The Department of Homeland Security published a notice of proposed rulemaking (NPRM) more than four years after the EB-5 Reform and Integrity Act (RIA) became law, establishing a 60-day public comment window to close August 31, 2026. The proposed rule codifies RIA requirements and introduces several provisions of DHS’s own design that will reshape how investors structure EB-5 cases and how regional centers operate.
What changed
Much of the proposal 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.
New investment tiers. DHS creates a “high employment area” category for any area that “is not in a TEA, and is experiencing unemployment significantly below the national average rate.” For investments in high employment areas, the proposed minimum investment amount is $1,400,000. This adds a third tier above the current $1,050,000 standard for non-TEA investments and $800,000 for targeted employment areas.
Capital at-risk timing. DHS proposes that the two-year sustainment period begins on the date of investment, provided the capital remains at risk and available to the job-creating entity when the EB-5 petition is filed. This clarifies that the two-year “at-risk” clock starts at investment, not at visa petition filing.
Compliance and oversight. The proposal 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. DHS is 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.
Why it matters
Industry stakeholders expect heavy commentary on the high employment area designation and, in particular, on the investment amount. The new $1.4M tier will affect project selection and investor qualification thresholds in markets outside traditional TEAs and infrastructure projects.
The clarified two-year capital-at-risk rule eliminates ambiguity that has created litigation risk: practitioners must now ensure capital is committed and placed at risk on the investment date itself, not delayed pending visa approval. The rulemaking calendar 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 filing pressure will intensify before the final rule is published.
The cost impact is uncertain. DHS estimates that complying with the rule will cost each regional center roughly $47,000 per year, but industry observers question that figure, noting the rule assumes 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.
Way forward
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Review the NPRM immediately. The Federal Register document (91 FR, Vol. 126, July 2, 2026) is 358 pages and covers regulatory definitions, audit standards, third-party promoter registration, and enforcement procedures. Download it and identify provisions affecting your current pipeline.
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Assess project tiers. If you have pending non-TEA EB-5 investments, confirm whether the proposed high-employment area definition would reclassify them under the new $1.4M tier. Consider filing before September 30 if your project falls in the “high employment” zone and you want to lock in grandfathering.
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Document capital commitment dates. Under the two-year clock proposal, the investment date—not the petition filing date—triggers the at-risk period. Ensure your engagement letter and fund documents clearly evidence when capital is committed and placed at risk.
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Submit comments by August 31, 2026. Register at https://www.regulations.gov (Docket No. USCIS–2026–0100) and flag specific concerns: the $1.4M amount, the high-employment area formula, regional center compliance costs, or promoter registration overhead. DHS has discretion to revise proposals based on the public record.
Disclaimer
Fola Editorial is a software company and information platform, not a law firm. This article explains the content of a federal regulatory proposal and does not constitute legal advice. Immigration law is complex and changes frequently; regulations published as notices of proposed rulemaking remain proposals until a final rule is issued. You must consult a licensed immigration attorney to assess how these proposed rules apply to your specific case, whether you should file before deadlines, or how to structure your investment. Verify all deadlines and requirements against the Federal Register notice at https://www.federalregister.gov/documents/2026/07/02/2026-13392/ and the official docket at https://www.regulations.gov. Policy is subject to change without notice.