The U.S. Department of Homeland Security (DHS) has released a long-awaited Notice of Proposed Rulemaking (NPRM) that would formally implement the EB-5 Reform and Integrity Act (RIA) of 2022. Spanning 358 pages, the proposal represents the most comprehensive regulatory update to the EB-5 Immigrant Investor Program in years, providing long-awaited clarity while introducing several new compliance measures and investor protections. The public has until August 31, 2026, to submit comments before DHS issues a final rule. (Public Inspection Federal Register)
Although much of the proposal codifies policies already required by the 2022 law, several provisions could significantly affect future EB-5 investments, Regional Center operations, and program administration.
A New $1.4 Million Investment Tier
Among the most notable proposals is the creation of a new $1.4 million minimum investment for projects located in designated High Employment Areas—regions within metropolitan areas that experience unemployment significantly below the national average. This would represent a new investment category distinct from the existing EB-5 framework.
For most investors, however, the investment thresholds remain unchanged:
- $800,000 for projects located in Targeted Employment Areas (TEAs), including rural and high-unemployment locations, as well as qualified infrastructure projects.
- $1,050,000 for standard EB-5 investments outside TEAs.
These investment amounts have been in effect since the EB-5 Reform and Integrity Act took effect in March 2022. The proposed rule primarily updates older regulations that still referenced the previous investment thresholds of $500,000 and $1,000,000. As a result, although the proposal may appear to increase investment requirements, the only truly new investment threshold is the proposed $1.4 million category for designated High Employment Areas.
Greater Certainty Through a Two-Year Sustainment Period
Perhaps the most significant change for investors is DHS’s confirmation that EB-5 capital must remain “at risk” for a minimum of two years from the date the funds are made available to the job-creating entity.
For years, investors faced uncertainty over how long their investment needed to remain committed, particularly when visa backlogs delayed green card processing. Under previous practice, many Regional Centers redeployed repaid capital into new projects—often without the investor’s input—to satisfy the program’s “at risk” requirement while investors waited for visa availability.
The proposed rule would significantly reduce the need for redeployment. Once an investor satisfies the two-year sustainment period and fulfills the job creation requirements, the investment may be returned even if the investor remains in a visa queue because of government processing delays. This change is expected to particularly benefit applicants from countries such as India and China, where visa backlogs have historically been the longest.
Expanded Protections for Good-Faith Investors
The proposal also strengthens protections for investors affected by the termination or debarment of a Regional Center through no fault of their own.
Under the proposed regulations, investors whose Regional Center loses its authorization would receive a 180-day period to affiliate with another compliant Regional Center while preserving their original priority date. Investors who have already completed the required sustainment period and satisfied job creation requirements would generally not be required to take further action.
These provisions represent a substantial improvement over prior practice, when the termination of a Regional Center could jeopardize every investor associated with the project, regardless of individual compliance.
Cryptocurrency Receives Additional Recognition
The proposal also addresses cryptocurrency, confirming current USCIS practice that digital assets may serve as a lawful source of EB-5 investment funds, provided applicants can adequately document the lawful origin and transfer of those assets.
Rather than adopting cryptocurrency-specific evidentiary requirements immediately, DHS is requesting public comment on whether additional regulations should be developed in the future.
Stricter Oversight for Regional Centers
The proposed regulations strengthen and clarify compliance obligations for Regional Centers. DHS proposes a graduated enforcement system that would allow the agency to issue warnings, impose monetary penalties, suspend operations, terminate a Regional Center’s designation, or permanently debar organizations and individuals from participating in the EB-5 program.
Serious violations could result in penalties of up to 10% of the total capital invested in the affected enterprises. Even routine violations could carry fixed fines, with DHS identifying $10,000 as an example penalty for failing to timely submit an annual statement. Failure to pay an imposed penalty could itself constitute a separate violation.
The proposal also formally implements several provisions of the EB-5 Reform and Integrity Act of 2022, including:
- Mandatory audits;
- Enhanced fund administration requirements;
- Expanded recordkeeping obligations; and
- Registration requirements for domestic and overseas EB-5 promoters and marketing agents.
While many of these requirements have been in place since the Reform and Integrity Act took effect in 2022, the proposed regulations provide detailed guidance on how DHS intends to implement and enforce them.
Compliance Costs Could Rise
DHS estimates that compliance with the new regulations will cost Regional Centers approximately $47,000 annually. However, industry observers suggest actual costs may be considerably higher once legal expenses, compliance staffing, reporting requirements, and ongoing operational adjustments are included.
Smaller Regional Centers are expected to experience the greatest financial impact because fixed compliance costs represent a larger burden for organizations operating only one or two projects. Larger Regional Centers with established compliance departments are generally better positioned to absorb the additional requirements.
The Road Ahead for the EB-5 Program
The proposed rule remains subject to a 60-day public comment period, which closes on August 31, 2026. DHS will review submitted written comments before publishing a final regulation and may revise portions of the proposal based on stakeholder feedback.
Industry participants are expected to focus heavily on the proposed High Employment Area designation and the new $1.4 million investment threshold during the comment process.
The timing also coincides with two important milestones for the EB-5 industry. September 30, 2026, is the deadline for investors to file and qualify for the EB-5 Reform and Integrity Act’s grandfathering protections, while the next inflation-based adjustment to investment thresholds is expected on January 1, 2027. These approaching deadlines could encourage many investors to file their petitions before potential changes take effect.
Meanwhile, the EB-5 Regional Center Program remains authorized through September 30, 2027. Any extension beyond that date will require congressional action.
Final Take
DHS’s proposed rule marks a major step in implementing the EB-5 Reform and Integrity Act of 2022. While much of the proposal formalizes requirements that have been in place since the law took effect, it also introduces notable changes, including a proposed new investment category, stronger investor protections, expanded compliance requirements, and enhanced oversight of Regional Centers.
For investors, the proposal provides greater clarity on key issues such as the two-year sustainment period and protections if a Regional Center is terminated. For Regional Centers, it signals increased regulatory oversight and more detailed compliance expectations.
The proposed rule is not yet final, and DHS will consider public comments before issuing the final regulation. Once finalized, the rule is expected to play a significant role in shaping the future of the EB-5 Immigrant Investor Program.
