New EB-5 regulations proposed to implement RIA (preliminary notes on what’s new)

Big news: The Department of Homeland Security has published a Notice of Proposed Rulemaking (NPRM) to implement the EB-5 Reform and Integrity Act of 2022.  See “EB-5 Reform and Integrity Act of 2022; Ensuring the Integrity of the EB-5 Program; Automatic Revocation of Petitions for Immigrant Classification” (RIN 1615-AC94), published in the Federal Register as of July 2, 2026.

DHS is finally disclosing how it interprets the law enacted four years ago, and its ideas for further implementation.

I do not know when and if this proposed rule will ever become final and take effect. The proposal will first have to get through the public comment period (open until August 31, 2026), and could be blocked by litigation or superseded by another new law. But regardless, the proposed regulations are interesting today because they provide a window onto current DHS thinking about EB-5 requirements.

The proposed rule (A) suggests potential changes that might take effect in the future, and also (B) articulates how DHS has understood and implemented RIA since 2022.  One challenge in reading the proposed rule is trying to distinguish between A and B. USCIS has not previously publicized or explained every aspect of its existing practice, and the proposed rule does not always flag what DHS considers to be new and prospective. The distinction is important, because today’s projects and investors are subject to current implementation and interpretations of RIA.

This post shares some preliminary results of my engagement so far with the proposed rule. Here is the process I followed:

1. I read the proposed rule, exposing all its 107,340 words to my tender human synapses bent by 16 years of reading and reporting on EB-5 policy. As warned by the rule’s cost analysis, a single read-through takes almost nine hours. Top questions in mind as I read: what’s new here, and who is affected and when?
2. I assigned Claude AI to act as my legal assistant, and fed it the full text of the proposed rule plus the full text of the EB-5 Reform and Integrity Act of 2022, the existing EB-5 regulations, the USCIS Policy Manual EB-5 chapters, and current EB-5 form instructions. My starting prompt after explaining context: “I want to understand how far the 2026 proposal goes beyond simply implementing the 2022 law, or simply updating the existing regulation to mirror the 2022 statutory language. I want to identify new requirements or interpretations that are introduced in/suggested by the 2026 regulation, beyond what is included in the law and existing policy or regulations. I also want to understand the applicability of new requirements and interpretations.”
3. AI started generating a “what’s new” analysis, which we then discussed and probed and revised until I ran out of Claude credits and time to burn. I am sharing the current 26-page draft of this analysis, uncredited, for what it’s worth. For me, this process and AI’s rough work product are a valuable launch point for further thinking (which will in turn, no doubt, shortly make the draft analysis obsolete).

In the text of this post, I will flag a few matters in the proposed rule that seemed particularly significant to me at first read. (See the draft linked above for more in-depth analysis and many other points of note.)

• Consistency: The preamble discussion section in the NPRM is not entirely consistent with the language actually included in the proposed regulations section of  the NRPM. Conflicts and omissions each way add to the fun of figuring out what DHS means, and potential impact of a final rule.
• National security concerns: The proposed rule requires compliance by every regional center, NCE, job-creating entity, and investor with the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA). A compliant regional center “may not divulge controlled materials or information that poses risk to the U.S. national interest to regional center investors.” The FIRRMA requirement applies to “all designated regional centers, regardless of designation date” according to the proposed regulations section on applicability (§ 204.400). DHS may assume that EB-5 is already subject to FIRRMA compliance — whatever that means exactly in practice.
• Infrastructure: Relatedly, the proposed rule introduces nuances for infrastructure projects, including identification of specific sectors that DHS “generally expects” to qualify in the infrastructure category, and also a list of infrastructure sectors that DHS is concerned might involve national security risks with EB-5 investment. This discussion in the proposed rule preamble deserves attention, in case it reflects thinking that already influences infrastructure project adjudication.
• High Unemployment TEA Methodology: The proposed rule indicates that DHS (or at least, the person who wrote the preamble discussion) is uncomfortable with one of the two major and long-established methods for high unemployment TEA analysis: census share. To quote from the preamble: “USCIS previously allowed a combination of U.S. Department of Labor Local Area Unemployment Statistics (LAUS) and ACS data, commonly referred to as a ‘Census Share Methodology. ‘ This methodology does not generally produce statistically valid unbiased estimates at the census-tract level. Consequently, the combination of LAUS and ACS data would not be accepted under proposed program requirements with regard to consistency between the unemployment rate and the census-tract-level data.” Thankfully, the discussion acknowledge that this would be a major change from long-accepted practice, and invites public comment as to what ought to be accepted. I also note that the actual proposed text of the new regulations does not specifically mention census share in the relevant section (8 CFR 204.402(b)). But I might still go out of the way to address the concern and justify the method if I were filing I-956F or I-526 today that depended on Census Share methodology for TEA qualification.  Now that I know what DHS is thinking.
• Bridge Financing: Another shocker: “DHS is proposing in this rule to eliminate the use of bridge financing repaid from EB-5 investment capital as a basis to demonstrate job creation in the EB-5program. See proposed 8 CFR 204.407(e)(1)” Thankfully, the proposed rule explicitly recognizes that eliminating bridge financing would be a change from existing DHS policy and practice, so today’s projects and investors should not be retroactively affected if the proposed rule gets finalized with this case. But certainly this provision would have major industry impact, if it ever did take effect.
• Material Change: And now my top pick for positive surprise: the proposed rule suggests major liberalization for the material change policy, and many new options for EB-5 projects and investors to retain eligibility despite changed circumstances. Again, this involves an obvious and major shift from existing law and policy and DHS practice, so it won’t become reality unless and until a rule gets finalized. But this could have such a significant positive effect, if realized!
• Incidental insights: I’ll save numbers for another post, but the proposed rule discussion divulges many interesting operational details along the way, including  data for current and proposed staffing levels at IPO and numbers and outcomes for audits and site visits to date.
• The previously-linked draft analysis covers many additional points of note, and delves into more detail.

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