, it provides that jobs attributable to financing later repaid with EB-5 capital may not be claimed as jobs created by that capital. Second, it prohibits the use of visitor spending as an input in economic models because USCIS does not believe the causal relationship between an EB-5 project and that spending can be reliably established.

Temporary financing is a fundamental feature of commercial real estate development and has long been recognized in USCIS policy guidance. Developers frequently begin construction using interim financing with the expectation that permanent financing will later replace it. The NPRM acknowledges that practical reality, but questions whether some arrangements currently described as bridge loans retain a meaningful connection to the EB-5 investment. DHS points to bridge financing with terms extending as long as ten years, which bear little resemblance to the temporary financing traditionally associated with the concept and could affect how EB-5 bridge financing is assessed in future adjudications.

The industry has legitimate reasons to challenge an overly restrictive approach. Commercial projects often require flexibility, and a rigid rule could exclude otherwise viable projects. But the broader concern is clear: USCIS is asking whether the immigration benefits awarded through the program can be justified without a sufficiently direct relationship between investor capital and the resulting economic activity.

Many projects use bridge financing to begin construction prior to receipt of EB-5 capital so as not to be slowed down by EB-5’s long fundraising process. This may result in the marketing of EB-5 projects based on jobs that have already been created. There may be legally supportable reasons why those jobs remain attributable to EB-5, particularly where temporary financing was obtained in anticipation of EB-5 funding. Even so, the further job creation becomes separated from the actual deployment of capital, the harder it becomes to explain why those outcomes should be credited to the program.

The NPRM makes it clear that USCIS does not necessarily intend to forbid bridge financing altogether; rather, it is soliciting public comment on how to “sufficiently demonstrate a nexus” between EB-5 capital and job creation. Restrictions on bridge financing could limit possibilities for developers using EB-5 capital, but could end up strengthening the program’s credibility in the long term by making it easier for outsiders to see the link between EB-5 investment and project impact.

What the NPRM means for the future of the EB-5 program

The notice-and-comment process presents an important opportunity for the industry to improve the proposed regulations. Regional Centers, industry organizations, attorneys, economists, developers, and service providers should engage fully in that process. Constructive comments will lead to better rules, greater clarity, and a stronger regulatory framework. But the industry’s opportunity extends well beyond the NPRM.

For much of the past two decades, EB-5 has found itself playing defense. Whether responding to allegations of fraud, repeated program sunsets, legislative uncertainty, visa retrogression, or evolving adjudication standards, much of the industry’s energy has been consumed preserving the program rather than advancing it.

The NPRM creates a credible opportunity to move beyond defending the program toward demonstrating its long-term value. Whether or not every proposed regulation survives the rulemaking process, the document’s themes are unlikely to disappear.

Regional Centers should continue investing in governance not because regulations require it, but because institutional-quality governance will distinguish the strongest organizations and demonstrate what EB-5 can be. The industry should continue embracing transparency throughout the investor journey, recognizing that credibility begins well before an investor transfers capital.

Stakeholders should begin telling a more compelling story about the lasting economic value those investments create. The most persuasive argument for reauthorization won’t be that the industry complied with the RIA, but that the program consistently delivered measurable public benefit to the communities Congress intended to serve.

The September 2026 grandfathering deadline will undoubtedly command much of the industry’s immediate attention, after which attention will shift toward the program’s next authorization deadline in September 2027. These deadlines require a significant communications effort to ensure that the program continues. But the industry must do more than react; it must shape the environment in which the next authorization debate occurs. The stronger approach is to spend the next several years building the evidence, credibility, governance, and public confidence that will make permanence the logical next step rather than focusing only on short-term issues such as EB-5 processing time or EB-5 investment amount.

The RIA established the foundation. The NPRM offers valuable insight into how USCIS believes that foundation should be strengthened. Progress requires stakeholders to unite on the issues affecting the program’s credibility and future. Achieving permanent authorization and additional visa capacity will require collective leadership, with the industry working together to shape the environment in which the next authorization debate occurs.

The case for permanent reauthorization