Looking to FY2026 (fees, regs, data, notices, deadlines)

Fiscal year 2026 begins today, with a promise of new fees, new regulations, denial and termination notice drama, Gold Card drama, data drama, and the deadline for grandfathering under current regional center program authorization. A few notes on developments that I expect in the coming months.

EB-5 filing fee changes

EB-5 filing fees are set to increase. We don’t know yet when or by how much, but we do know that U.S. Citizenship and Immigration Services Employment-Based Immigrant Visa, Fifth Preference (EB-5) Fee Rule (RIN: 1615-AC93) concluded regulatory review on September 25, 2025. This means that DHS could publish a Notice of Proposed Rule-making in the Federal Register any time. After the proposed rule is published, there should be a couple months (at least) before a Final Rule is published and the new fees take effect. The public may get a chance to comment. The proposed fee rule responds to the EB-5 Reform and Integrity Act requirement that USCIS set fees at a level to allow “timely processing” for EB-5 forms. At last report (March 2025), USCIS was processing approximately 10 times fewer forms than they would need to process to achieve the goal of <1 year processing times for everyone (despite already-high form fees, and despite having previously achieved much higher volumes with existing resources). Being in such a hole currently, how much might USCIS say they need to raise fees, to realize timely-processing targets? I also wonder what’s behind this sentence in the rule teaser: “This rule also proposes to codify in regulation certain elements of the EB-5 Reform and Integrity Act of 2022 and make one technical amendment.” We should find out soon. Certainly, timely processing can’t come too soon.

RIA regulations

Major EB-5 policy changes/clarifications are set to emerge when DHS proposes regulations to fully implement the EB-5 Reform and Integrity Act. In sustainment litigation, DHS promised a November 2025 deadline to publish a proposed rule for EB-5 Reform and Integrity Act of 2022; Ensuring the Integrity of the EB-5 Program (RIN: 1615-AC94). Publication of this proposed rule (NPRM) will certainly be followed by a public comment period (as promised in litigation), and then DHS has to review and respond to public comments. So we might still be a year or more away from a final rule. But November will at least bring insight into what DHS is thinking about hot button issues from sustainment to regional center compliance to investor protections, and will give the public a chance to weigh in.

Denial drama

With the low volume of I-956F and I-526E adjudications in 2022-2025, denial rates were also very low. As processing volumes increase and USCIS finds its stride with RIA compliance, the industry will grapple with more denials and terminations. I hear that USCIS finally, last week, started sending out notification letters to investors affected by regional center terminations, thus providing opportunity for investors to test Subsection M good faith investor protections. (Carolyn Lee has written about the notices and will hold a webinar next week.) If only USCIS would start publishing AAO appeal decisions again, to give a window into denial reasoning. (Publication of AAO decisions stopped abruptly in March 2025, and has yet to resume.)

Gold card drama

A Gold Card program will be implemented on December 18, 2025, IF agencies fulfill the Executive Order directive: “The Secretary of Commerce, the Secretary of State, and the Secretary of Homeland Security shall, within 90 days of the date of this order, take all necessary and appropriate steps to implement the Gold Card program.” I personally cannot imagine this actually happening — but even the pending prospect is a hassle for EB-5. What a shame that a 30-year-old program to get a visa for job creation, underwritten by the law, has to watch its back for a proposal to finagle a visa for nothing but some money, underwritten by nothing but a president’s gold-stamped face and an executive order.

Data drama

Backlogs and visa timing are the single most important topic in EB-5 today, as they define the window to keep raising EB-5 funds. I believe that explosive data developments exist to be reported, and I keep hitting “refresh” on government pages to find out.  Unfortunately DOS hasn’t updated the “monthly” visa report since May 2025 or the “annual” NVC waitlist since November 2023, and USCIS hasn’t updated its “quarterly” data report since March 2025. So pernicious. IIUSA and AIIA continue to pursue data reports via Freedom of Information Act and litigation, and I look forward to being able to report sooner rather than later on what’s happened to EB-5 waiting lines since early 2025.

Visa bulletin retrogression

In 2026, the conditions for Visa Bulletin retrogression could exist for Rural and High Unemployment. The EB-5 set-aside categories did not have cut-off dates in 2022 to 2025 despite a high volume of Rural and HUA investment, because low-volume I-526E and visa processing held back investors from becoming qualified visa applicants. But the inevitable retrogression announcement gets closer by the day, as I-526E approvals continue daily to add to the pool of qualified visa applicants. For example, USCIS had approved 1,126 Rural I-526(E) by January 2025, and was approving new petitions at an average rate of about 100 per month in the last three reported quarters (with 74% of approvals being for Rural cases). Even if USCIS never improved on that atypically low volume, it is sufficient to have generated over 2,000 Rural I-526(E) approvals by January 2026. And 2,000 approved investors, when joined by spouses and children, could be over 4,000 visa applicants able to maximize the FY2026 quota of about 4,100 Rural visas. When qualified visa applicants exceed available visa supply, then the Visa Bulletin reacts. The actual month of Visa Bulletin movement remains unknown, as it depends on processing productivity and how many visas were ultimately issued at the end of 2025.

Grandfathering deadline

In reauthorizing the regional center program, the EB-5 Reform and Integrity Act stated in Section (E)(e) that “Visas under this subparagraph shall be made available through September 30, 2027.” However, Section (S)(i) “protection from expired legislation” applies to petitions “based on an investment in a new commercial enterprise associated with a regional center that were filed on or before September 30, 2026.” This distinction doesn’t matter provided that the regional center program gets reauthorized once again. (Assuming that program authorization is extended by September 2027, then visa issuance proceeds seamlessly for all priority dates and no one needs protection from expired legislation.) But in case the regional center program does not get another authorization, then the grandfathering deadline of September 30, 2026 becomes significant. In that case, only petitions filed up through this year will still be technically eligible to move forward under the grandfathering protection despite program expiration.  Will this fact prompt a surge of EB-5 demand in 2026? Think about it. If you believe that the regional center program will sunset in 2027, then you might question the viability of a regional center investment today — even with the government offering some grandfathering protection on the immigration side. If you’re confident that the regional center program will gain timely reauthorization in 2027, then the grandfathering deadline is not a concern. And regardless of push from authorization deadlines, there remains the concern of visa availability amidst backlogs. Opportunity to beat a deadline is only compelling if opportunity to get a visa also exists. Ideally, the primary effect of the 2026 grandfathering deadline is to supercharge legislative advocacy efforts this year, including for visa relief. IIUSA and AIIA are starting to push the discussion.

Blog future

I continue to contemplate changes in 2026 for my E-2, L-1A, and direct EB-5 business plan service and for my EB-5 reporting service. At minimum, I resolve to switch out this blog’s outdated wordpress theme. If you are familiar with wordpress.com themes and can suggest one that would work for this content, please email suzanne@lucidtext.com.