The Department of Homeland Security (DHS) today published its long-awaited notice of proposed rulemaking (NPRM) to implement the EB-5 Reform and Integrity Act of 2022 (RIA), a 358-page document touching nearly every corner of America’s EB-5 Immigrant Investor program. The public comment period runs for 60 days, through August 31, 2026.
The rule arrives more than four years after the RIA became law and roughly seven months after US Citizenship and Immigration Services (USCIS) told a federal court to expect it by November 2025.
Much of it writes into regulation what Congress already decided in 2022, but several provisions, from a new $1,400,000 investment tier to a graduated sanctions regime, are DHS’s own design.
For Christina Tabacco of San Francisco-based regional center Golden Gate Global, the NPRM “has been a long time coming” and represents “a much-awaited step” toward clarity.
“Though little is earth-shaking, if adopted, the proposed rulemaking could alter the type of investments regional centers offer and the way applicants fund EB-5 investments,” she tells IMI.
What Changes for Investors
The headline number in the proposal is a new $1.4 million minimum for projects in a “high employment area,” which DHS describes as part of a metropolitan statistical area that is not in a targeted employment area (TEA) and is “experiencing unemployment significantly below the national average rate.”
For everyone else, the amounts do not change. Investments in a targeted employment area (TEA), meaning rural or high-unemployment locations, or in an infrastructure project stay at $800,000, and the standard amount everywhere else remains $1,050,000.
Those figures have been in force since the RIA took effect in March 2022; the rule simply transcribes them into regulations that still display the outdated pre-2022 amounts of $500,000 and $1,000,000, which is why the proposal can read like a hike when compared against the old regulatory text rather than against what investors actually pay today.
Mona Shah, Managing Partner of Mona Shah & Associates Global, sees much of the codification as a formality. “It has taken DHS a little over four years to write Congress’s numbers into the regulations, which by rulemaking standards is practically brisk,” she observes dryly, adding that “codifying them changes nothing on the ground” since investors have been paying these amounts for four years already.
Shah doesn’t foresee strong demand for the $1.4M tier. “Based on DHS’s own approval data, 99.9% of regional center investors chose to invest in TEAs at the reduced amount,” she explains, adding that “very few projects will ever meet this number in the wild.”
All investment amounts will be adjusted for inflation on January 1, 2027, and every five years thereafter, a statutory mechanism that is already expected to raise the cost of entry for those who file after that date.
A Two-Year Sustainment Period, in Writing
The provision investors are likely to care about most confirms that post-RIA capital must remain at risk for a minimum of two years from the date it is made available to the job-creating entity, rather than throughout an investor’s conditional residency.
That question split the industry when trade association Invest in the USA (IIUSA) sued USCIS in 2024, demanding formal rulemaking, and a federal court sided with the agency’s two-year reading last year.
“The two-year sustainment period is the provision everyone has and will continue to be arguing about at conferences for the next year,” Shah remarks. “IIUSA demanded proper notice and comment, and DHS has now obliged, though possibly not with the answer they had in mind.”
For investors, she calls the outcome “a genuine win, and there are not many of these to hand out,” explaining that investors can now recover their capital once the two years have run and they have met the job creation requirements, even if their visa remains stuck in a queue.
Previously, regional centers had to “redeploy” repaid funds into new projects the investor never chose, keeping the money at risk, in Shah’s words, “for however long the visa backlog cares to last.” DHS itself expects redeployment to become rare for post-RIA petitions.
The rule, DHS writes, “would lessen the burden on the investor to keep his or her investment in place for an extended period due to circumstances beyond the investor’s or the new commercial enterprise’s control, such as visa backlogs.”
Tabacco reads that as a direct nod to applicants from India and China, who face the longest queues and have historically borne the redeployment risk that comes with them.
Protections When a Regional Center Fails
The rule also details the RIA’s “good faith investor” protections, which shield applicants whose regional center is terminated or debarred through no fault of their own.
Affected investors will get a defined 180-day window to reassociate with a compliant sponsor, priority dates survive the move, and an investor who has already completed the two years and the job creation “need not lift a finger,” in Shah’s words.
She considers these provisions “more significant than they look.” Under the old regime, a terminated regional center could take every one of its investors down with it, “which always struck me as punishing the wrong people.”
One further point drew Tabacco’s attention: digital assets. The rule confirms USCIS’s practice of accepting cryptocurrency as a lawful source of funds, declines to write crypto-specific evidentiary regulations for now, and invites public comment on whether it should. Tabacco welcomes the treatment, given the opacity that previously surrounded the agency’s approach to digitally sourced capital.
What Changes for Regional Centers
The rule builds out a tiered penalty structure for regional centers. Violations can draw anything from a formal DHS notice to monetary penalties of up to 10% of the total capital invested in the enterprises involved, suspension, termination of a regional center’s designation, and debarment of entities or individuals from the program.
DHS is even floating flat fines for routine breaches, offering $10,000 for a late annual statement as an example, and failure to pay a penalty would itself constitute a sanctionable violation.
The proposal also implements the RIA’s audit program, fund administration requirements, and, for the first time, mandatory registration of the direct and third-party promoters who market EB-5 offerings abroad.
Shah calls these changes the Congress’s handiwork, not DHS’s. “Anyone claiming to be shocked by it now has been asleep since 2022,” she adds.
Costs are another matter. DHS estimates that complying with the rule will cost each regional center roughly $47,000 per year, but Shah takes that figure “with a generous pinch of salt,” explaining that the rule assumes the burden falls evenly across centers large and small, and leaves out costs DHS admits it could not quantify, such as attorney time and handling problems as they arise.
The real cost, she argues, “is comfortably higher,” and she urges the industry to answer DHS’s request for comment on this point “with real numbers.”
DHS acknowledges that at least 87% of regional centers are small entities, and fixed compliance costs, Shah warns, “always land hardest on the small, single-project centers rather than the big sponsors with compliance departments to spare.”
Still, she argues the marginal shock is smaller than the page count suggests: centers have lived with most of these requirements since 2022, those that couldn’t cope have largely exited, and the courts, including the Eleventh Circuit last year, have shown little sympathy for arguments that pre-RIA centers deserve exemption.
What Happens Next
DHS will collect written comments through August 31, 2026, review them, and then publish a final rule, with the discretion to revise its proposals in response to the record.
Tabacco expects the industry to weigh in heavily on the high employment area designation and, in particular, on the investment amount.
The rulemaking calendar now collides with two dates already dominating EB-5 planning: the September 30, 2026, cutoff for the RIA’s grandfathering protection, and the January 1, 2027, inflation adjustment.
Filings already reached record levels in 2025, and Shah expects the twin deadlines to further compress demand.
“Nobody sensible is waiting around to file,” she predicts. “We fully expect a rush for the door, and then a rather quiet spell, rather like 2019 followed by 2020.”
The regional center program’s authorization runs through September 30, 2027, and its renewal will be up to a congressional vote.
