Draft EB-5 Regulations Unveiled: Key Changes and What They Could Mean for Investors

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United States Citizenship and Immigration Services (USCIS) announced a Notice of Proposed Rulemaking (NPRM) titled EB-5 Reform and Integrity Act of 2022; Ensuring the Integrity of the EB-5 Program; Automatic Revocation of Petitions for Immigrant Classification on July 2, 2026, the first step in the process to formally implement the EB-5 Reform and Integrity Act of 2022 (RIA).

An NPRM is a public announcement where a government agency (the Department of Homeland Security [DHS] and USCIS, in this case) proposes adding, removing, or changing regulations and invites feedback from the public on their interpretation and practical application of concepts they are considering.

The in-house team of economists and industry experts at CMB Regional Centers (CMB) is working hard to evaluate, analyze, and comment on the proposed regulations to ensure positive and intentional impacts to the EB-5 industry and for EB-5 investors [2]. It should be noted that what has been published is a draft only. Because the NPRM is only a proposed rule, the proposed regulatory text is not yet binding and does not, itself, change the legal standards applicable to current adjudications of either investor I-526E petitions or project I-956F applications.

Proposed Technical Changes

Some of the most important technical changes to the program, as proposed by the NPRM, are summarized below:

Targeted Employment Area (TEA) Methodology Update

The proposed rule prohibits the use of the so-called “census share methodology” used in High-Unemployment Area (HUA) projects by requiring the use of public data along with a description of the applicable weights and estimation of error and bias in these estimates. In practical terms, this could significantly limit the data sources available for HUA determinations and may require reliance on American Community Survey (ACS) data unless USCIS recognizes other public datasets that satisfy the final rule’s requirements.

If this proposal survives public comment and is finalized without clarification recognizing additional data sources, ACS data may become the principal or only practical dataset for many HUA determinations.

High-Employment Area

The NPRM sets new investment amounts for projects that principally do business in high-employment areas, better described as areas that have extremely low unemployment. The new investment amount in these areas would be $1,400,000. Under the proposed rule, a project located in a census tract with an unemployment rate below 150% of the national average could be treated as being in a high-employment area and therefore subject to the higher investment amount. In effect, if the project’s own census tract has low unemployment, the project may be prevented from qualifying as an HUA by combining that tract with nearby higher-unemployment tracts, even if the combined area would otherwise exceed 150% of the national unemployment rate. The proposal establishes that a regional center cannot qualify a project as an HUA if the project is principally located in a high-employment census tract.

This rule has the potential to limit projects in areas that would otherwise qualify as HUAs. As an example, if implemented, this proposal would make it difficult to establish an HUA for Manhattan (New York) under these new regulations because a regional center could no longer establish an HUA project by connecting adjacent census tracts with higher unemployment areas if the project itself is in a high-employment area census tract.

Codification of Integrity and Oversight Measures

USCIS proposes expanded authority for audits, site visits, investigations, and compliance reviews for regional centers, new commercial enterprises (NCE), job-creating entities (JCE), investors, and project sponsors. Many of the proposed integrity and oversight measures reflect existing USCIS practices or guidance, but codification would give those processes a more formal regulatory framework and may expand the compliance consequences for regional centers, NCEs, JCEs, investors, and project sponsors.

Regional centers must maintain strengthened recordkeeping, reporting, and compliance systems, while undergoing USCIS audits to align with anti-fraud goals legislated in the RIA.

Expansion of “Persons Involved” Interpretation

The proposed rule significantly expands the definition of a “person involved” far beyond both the statutory language and current practice. Under the NPRM, Form I-956H would be required for an expansive group of individuals associated with a regional center, NCE, or JCE, including administrators, board members, managers, officers, owners, and others in similar positions. The proposal also appears to include EB-5 investors serving solely as limited partners in an NCE. Beyond expanding who is considered a “person involved,” the rule would require a regional center amendment whenever a new person becomes involved or a significant person departs. Further, USCIS would suspend adjudication of pending project applications and investor petitions until that amendment is approved. Given current adjudication timelines, these requirements would effectively impair a regional center’s ability to operate by delaying project approvals and investor processing over routine governance and ownership changes.

In CMB’s view, this interpretation extends well beyond those individuals who exercise meaningful authority over EB-5 capital or regional center operations. For example, a limited partner in an NCE does not individually possess substantive authority over the pooling, securitization, investment, release, acceptance, control, or use of EB-5 capital. Requiring such individuals to satisfy Form I-956H requirements is inconsistent with both the statutory framework and the practical realities of how EB-5 investment entities are structured.

The proposed definition also creates substantial challenges for projects involving non-affiliated JCEs. Unlike the EB-5 statute, the proposed regulations make no distinction between affiliated and non-affiliated JCEs, meaning developers and their owners—even where they are independent of and not controlled by the regional center—could be deemed “persons involved” and become subject to Form I-956H attestations, biometric requirements, and related compliance obligations. Because regional centers do not control these independent parties, they may have little or no ability to ensure compliance, creating unnecessary regulatory risk and potentially discouraging otherwise qualified developers from participating in the EB-5 program.

While we support USCIS’s efforts to prevent bad actors from participating in the EB-5 program, the proposed definition sweeps far beyond those individuals who have actual authority over EB-5 capital or regional center operations. Rather than strengthening program integrity, the proposal would increase administrative burdens, impede regional centers’ ability to operate efficiently, delay project and investor adjudications, and discourage participation by reputable development partners—all without a corresponding benefit to investor protection or fraud prevention.

Bridge Financing

The NPRM proposes removing the long-established practice of attributing job creation that results from the use of bridge financing. Currently, in typical EB-5 structures, developers may use bridge financing as a temporary funding source until the full EB-5 capital is raised. EB-5 capital then replaces bridge financing, and investors may still count on expenditures and job creation that took place because of that contemplated and documented bridge financing.

If this proposed rule is adopted as-is, it would reverse a long-term established policy for USCIS. Due to the severity of the proposal as written, one must evaluate the intention which appears to be leaning towards a codified definition of “short-term” as opposed to a full-scale removal of the practice of bridge financing. The NPRM evidences and acknowledges that there are many examples where bridge financing has been successful in the EB-5 industry. Although the text could be read to substantially restrict or eliminate reliance on repaid bridge financing, USCIS’s request for comments may provide an opportunity for stakeholders to urge a narrower approach, such as defining permissible short-term bridge financing rather than eliminating the practice.

Priority Date Retention

Under certain circumstances, the NPRM would allow an EB-5 investor to retain the priority date from a previously approved or pending petition if a regional center is terminated or an NCE or JCE is debarred, provided the investor timely files the required amendment and establishes continued eligibility.

National Security and Fraud

The NPRM provides USCIS with broad authority and discretion in both national security and fraud findings. To the extent these provisions would be applied to pre-RIA filings or approvals, stakeholders may raise questions about retroactivity, reliance interests, and the scope of USCIS’s statutory authority. USCIS would have discretionary authority to deny and revoke prior approvals based solely on a threat to public safety or national security or when a benefit request under the EB-5 program is based on fraud, deceit, intentional material misrepresentation, or criminal misuse.

Timeline

The NPRM is now in the review and comment stage for the public. All comments are due by August 31, 2026, at which point USCIS will be tasked with analyzing and responding to all public comments before deciding on a final rule. Any final rule would be published in the Federal Register and would include agency responses to significant public comments and explanation of the basis for the final regulatory text. Perhaps most importantly, the final rule will include specific dates when it becomes binding on future filings and adjudications.

The timeline between a proposed rule and final rule can be lengthy. For example, the last proposed rule to govern EB-5, the EB-5 Immigrant Investor Program Modernization Rule (also known as the “Mod Rule”) was published in draft form on January 13, 2017. That NPRM did not become final until July 24, 2019 (2.5 years after publication of the draft) and only became effective on November 21, 2019 (two years and 10 months after publication of the draft).

Conclusion

Some of the proposed regulations streamline and simplify the decision process for USCIS, such as limiting HUA qualification to ACS data, while other proposed regulations expand the compliance burden on the industry at-large, such as the broadened interpretation of “Persons Involved.”

The NPRM provides regional centers, prospective investors, and current petitioners with a unique opportunity to voice their concerns and feedback regarding the proposed regulations.

Additionally, the proposed regulations provide a rare glimpse into how USCIS is thinking and what specific problems and priorities that they believe need further explanation. CMB looks forward to providing detailed analysis and comments to broaden USCIS’ understanding of the EB-5 industry.

More EB-5 Resources

About CMB Regional Centers

CMB has assisted over 7,000 investor families, from over 100 countries, in their pursuit of immigrating to the United States through America’s EB-5 Immigrant Investor visa program. CMB currently maintains a 100% project approval rate[1] across more than 90 partnerships that have undergone USCIS adjudication.

To date, CMB has repaid over $1.5 billion USD to investors.

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[1] This is a statement of prior performance and does not guarantee future results.

[2] CMB has no control over the rulemaking process, the timeframe in which new rules are implemented, or how these new rules may be applied once implemented. As the rulemaking process moves forward, there is no certainty regarding what or how DHS or USCIS may implement. As such, CMB’s position and commentary on the NPRM is subject to change without prior notice.