The U.S. EB-5 Immigrant Investor Program, created under Section 203(b)(5) of the Immigration and Nationality Act (INA), provides a pathway to lawful permanent residence, commonly referred to as a green card, for qualifying foreign investors. Through investment in U.S. based projects that create American jobs, EB-5 has become a cornerstone of employment-based immigration policy and an important mechanism for regional economic development.
Today, however, this pathway faces a critical period of transition. Legislative timelines established under the EB-5 Reform and Integrity Act (RIA) of 2022 have set a definitive protection window for investors: applications must be filed on or before September 30, 2026 to remain covered under the program’s grandfathering provisions.
This article examines the current state of EB-5 from a legal perspective, explaining how the grandfathering clause operates, what risks exist if the program lapses again, and how emerging policy discussions could reshape investor immigration in the coming years.
From Lapse to Reform: How the RIA Reshaped EB-5
The direct EB-5 investment category was permanently authorized by the Immigration Act of 1990, while the Regional Center Program, which allows investors to pool capital through government-approved entities, has always been a temporary program subject to periodic reauthorization by Congress. Since its inception in 1993, the Regional Center framework has been renewed multiple times. In June 2021, authorization lapsed after Congress failed to pass a reauthorization bill in time, creating an unprecedented disruption.
During the lapse, U.S. Citizenship and Immigration Services (USCIS) suspended adjudication of all pending EB-5 petitions (Forms I-526 and I-829) and refused to accept new filings. Investors found themselves unable to advance their immigration cases or recover their capital investments. This period exposed the inherent fragility of a program reliant on congressional renewal.
In response, Congress enacted the EB-5 Reform and Integrity Act of 2022 as part of the Consolidated Appropriations Act, restoring the Regional Center Program for a five-year period, through September 30, 2027. Beyond reauthorization, the RIA introduced extensive compliance and transparency measures, including mandatory annual reporting, fund audits, restrictions on promoter compensation, and new definitions for Targeted Employment Areas (TEAs).
Most importantly, the RIA established a grandfathering clause, a legal protection ensuring that any investor who files an I-526E petition on or before September 30, 2026 may continue through the immigration process even if the program is not renewed in 2027. This clause was a direct response to the hardship experienced during the 2021 lapse and represents a significant evolution in EB-5 legislation: for the first time, investor rights are preserved independently of congressional reauthorization.
The Grandfathering Clause: Legal Protection for Investors
The grandfathering protection codified in Section 103 of the RIA ensures continuity for investors who act before the deadline. Specifically, the law provides that:
“A petition filed under section 203(b)(5) of the INA for classification of an alien investor shall be adjudicated notwithstanding the expiration or lapse of the Regional Center Program.”
In practice, this means that investors who file Form I-526E before September 30, 2026 remain eligible for adjudication and may proceed to conditional residence and, later, to removal of conditions (Form I-829). Investors filing after that date would not be covered if the program is not reauthorized by Congress, effectively halting adjudication until renewal. USCIS retains the authority to continue processing petitions under the grandfathering clause, even during a lapse.
The limitation of this protection is temporal. It expires one year before the program’s current authorization ends, leaving a potential one-year gap (from October 2026 to September 2027) during which new investors could again be left unprotected if reauthorization is delayed. This timing remains controversial, as it exposes late investors to the same legislative risk that the RIA sought to address.
Parallel to the EB-5 framework, policymakers from the Trump administration have floated the concept of a “Gold Card” program, an alternative investor visa model involving a non-refundable contribution (reportedly around USD $1 million) to the U.S. government, without job-creation requirements. While the proposal remains conceptual, it signals potential shifts in U.S. policy: away from job-linked investment models and toward direct fiscal contributions. From a legal standpoint, such a shift could reconfigure or even replace EB-5 under the same statutory section (INA §203(b)(5)), raising concerns among Regional Centers and developers that rely on EB-5 capital.
Update on EB-5 Filing Fees
Investors should also be aware of a significant recent fee development. On November 11, 2025, a U.S. federal court blocked the major USCIS fee increases introduced in April 2024, ruling that the agency failed to conduct the mandatory fee study required under the RIA. As a result, the previous lower fee structure is immediately reinstated, including:
- Form I-526/I-526E: returning from USD $11,160 to $3,675
- Form I-829: returning from USD $9,525 to $3,750
- Forms I-956/I-956F: returning from USD $47,695 to $17,795
USCIS has confirmed that filings may proceed using these reinstated fees while the case continues, and it has temporarily shifted to manual processing to avoid incorrect rejections. The American Immigrant Investor Alliance has also indicated that potential refunds may be pursued for investors and regional centers who paid the higher 2024 fees. Although further litigation remains possible, this ruling offers meaningful financial relief for those currently preparing EB-5 filings.
Looking Ahead: A Narrow but Stable Window
For now, the EB-5 Program remains fully operational under the RIA. However, prudent investors should be aware that legislative and administrative priorities may evolve sharply in the lead-up to 2027.
From a legal and strategic perspective, the next 11 months are critical. Investors contemplating EB-5 participation should consider the timing of their filings, the compliance of selected projects, and the potential impact of policy changes. Petitions filed before September 30, 2026 benefit from statutory protection; those filed later do not.
For foreign nationals seeking a U.S. green card through investment, this is a narrow but stable window to act within a legally protected framework.
At Exeo, we monitor U.S. investor immigration policy and cross-border developments closely, advising clients on compliance, risk management, and strategic planning. The EB-5 program remains a viable, time-sensitive mechanism for those seeking to align business investment with long-term U.S. immigration objectives.
As the September 2026 deadline approaches, investors and their advisors should evaluate their readiness to proceed, assess project eligibility under the RIA, and remain informed of upcoming policy changes. Those wishing to receive further updates on legislative and regulatory developments are invited to subscribe to Exeo’s immigration newsletter and contact our team to discuss their objectives and understand how these upcoming changes may affect their plans.
*This article is provided for informational purposes only and does not constitute legal advice. For legal guidance specific to your situation, please please contact an attorney at Exeo.
