United States | DHS proposes extensive regulatory updates to implement EB-5 visa program reform

Today, the Department of Homeland Security published a notice of proposed rulemaking (NPRM) to update regulations governing the EB-5 immigrant investor program. The proposed rule aims to implement the significant reforms introduced by the EB-5 Reform and Integrity Act of 2022 (RIA), including expanded DHS authority to address fraud, national security and public safety concerns, clarified eligibility requirements and new compliance measures for regional centers, investors and third-party promoters.

Key takeaways:

Implementation of RIA reforms. The rule codifies regulatory updates that enable the implementation of the RIA, which “substantially reforms and adds significant integrity provisions to the employment-based, fifth preference (EB-5) visa category for alien investors and the associated Regional Center Program.”

Main changes proposed. In addition to various technical and clarifying changes identified in the 358-page proposed rule, the NPRM’s list of “main changes proposed” with substantive impact include:

• Implementing certain sections of the Immigration and Nationality Act to mitigate fraud and national security threats
• Implementing priority date retention
• Clarifying eligibility requirements
• Eliminating the use of repaid bridge financing
• Determining targeted employment areas (TEAs)
• Implementing audits
• Adding new definitions

Minimum investment thresholds. The rule codifies the current statutory thresholds of $1,050,000 for standard investments and $800,000 for TEA or infrastructure projects, subject to automatic inflation adjustments and other factors starting Jan. 1, 2027, and every five years thereafter.

Expanded oversight of regional centers. The NPRM introduces stricter compliance for regional centers, including audits, recordkeeping, annual reporting and site visits.

Removal of “troubled business” from EB-5 eligibility path. Investments based solely on preserving jobs in troubled businesses would no longer qualify as “an avenue to establish eligibility.”

Scope of application: Most provisions would apply prospectively to petitions filed on or after the final rule’s effective date, with limited exceptions.

Additional information: DHS will accept public comments on the proposed rule on or before Aug. 31, 2026. Public comments can be submitted here.

The EB-5 immigrant investor program in general allows foreign nationals “to apply for lawful permanent resident status in the United States if they make the necessary investment in a new commercial enterprise in the United States and create 10 permanent full-time jobs for qualified U.S. workers.”

Regional centers, investors and related stakeholders should assess current processes, documentation practices and investment structures to prepare for increased oversight and new regulatory requirements or connect with our EB-5 expert for a consultation.

BAL will continue monitoring developments and provide updates as the rulemaking progresses.

This alert has been provided by the BAL U.S. Practice Group.

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