High stakes and heavy hurdles now define US investment immigration. A wave of restrictive immigration policies, the growing threat of layoffs across the tech sector, and the expiration of long-standing program protections confront prospective investors weighing what may be their only realistic path to permanent residency in the United States.
For EB-5 investors, it’s a stressful time. In many cases, the US$800,000 minimum investment represents a substantial proportion of investors’ net worth, making the decision to invest one of the largest of their lives. Yet, what other options do they have when children may be edging closer to the 21-year age-out date, merit-based options are all but foreclosed, and about-faces in immigration policy move the goal posts with distressing frequency?
We’ve gotten here not just because of recent Oval Office policy constricting immigration, but a confluence of factors, some of which have historical roots, so let’s start there.
The immigration by investment program in the United States has been around for more than 30 years, since the Immigration Act of 1990 overhauled the 1952 Immigration and Nationality Act.
That year, Congress provisioned for several employment-based categories, including one for immigration by investment known as the EB-5 visa. As it currently stands, for US$800,000, typically returned after a three-to-five year lock-in period, plus the creation of 10 new American jobs, an investor, spouse, and children under 21 may receive permanent residency in the United States.
The investment is usually accomplished via a “regional center,” a company licensed by United States Citizenship and Immigration Services (USCIS) to sponsor EB-5-eligible projects. Investments typically take the form of ground-up construction projects in the hospitality, residential, or infrastructure spheres, partly funded through an EB-5 investor-pooled construction loan.
The 1990 law also set forth quotas by visa category, including 226,000 per year for family visas (though an uncapped sub-category allows immediate relatives without limitation) and 140,000 per year for all employment-based visa categories. Importantly, it also introduced a per-country quota system under which no single country may receive more than 7% of the visas allocated in a particular category, regardless of demand.
In the 36 years that have elapsed since the passage of the Immigration Act of 1990, Congress has not meaningfully updated the number of available visas. Its inaction means that the system is woefully out of step with migration trends and population growth. With regard to the latter, for example, the United States has grown by 100 million people, China by more than 250 million people, and India by about 70%, adding 590 million people over that timeframe.
Though employment-based visas are sought by applicants from around the world, demand today is concentrated in a handful of countries, particularly India and China (so much so that official publications sometimes refer to applicants from elsewhere as hailing from “rest of world”). Population growth is only one factor, but it helps explain the scale of demand for those seeking US employment opportunities.
Yet the number of immigrant visas available each year has remained largely unchanged.
The result is a growing mismatch between demand and supply. Because employment-based visa numbers are capped and further constrained by per-country limits, applicants from high-demand countries face particularly severe backlogs.
For many qualified professionals, the wait for permanent residency can span decades. As one skilled tech worker with a pending employment-based application observed, “It’s not just the wait. How will my qualifications and experience have relevance in an artificial intelligence-dominated marketplace?” The question acknowledges a reality many now face: A long-ago filed employment-based petition may no longer qualify a professional for a merit-based visa as artificial intelligence reshapes the market.
So, if merit-based petitions are out of reach, and if a family-based petition is not an option, which it is not for many first-generation immigrants, the EB-5 immigration by investment option may stand as a sole gateway to permanent residency.
Geography matters
EB-5 has historically been open to investors from every country, but a decree issued in early 2026 indefinitely paused the issuance of immigrant visas of any category for 75 countries. The list includes Brazil, Egypt, Ghana, Nigeria, Pakistan, Russia, and Thailand. The Department of State justified the pause on grounds that it “is undergoing a full review of all screening and vetting policies to ensure that immigrants from high-risk countries do not unlawfully utilize welfare in the United States or become a public charge.”
Though an EB-5 investor making a US$800,000 investment seems at little risk of abusing welfare systems in the United States, the policy makes no exceptions. While investors from impacted countries can still file an application and have it adjudicated, they will not be issued an immigrant visa until the policy is lifted or amended.
Aggrieved foreign nationals and advocacy groups have filed a lawsuit, but it is moving slowly through the federal courts. The government has moved to end the case, arguing that the plaintiffs lack standing to sue and that their claims lack merit. The court has yet to set a hearing date.
Domestic POV
Many EB-5 investors are foreign nationals already living and working in the United States, some for a decade or more. These include H-1B skilled workers, L-1 intracompany transferees, E-2 treaty or trade investors, other work visa holders, and F-1 international students, usually pursuing a bachelor’s or master’s degree.
Those in the United States have long relied on a policy that lets them remain in the country while their application to move from temporary to permanent status is decided. Adjustment of status (AOS) exists in recognition that individuals and families may suffer hardship if an applicant must leave the country to obtain permanent status, through familial separation or disruption to livelihood and career.
Yet a May 2026 memorandum from USCIS threw the ability to adjust status into question. The memorandum told stakeholders that the agency will grant AOS “only in extraordinary circumstances.” In practice, AOS has been granted as a matter of course, provided the applicant holds a valid underlying visa and has no major immigration violations.
Like the immigrant visa ban, the memorandum did not specify to which visa categories the policy applies, though it did mention that “students, temporary workers, or people on tourist visas, [who] come to the U.S. for a short time and for a specific purpose” should not use their visit “as the first step in the Green Card process.”
Shortly thereafter, USCIS walked back the memorandum, clarifying that most investors on a dual intent visa (like H-1B or L-1) will likely be permitted to stay in the United States during processing, but cautioned that officers have case-by-case authority to require that applicants process from abroad.
Even so, for EB-5 applicants in the United States, including those with long residential and work histories and full immigration and tax compliance, the anxiety has set in. The scenario Congress set out to avoid, the disruption of lives and livelihoods, could become the case at hand.
H-1B skilled worker spotlight
The large majority of US-based applicants contemplating EB-5 hold H-1B “skilled worker” visas and work mostly in technology, information technology, and computer-related fields. Top employers of H-1B visa holders include Amazon, Cognizant, Infosys, Tata Consultancy Services, IBM, Microsoft, Google, Apple, Deloitte, and Meta.
In September 2025, the presidential administration took restrictive action requiring that employers pay a US$100,000 fee for each H-1B worker hired from abroad, intended to encourage US companies to hire Americans. Recognizing the value H-1B workers bring to the economy, 20 state attorneys general challenged the decree, and this week a federal court agreed that it constitutes an illegal tax.
Headwinds remain, regardless. H-1B applicants have about a one-in-five chance of winning the annual lottery and securing a three-year work visa, provided they find a willing employer sponsor.
Persistent waves of tech layoffs add to the strain. An H-1B holder who loses his job must find new employment within 60 days or leave the country, absent a valid underlying status. Driven by the spread of artificial intelligence, that threat carries even more weight in 2026.
One last thing…
The grandfathering protections under the EB-5 Reform and Integrity Act apply only to investors who file a complete petition before the September 30, 2026, deadline. A qualifying petition rests on a US$800,000 investment in a project sponsored by a USCIS-designated regional center, with the investor’s source and path of funds fully documented. Filing on time locks in the rules currently in force for the duration of an investor’s immigration process; missing the date forfeits that protection.
Like many legislative programs, the provisions must be reauthorized by Congress to take effect again.
Past renewals over the program’s 30-plus-year lifespan suggest that EB-5, which has generated hundreds of thousands of jobs and billions of dollars of investment in the US economy, will be renewed in full. The question of “when” remains, shadowed ever so slightly by the advent of the Gold Card. Neither popular nor successful by the numbers, its arrival has further politicized the future of the EB-5 program.
In closing
This is one of the most emotionally demanding periods the market has seen in years. But the defining characteristic of today’s EB-5 investor is persistence more than panic. Behind every petition is usually a family trying to convert uncertainty into stability, and attempting to do so before another deadline, policy shift, or disruption changes the calculation yet again.
