Updates (Jan 2026 Visa Bulletin, TEA, Regs, Resources)

January Visa Bulletin

The January 2026 Visa Bulletin has been published. It has no retrogression and no warnings for set-aside categories, and a huge leap forward for India Unreserved.

The lack of Visa Bulletin movement for Rural and High Unemployment must reflect lack of movement by the government in processing visa applications. Rural and High unemployment applicants exist, considering the volume of I-526E approvals. As a reminder, last year’s January visa bulletin concluded with a warning that that: “The Department of State and USCIS note increased I-526E petition approvals, and both agencies see increasing numbers of individuals processing their applications to completion in the EB-5 set aside categories” and that therefore  “It may become necessary to establish Dates for Filing and Final Action Dates during the fiscal year to ensure that issuances in these categories do not exceed annual limits.” However, FY2025 ultimately had no set aside cutoff dates. And now the January 2026 bulletin includes no renewed warning. The government stopped publishing monthly visa issuance statistics back in May, so there’s no visibility into their progress and performance. But no surprise if visa processing volumes remain low, considering all the new layers of vetting that have been added. So long as we can count on the government for low and slow set-aside visa processing volume, we can count on the Visa Bulletin staying “Current” for set-aside categories (regardless of applicant volume) and on Rural and High Unemployment backlogs continuing to balloon.

The Visa Bulletin movement for India Unreserved reflects either extremely high India Unreserved visa issuance in recent months, or massive attrition to the number of India-born applicants who appear in data reports to have I-485 pending or be registered at NVC. The January 2026 Visa Bulletin moves India Unreserved dates into post-RIA territory: May 2022 for final action and May 2024 for filing. Could this possibly mean that most pre-RIA India Unreserved applicants already have visas? There were 721 pre-RIA India applicants with pending I-485 alone at the start of FY2026, not to mention however many are waiting abroad, so I doubt. There aren’t even 721 Unreserved visas available to give India this fiscal year, unless the government counts on not issuing visas to Indians in set-aside categories. But the Visa Bulletin movement is extremely interesting. At minimum, it means maximum scope for Indian applicants to get non-FIFO visas, and even for set-aside investors to see opportunity for requesting a visa from the Unreserved category.

TEA Data Change

One of the datasets supporting High Unemployment TEAs traditionally updates annually in December. However, the Census Bureau announced that the 2020-2024 ACS 5-year data release is now deferred to January 29, 2026. This gives another month of validity to current High Unemployment TEA qualifications that depend on ACS data. Once the new data comes up, HUA TEA analyses will need to be updated, and some geographies may gain or lose eligibility based on the new numbers.

EB-5 Regulations

Still no news on the forthcoming new EB-5 regulations to implement RIA, titled EB-5 Reform and Integrity Act of 2022; Ensuring the Integrity of the EB-5 Program (RIN: 1615-AC94). The OMB agenda and litigation had promised publication in November 2025, but apparently this was also delayed by the shutdown.

You still have until December 22 to comment on the U.S. Citizenship and Immigration Services Employment-Based Immigrant Visa, Fifth Preference (EB-5) Fee Rule. Surprisingly few comments have been submitted so far. I plan to add a comment on the proposed Form I-527, and ambiguities around how to implement subsection M to  protect investors in terminated regional centers and debarred NCEs.

EAD Change

More entries have been made in the campaign to make immigration more difficult and unattractive, including slashing the EAD validity period. See the IIUSA blog article USCIS Policy Manual Update EAD Validity Period Change Affects EB-5. More countries face limits, and the State Department is expanding its speech surveillance, even requiring children to make their social media profiles public. The government’s mantra is “a U.S. visa is a privilege, not a right.” One day we’ll wake up and realize that attracting the world’s best and brightest to our shores is a privilege, not a right, and that the privilege wants protecting.

EB-5 Resources

AIIA has refreshed its website and made public an amazing resource library originally developed behind a paywall to encourage membership. Check it out! I frequently refer developers to the series of practical informational articles about how to use EB-5, and investors to resources for EB-5 decisions and problem-solving throughout the immigration process, from investment selection to pursuing capital repayment. Use the resources and still consider supporting AIIA with a membership contribution. The EB-5 world needs our associations to be there for us especially now, as the regional center program faces another sunset and battles over policy and program implementation. It’s worth joining forces for a chance to get voices heard and to maximize our shared resources. IIUSA also continues to be an important center for helpful resources and advocacy.

Gold Card

The administration has now published a half-baked application form and launched a website rife with baseless claims in support of the proposed Gold Card program. I blame ignorance/carelessness rather than any malicious or fraudulent intent, but still, such an embarrassment. The seriousness of the program is reflected in the fact that the official pronouncements don’t even agree about when and to which department the notional millions of dollars in gifts would be made (whether to Commerce or Treasury, and whether before or after the USCIS application). Anyone who tries to use this program will get what he deserves – either (A) loss of capital plus ultimately no green card, since the program is not legal and supported by nothing but a President’s word, or (B) loss of capital plus a visa to a lawless country where a one-time president’s word is indefinitely effective in lieu of immigration law. Ideally, the Gold Card will shortly just disappear from consciousness like the whim it is, unused and forgotten. Ideally, before the whiff of scam and scandal has a chance to contaminate and confuse peoples’ understanding of the very different EB-5 program. (If you really want to read more about it, here’s a good article.)

Navigating cliffs in the EB-5 landscape (I-485, securities compliance, visas, sunset, advocacy)

I mentioned the new whitepaper EB-5 After the RIA at the end of my last post, but I’d like to highlight it again as an important resource. CanAm organized a set of articles by industry experts to lay a chart over the new EB-5 landscape created by the EB-5 Reform and Integrity Act of 2022 — highlighting opportunities, flagging pitfalls, and discussing navigation. The typical EB-5 resource on the Internet blurs over risks – this whitepaper shines a bright light on them. Step 1 to avoid falling off a cliff is to see it. And then to strategize ways to navigate it, as the articles in this whitepaper strive to do.

Joey Barnett contributed a short must-read article that points out specifically what concurrent I-485 filing does – and does not – mean for legal status. This is essential knowledge for U.S.-based EB-5 investors who want to avoid finding themselves in removal proceedings (and for EB-5 sales agents who don’t want to endanger investors by overpromising the effect of EAD).

Mariza McKee and Mike Xenick contributed must-read articles for regional centers, issuers, and promoters who want to see and avoid the poorly-marked brinks of securities violations, particularly in the new environment where many investors are filing petitions in the U.S. The articles highlight essential (and easily-overlooked) responsibilities of parties in the chain of compliance, flag specific pitfalls to avoid, and point out practical strategies for staying safe and on the right side of SEC rules.

Lee Li, Aaron Grau, and I contributed articles that face the looming need for new legislation to keep EB-5 alive. Grandfathering for regional center program investors currently ends in September 2026, ahead of the 2027 regional center program sunset. High pending demand shows that the path to a timely EB-5 visa has already closed for the major EB-5 markets, only waiting on reserved investor approvals to push across-the-board backlog problems to the surface in the Visa Bulletin. We depend on action from Washington, DC in the coming months to keep the regional center investment window open by providing the necessary authorization and visa relief. Aaron’s article discusses strategies for these imminent life-or-death advocacy challenges, while Lee’s article and data analysis highlight the impressive economic story available to support advocacy.

For additional insight, see the webinar with Aaron Grau and Lee Li that CanAm released today: Navigating the Future of EB-5: Insights from Industry Leaders. The discussion delves into specific advocacy strategies and challenges, resources and data responsive to those challenges, and how we can contribute. I also note AIIA’s post from a few weeks ago One Year Left to Invest in a EB-5 Regional Center Project. The importance and urgency of these conversations cannot be overstated. The EB-5 future depends on today’s advocacy efforts achieving positive results against tough obstacles.

P.S. Notice also that USCIS published a new fee schedule on November 14 with lower EB-5 form filing fees. (11/18 UPDATE: The USCIS Newsroom now also has a post, including the note that: “In accordance with the Nov. 12 order, and effective immediately, USCIS will accept the fees that were in effect until March 31, 2024, which are listed in the ‘Current Fee’ schedule below. Petitioners and applicants should pay fees according to the “Current Fee” schedule, not the higher ‘Previous Fee‘ schedule. However, for items postmarked Nov. 26, 2025 or earlier, USCIS will also accept payment of the ‘Previous Fee.'”) See AIIA’s blog post for discussion of the successful litigation that accomplished this result, and implications for potential future legal actions on behalf of investor interests. We’re now temporarily back to pre-2024-level filing fees (good for applicants, bad for IPO’s budget) until DHS can finalize the pending new EB-5 fee rule based on the required EB-5-specific fee study. (And FYI, for those curious about how DHS calculates form fee levels as a function of its budget and volume projections, I’m sharing my Excel summary of DHS’s calculations in the 2016, 2022, and 2025 fee rule studies.)

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.

Updates and Resources (CanAm Whitepaper on Visa Allocation, IIUSA EB-5 Q&A, CSPA Policy Change, September Visa Bulletin, Mandamus, I-485)

This post provides links to important EB-5 resources and updates that I’ve been collecting to share.

New FAQ on Visa Backlogs (CanAm Whitepaper)

This week CanAm published EB-5 Visa Availability and Allocation: Q&A for 2025 – a set of articles that I wrote to address common visa questions from prospective and current EB-5 investors. Last year I wrote a Q&A that generally reviewed the basics of how visa numbers and allocation work in EB-5. This year’s Q&A addresses 13 more specific and personal questions, and references 2025 data. Most questions came from the CanAm sales team – such as “If I filed a Rural petition to get priority processing, am I required to take a Rural visa?”  “How long will it take for the Unreserved category to be current for an India-born investor?” “Is there any scenario where it would make sense for an investor in a Reserved category to choose from the Unreserved pool?” and so on. I contributed questions addressing points of confusion that I’ve encountered in timing consultations, such as “Is my visa wait time longer or shorter depending on my I-526E processing time?” I worked very hard on this Q&A, striving to respond as clearly and justly as I could to a list of tough questions about EB-5 visa availability and allocation. Thanks to CanAm for sponsoring the effort! There are many opportunities to get 1-2-sentence answers to EB-5 questions; this is your chance to get the 1-2-page response to your question.  

IIUSA EB-5 Q&A

IIUSA came out with an important and helpful Q&A resource this week for a wide audience.  IIUSA’s Frequently Asked Questions (FAQs) about the EB-5 Regional Center Program was developed by IIUSA’s Best Practices Committee as a practical guide for stakeholders involved in EB-5 transactions. The document is just 36 pages long but quite comprehensive – it could be a mini-book with the title “what you need to know to use EB-5.” A total of 78 questions cover a range of topics including investments, job creation, regional centers, projects, financial oversight, marketing and compliance, and the EB-5 immigration process. A lot of work, expertise, and experience obviously went into this document. The answers are clear and solid across a range of disciplines, and I recommend it as a source of general EB-5 knowledge for anyone involved in the project or investor side of EB-5.

USCIS EB-5 Q&A

I’ve been meaning to mention that on May 15, USCIS consolidated its EB-5 Q&A into one EB-5 Questions and Answers document linked to the USCIS EB-5 Resources page. The USCIS Q&A covers a range of questions about USCIS policy application, and particularly questions related to RIA implementation. I keep an eye on this page and save versions, because Q&A changes can quietly disclose revised USCIS policy interpretations. FYI if you track this as well, here’s a link to my redline of the May 15, 2025 version of the Q&A compared with the previous version as of July 17, 2024.

CSPA Policy Change

Last week, USCIS announced updated policy on the CSPA Age Calculation. “We are updating the Policy Manual to clarify that a visa becomes available for the purposes of Child Status Protection Act age calculation based on the Final Action Dates chart of the Department of State Visa Bulletin. The new guidance applies to requests filed on or after August 15, 2025.” Consistent with the administration’s goal to restrict immigration, the new policy will reduce the number of children who qualify to immigrate with their parents. It’s particularly concerning for EB-5 investor families from China and India who face long waits for their priority dates to match Final Action Dates. At least, the policy change applies prospectively to applications filed after the policy takes effect on August 15. Your lawyer can explain how this policy change may affect your children. See also articles on the policy change from Carolyn Lee and WR Immigration. Also note that while you’re asking your lawyer about CSPA bad news, you might also ask about the limits of the status conveyed by having a pending EB-5 I-485, EAD, and Advance Parole — and how to stay safe, especially in case of job change. It’s wise to be informed of potential worst-case scenarios when a hostile administration is interpreting the rules.

September Visa Bulletin and I-485 data

The September 2025 visa bulletin is out, with no changes to EB-5 dates but a note that “Visa Office expects to reach FY-2025 category limits in most employment-based preference categories during August and September. If at any time an annual limit were reached, it would be necessary to immediately make the preference category ‘unavailable’, and no further requests for numbers would be honored.” Reaching limits is good news: better for visas to be fully used than wasted. Considering the low numbers reported through May, however, the “most categories” maxing out FY2025 visas likely do not include EB-5 Rural, High Unemployment, or Infrastructure.

Monthly DOS and I-485 reports haven’t been published yet since May, but here FYI are my summaries of the May 5 pending I-485 inventory report, compared with the corresponding report from the start of FY2025.

EB-5 Webinars (Mandamus, Timing, Visas)

CanAm has been hosting webinars on a variety of hot EB-5 topics. I particularly appreciated the conversation with John Pratt on Avoiding and Addressing Delays in the EB-5 Process: Planning & Litigation (jump to minute 17 to hear John discussing the questions all EB-5 investors have about Mandamus actions) and the conversation with Joey Barnett and Charlie Oppenheim on EB-5 Visa Allocations and FY2026: Why the Numbers Matter More Than Ever. And you can tune in next week to hear more from Joey as well as Nicolai Hinrichsen, Min Wu and me on the topic of EB-5 Backlogs, Strategy, and What Investors Need to Know Now. (As someone with a face for whitepapers, I mainly recommend the written word for my backlog insights — but the other panelists have good insights! And I may be publishing another article soon with some outtakes from my slides.)

Blog support

If you benefit from this blog, just a reminder that I have a Paypal link available to help support the time spent in updates and making new resources. (Thanks Phuong Le for being a supporter and reminding me to make the contribution option visible!)

Good news (CIS Ombudsman, Sustainment litigation, good faith investor litigation, FOIA on Security Checks)

CIS Ombudsman Restored

I had mourned in March when the Administration shut down the CIS Ombudsman, which exists to help resolve problems with USCIS and improve USCIS processes. The Ombudsman committed considerable effort in 2024 to researching and communicating with USCIS about EB-5 issues, and we couldn’t afford to lose them. I rejoiced when a reader brought to my attention that the office has been restored as of May. The Ombudsman website was updated on May 23, 2025 with the note: “The Office of the Citizenship and Immigration Services Ombudsman continues to exist and will perform its statutorily required functions.” I don’t know how many former Ombudsman staff can have returned from administrative leave, but at least the Request Case Assistance function is live again.

Sustainment Litigation

The litigation around the EB-5 sustainment period has reached a good milestone. Yesterday Judge Ana Reyes issued an Order in IUSA vs. DHS et al. that does not revert to the legacy sustainment requirement linked to Conditional Permanent Residence.

In the previous round of filings, Defendant DHS had asked the judge to hold the lawsuit in abeyance pending rulemaking, while Plaintiff IIUSA had asked the judge to vacate USCIS’s 2-year sustainment interpretation pending rulemaking. We waited with bated breath, wondering whether the judge was about to doom the industry to pre-RIA sustainment rules and/or confusion for as long as it takes to complete notice-and-comment rulemaking on RIA.

Thankfully, Judge Reyes did as DHS requested. She notes in the July 29 Order that the law did edit the sustainment requirement (“With the RIA, now immigrant investors’ investment ‘is expected to remain invested for not less than 2 years.'”), that the USCIS guidance on this change is “not (yet) final agency action,” and that a formal rule-making process is forthcoming with a Notice of Proposed Rulemaking slated to be published in November 2025. The NPRM will be followed by a notice-and-comment period, which will eventually be followed by a Final Rule. And after that, if the Final Rule does not address the Plaintiff’s concerns, then “the parties and Court can take up the final rule as necessary.”

I’m particularly happy to see the IIUSA press release celebrating this ruling as a win for IIUSA, which it is. Pushing USCIS to formal rulemaking is the one laudable goal of the IIUSA litigation, and IIUSA is so right to shift its weight to that solid point. The benefits extend beyond the sustainment issue, as we’re overdue for rulemaking to clarify and implement many aspects of RIA. I’m thankful that we finally get a deadline for this proper formal process to start. Some individual regional centers may want to continue to pursue other litigation arguments. But if any want to press the toxic contention that RIA intended to codify the pre-RIA sustainment requirement, let them come out and do so under their own names. With another Regional Center sunset looming, IIUSA needs high ground and a unifying role.

The rulemaking process may be lengthy. The last EB-5 regulation started with an NPRM and notice and comment in 2017, and resulted in a Final Rule in 2019 that was promptly challenged and ultimately vacated by litigation in 2021. I won’t be surprised if we get a new EB-5 law in 2027 before we get a chance to see any final result from the rulemaking process set to start with an NPRM in November 2025. I don’t know what sustainment period nuances will ultimately be defined by a final rule or rewritten in new law.  But in the interim, I’m glad that the status quo is the USCIS website guidance on RIA’s 2-year minimum sustainment period, not a complete lack of guidance or the horrors of CPR sustainment.

Good Faith Investor Protections

Subsection (M) “Treatment of Good Faith Investors Following Program Noncompliance” is another positive part of the EB-5 Reform and Integrity Act that needs implementing. Subsection (M) offers some opportunity for blameless investors in troubled regional centers and projects to salvage their immigration process by changing affiliation or moving investment. I wrote about this last year in the article What happens to investors after regional center termination. But the Subsection (M) provisions are confusing and investors have faced difficulty in claiming protections – partly due to USCIS delay in terminating non-compliant regional centers. Now litigation is getting involved, with Galati Law leading the way. See the articles EB-5 Investors Sue USCIS Chief for Failing to Protect their Good Faith Investments as Required by Law and The Fight to Protect Good Faith EB-5 Investors.

FOIA on National Security Checks

I should also note tireless efforts by John Pratt and Ed Ramos to litigate for EB-5 integrity. They recently assisted AIIA to obtain a trove of FOIA documents from USCIS on how the Investor Program Office screens EB-5 petitioners for national security risks, including extreme vetting of Chinese nationals. For a summary of insights from the FOIA response see the article AIIA FOIA Series: Hidden USCIS Adjudication Standards – National Security Checks.   

I Sing the New Gate, Gleaming

I’m about to publish a serious post explaining my updated analysis of the EB-5 visa backlog and wait time situation. But while I labor over that presentation, I can’t help a quick reaction to two emails in my inbox today. One from Google Alerts, flagging the latest social media comments about the Trump Gold Card proposal. And another from the Academy of American Poets, saying they’ve been notified by the NEA of a grant terminated because “fostering public interest in poetry no longer aligns with the Administration’s agenda.” Okay then.

I haven’t talked much about the Gold Card proposal because Congress seems disinclined to make it legal. And surely President Trump as a champion of border sovereignty wouldn’t actually finalize an extralegal pathway to admission, with Howard Lutnick and Elon Musk in the role of coyotes, no matter what’s said on X. But I do worry that the ongoing Gold Card talk could tarnish EB-5, which is in the law, not for the ultra-wealthy, and a jobs program not a golden visa program. And being also a fan of American poetry, I enlisted AI to draft a Gold Card comment in the form of an homage to Walt Whitman.

ChatGPT, please write a poem in the style of Walt Whitman for the Trump Gold Card. The Gold Card is a proposed pathway for foreign nationals to gain admission to the United States in exchange for a $5 million cash payment facilitated by Elon Musk and Howard Lutnick. The Gold Card is different from EB-5, a form of legal immigration that does not sell green cards but requires investing in a business that creates jobs.

Certainly. Below is a poem in the style of Walt Whitman, evoking his grand, rolling cadence and expansive vision as it contemplates the Trump Gold Card in contrast to the traditional ideals of American immigration:

---

“I Sing the New Gate, Gleaming”

I sing the nation—its cities and vast rivers, its ports and fields,
I sing the immigrant—her hands rough from labor, his eyes bright with the sweat of promise.
But now I behold another vision:
Not Ellis Island’s lantern, not the judge’s oath, nor the slow bloom of lawful toil—
But a card—golden, shining, swift in passage.

Lo! What is this, with luster not from liberty but lucre?
The Trump Gold Card!
Brass-banded invitation to the banquet of the Republic,
Price: five million and no questions asked.

By Elon the celestial dealer of dreams and rockets,
By Lutnick the ledger-bearer of the high towers of finance—
The gate swings open without a line, without the grind,
No job promised, no child lifted, no sweat pressed into concrete.

This is no EB-5, that old contract of hope,
Where green cards grew not from vaults but from vineyards,
From startups in Detroit and factories in Fresno,
From immigrants who gave and gave, and built what they would one day call home.

But the Gold Card?
O America, whose flag once waved to masses yearning to breathe free,
Do you now raise your arms only to the richest stranger?

I see them coming—not with papers or prayers,
But with wire transfers,
With yachts idling in the harbor of justice.

I do not scorn the foreigner, no—
But I lament the barter of dignity,
The bypass of law not for mercy but for millions.

O nation, you who once took pride in the forge,
In the welder —
Will you trade that fire for the glint of bullion?

Yet still I sing, because I must.
For I see too the quiet ones who still arrive by EB-5,
Whose feet kiss our soil
Not as buyers, but as builders.

Let the Gold Card gleam,
But let us ask what is gained—and what is lost—
When a nation sells its doors.

Updates (source of funds litigation, options after I-829 denial, election impacts)

Path of Funds Litigation

Path of funds has been a major factor in I-526 denials, especially since 2019, and behind many appeals to the AAO. Is USCIS right to demand the tracing of every penny so many steps beyond the EB-5 investor? The AAO generally upholds USCIS decisions, but now a federal judge has weighed in with more nuance, and nice ammunition for future appeals. To quote Battineni v. Mayorkas:  “In sum, the Court concludes that while the regulations require a petitioner to ‘show’ that their funds were obtained from a lawful source, they do not require the petitioner to ‘trace every penny’ beyond their initial acquisition.” For more, see: Alert: Another Victory for the Klasko Immigration Litigation Team.

Other Resources (I-829 denial options, RC audits, RC sanctions, I-526E data analysis)

The latest IIUSA Regional Center Business Journal features many good articles. I’d particularly like to highlight “Review of USCIS I-829 Denials in Removal Proceedings” (John P. Pratt, Edward Ramos, Elizabeth Montano, and Daniel B Lundy) which gives valuable information about the process and investor options following I-829 denial. Regional center operators will want to read Laura Kelly’s article “What Happens During a USCIS Regional Center Audit? Now We Know,” and Robert Divine’s article “EB-5 Sanctions: Real Danger with Possible Relief.” Note also that Li Lee’s full I-526/I-526E analysis, previously available just as an excerpt, is published in full here as “Latest Data on I-526E and I-526 Filings, Adjudications, and Withdrawals: Country-Specific Trends in EB-5 Demand, Investment Preferences, Case Processing, and Reserved Visa Waitlists.”

Election Impacts

What will happen to EB-5 under the new presidency and Congress? If you’d like some comfort, I recommend Carolyn Lee’s discussion with Christine Chen in this webinar: “Navigating EB-5 Amid Political Change: How Recent Elections Could Shape the Future of Investment Immigration.” They sympathetically review many of the questions and concerns that EB-5 immigrants may have today, bringing perspective as people who have faced the challenges of EB-5 through multiple administrations. To quote Carolyn: “It’s going to be as difficult as it ever was, and perhaps not more so.” I’m also looking forward to the analysis in IIUSA’s upcoming webinar “Post-Election Outlook & EB-5 Advocacy,” coming up on Wednesday, December 11 at 12 PM ET. In the article “Recapping the 2024 Elections and the EB-5 State of Play” (November 11), IIUSA discusses the Congress-level changes that may be even more consequential to EB-5 than the presidency.

Last time around, in 2016, we were excited/anxious that a President Trump might pay attention to EB-5, being a real estate developer with EB-5 projects in the family. But I couldn’t tell that he ever did. EB-5 was tangentially affected during his previous presidency has part of a general turn toward “extreme vetting” of immigrant petitions and reallocation of USCIS resources toward “other priorities.” But it took a couple years for those trends to translate into reduced processing volumes and increased processing times for EB-5. The really devastating impact to processing and visa issuance in that period did not come from administrative choices, but from COVID-19. Former President Trump reauthorized the regional center program five times, though likely unknowingly as it was just a sentence buried in 1000-page spending bills for his signature. Painful new EB-5 regulations were finalized under his administration, but drafted before he arrived.

As resident EB-5 chart-maker, I made a few pictures of what happened with EB-5 and immigration generally under the previous Trump administration.  The information on IPO staffing comes from stakeholder meetings and litigation, petition processing numbers are from the USCIS data page, and visa issuance numbers from the DOS statistics page. I’ll let you look at the numbers and guess whether correlation means causation. The year 2019 interests me particularly, being the year when policies had had a chance to take effect but the Pandemic hadn’t skewed things yet. If past performance predicts future results, I would expect EB-5 processing to slow within a couple years as fewer staff have to perform more steps, and legal immigration numbers to fall only fractionally (barring the excuse of another pandemic, or unless Steven Miller is able to realize all his evil plans).

Webinar on new I-526E filing and adjudication intel

Just a reminder to sign up for this week’s IIUSA webinar New EB-5 Data and Emerging Trends on I-526/E Filings, Adjudications, and Processing Times on Wednesday October 2 at 12 ET. We’ll discuss findings from the project undertaken by Li Lee with leadership from Christine Chen and eleven regional center operators to collect and analyze data on actual I-526E and I-956F processing times (report now available here). We’ll also present critical new TEA backlog information that IIUSA just received in response to a FOIA request spearheaded by Brandon Meyer (report now available here). How full are the queues for EB-5 visas? At what rates are the queues advancing, and in what order? The new data provides essential intel for regional centers and project companies considering their future offerings and markets, and for prospective and current investors concerned about timing.

Addressing EB-5 Visa Allocation Questions

A project I’ve been working on for the past few months is now live: “Essential EB-5 Visa Allocation Questions and Answers.” My dream has been to put together an FAQ that tackles the basic questions that confuse discussions about EB-5 visas – addressing which EB-5 categories are available and to whom, how visas get allocated and when, how country caps work, what retrogression is and whom it affects, what choices applicants can make about visa allocation, and how EB-5 visa supply works.

My goal was not to compile off-the-cuff responses, but to create a solid work of reference where short answers would each be followed by a robust reference section with links to places where the topic has been addressed in the law, USCIS policy and guidance, USCIS or DOS Q&A or stakeholder meetings, litigation, etc. If you read an answer and think “but that’s not what I heard from X,” you’ll be able to scroll to the base of the post and follow the reference links, see where I found the information presented, and draw your own informed conclusions. If you read an answer and think “ok I understand A but this raises a question about B,” you can follow the cross references to read other related Q&A.  

The current content of the Q&A is dated as of August 2024. I look forward to making this a dynamic resource, with updates as new guidance and data emerge over time.

This project required a lot of work, first in expanding and reviewing the research I’ve been collecting over my years in EB-5, then in striving to distill this background into a basic Q&A format.  I was able to complete the work thanks to finding a patron who shared the vision. CanAm commissioned the FAQ, reviewed it, and has now published it as a PDF whitepaper, plus divided into individual website postings for convenient reference, and with a Chinese translation. In a world full of sales-y clickbait, I’m thankful to find someone willing to invest in what I want to write – content that’s not necessarily fun or profitable, but carefully informative and aiming for the common good.

Here follows a quick quiz, which you can take to help judge whether you already know and agree with everything in the Q&A, or will benefit from following the links and checking out my references:

1. True or false: TEA investors with 2021 priority dates can receive TEA set-aside visas.
2. True or false: TEA investors with 2023 priority dates can only receive TEA set-aside visas.
3. True or false: Direct EB-5 investors have access to different visas with different timing from regional center investors.
4. True or false: No one country can get more than 7% of EB-5 High Unemployment or >7% of EB-5 Rural visas.
5. True or false: High EB-5 demand means that Taiwan and South Korea may have visa bulletin cut-off dates in the future.
6. True or false: Visa applicants from low-demand countries with no country cap can never experience visa bulletin retrogression and visa wait times.
7. True or false: Filing I-485 locks in access to an EB-5 visa as of the time of filing I-485.
8. True or false: EB-5 is likely to have many more than 10,000 visas in most future years, thanks to rollover and carryover.
9. True or false: The time of choosing an EB-5 investment and filing I-526E is the only point at which the EB-5 investor can participate in visa allocation decisions.

The correct answer to each of these questions is “false.” Surprised? Check out the FAQ to read more! And if you still have questions after reviewing the FAQ, or think of Q that should be added, reach out to CanAm or me to discuss further. We want to make this as useful as possible to the community, to help put everyone on the same page with solid background for talking about EB-5 visas.

Recap of new EB-5 data and guidance (FY2024 Q1, NVC wait list, visa bulletin, Q&A, RC Audits, Ombudsman)

While I rushed to help clients wrap up business plans before the April 1 USCIS fee increase, the government has also been admirably productive. This post recaps my “to report” list of new EB-5 data and new EB-5 guidance published over the past month and a half.

USCIS publishes FY2024 Q1 Processing Data

The USCIS Immigration and Citizenship Data page was updated last month with stats for EB-5 form receipts and adjudications in FY2024 Q1 (October to December 2023). As usual, I updated my Processing Data page with charts for the official quarterly performance numbers. I also updated charts of unofficially-obtained monthly performance data.

USCIS rendered decisions on 19 I-956F and approved 194 I-526E in Q1. The median I-956F processing time was 15.2 months. Processing volumes for pre-RIA petitions remained elevated (and got even better in 2024, according to my unofficial data).

Another 581 I-526E/I-526 were received in Q1, bringing the cumulative total of post-RIA petition filings to 3,401. It will be interesting to see what happens when all those people reach the visa stage, bringing spouses and children, considering the number of set-aside visas available.

DOS published November 2023 NVC Wait List

Department of State published the November 2023 NVC waiting list, providing a snapshot of how many EB-5 visa applicants were registered at the National Visa Center as of November 1, 2023.  The report shows that over 33,600 Chinese, over 1,600 Indians, and over 4,600 rest of world applicants were queued up for consular processing at the start of the fiscal year. The number of people qualified for I-485 status adjustments is unknown.

Visa Bulletin through May 2024

As of May 2024, the Visa Bulletin Chart A and Chart B dates for EB-5 are still the same as DOS set at the start of the year in October 2023. No surprise, considering how many people qualified for visas at those October dates. The April 2024 visa bulletin included a note at the end: “EMPLOYMENT-based categories: Very little to no forward movement is expected in the coming months…”

Visa Availability and Monthly Visa Issuance through February 2024

DOS has 14,169 unreserved EB-5 visas and 8,136 set-aside visas available to distribute in FY2024 (including carryover of unused set-aside visas).  

Monthly statistics show that in the first five months of FY24 (October to February), DOS issued 4,052 unreserved EB-5 visas (including 1,907 in Guangzhou and 286 in Mumbai). That’s an average total of 810 visas/month issued through consulates. Visa issuance will need to exceed an average 1,181/month overall to avoid wasting unreserved visas this year. We need to find ears for Carolyn Lee’s good point that visas carried over from the set-aside categories are outside the normal rollover cycle, and should never be lost to EB-1/EB-2 but stay with EB-5 until used by EB-5.

Zero reserved visas had been issued through consulates as of the end of February 2024. (I’ve heard of a few through status adjustment.) As a reminder, here are the codes for EB-5 visas, as defined by a posting in the July 2023 Federal Register.

USCIS EB-5 Q&A Updated

The page EB-5 Questions and Answers (updated Dec. 2023) linked to the EB-5 Resources page was updated on April 1 to delete mention of biometrics fee in connection with I-956H, and again on April 3 to add a subsection titled “Legacy Form I-526 Months of Inventory Update.” The new subsection announces USCIS intention to add another data point to the USCIS Processing Times page: “months of inventory,” calculated as remaining I-526 inventory divided by average completions over the past six months. This makes sense, because what matters for prediction is not how long I-526 has taken in past experience (as reflected in the scary 80^th percentile data point reported on the USCIS page), but instead how long processing will take going forward (which will be a function of inventory and adjudication volume). “For example, for the month of March 2024, the 80th percentile processing time was 54.5 months while the Months of Inventory was around 14 months.” The Processing Times page has not been updated yet, but I look forward to the inclusion of this meaningful data point.

USCIS Guidance for Regional Center Audits

This week USCIS created a new EB-5 Regional Center Audits webpage for regional centers to learn more about the auditing process, including the role of the audit team, how to prepare for an audit, and participating in an audit. Bookmark the audit page so you don’t lose it, because it’s not currently linked to any of the main EB-5 pages on the USCIS website. The page includes a lot of helpful detail about the standards and process involved in an audit, and FAQ for regional centers and investors.

CIS Ombudsman publishes EB-5 Engagement Notes and Q&A

Since last year, the CIS Ombudsman has been aggressive in meeting with multiple EB-5 stakeholder groups and working with USCIS to get answers and solutions to EB-5 questions and concerns. The Ombudsman hosted an Engagement with USCIS on the EB-5 Immigrant Investor Program on October 30, 2023, and has now published the engagement presentation plus an extensive EB-5 Q&A on the engagement page. Apparently it took six months to get government signoff to publish these documents, and no wonder since they address hot button issues around RIA implementation, including USCIS policy for the investment sustainment period. Be sure to read the Q&A, which generously covers several points that aren’t addressed elsewhere and weren’t covered live in the meeting.

I-956F EB-5 Business Plan Objectives and Best Practices

Every year since 2016, industry colleagues have honored me with their vote as one of the Top 5 Business Plan writers in the EB5 Investors Magazine poll. I appreciate the votes of confidence through the years and especially now, as the work of a business plan writer feels particularly challenging.

I spoke recently with an entrepreneur who is a business planning veteran in his own right, with decades of experience as a founder and executive. He already has a beautiful pitch deck for venture capital investment, and asked “what more do I need for EB-5?” and “where can I go to read about the requirements and what works for a business plan in the EB-5 space?” We had a long conversation, because much of what an entrepreneur practically needs to know about EB-5 isn’t written down anywhere. I usually blog about industry developments rather than my day job, but conversations like this remind me of the need to also write about business plans.

The major context for an EB-5 business plan today is the Form I-956F Application for Approval of Investment in a Commercial Enterprise, which requires “a comprehensive business plan for a specific capital investment project.” The USCIS Policy Manual Chapter 5(B) specifies that “A project application must include a credible and comprehensive business plan that contains, at a minimum, a description of the business, its products or services (or both), and its objectives.” Policy Manual Chapter 2(B) further defines a comprehensive business plan based on the precedent decision Matter of Ho.

The official USCIS guidance provides, at least, a partial content checklist for an EB-5 business plan. But a good EB-5 plan needs more than an appropriate table of contents. Strategy requires thinking about what the document needs to accomplish, and organizing content and presentation around those objectives.

I-956F EB-5 Business Plan Objectives and Best Practices

Objective 1: To describe a business proposal that works for EB-5.

Business plan best practice: Before putting pen to paper, discuss the business proposal with respect to the key EB-5 requirements for investment of capital, new commercial enterprise, job creation, targeted employment areas, and regional center sponsorship. The most beautiful presentation cannot salvage a plan to do something that EB-5 can’t do. The AAO record of EB-5 denials is littered with plans describing a debt arrangement with the NCE, direct job creation by an affiliate or third-party management company, and job creation by acquisition, for example – all valid plans from a business perspective but not a fit with technical EB-5 requirements. An informed and honest business plan writer knows the EB-5 requirements and their practical application, can identify potential challenges and dealbreaker issues upfront for a specific proposal, and will not write up a plan with no chance of EB-5 success.

Objective 2: To provide a document that is appropriate for filing with the Form I-956F, to support project approval by USCIS.

Business plan best practices: Know the USCIS I-956F adjudication checklist, and organize the EB-5 plan document with summaries and content headings to flag content responsive to that checklist. (The checklist is partially based on Matter of Ho, as expanded with items disclosed in Requests for Evidence.) Know the evidence expectations baked into the Matter of Ho standard, and help to organize third-party evidence in support of the business plan. Write and format the business plan for how it will be read: printed out on letter-size paper in the hands of a civil servant who is pressed for time and easily confused, not required to have any business or financial background, not able to easily request clarification, and predisposed to disbelieve the plan except as validated by independent evidence that he can verify in exhibits and on the Internet. And consider the timing context. I used to write I-526 plans with an eye on the likelihood that they would be read by USCIS at least two years in the future. Today, I write I-956F plans with an eye on the probability of review within a year.

Objective 3: To avoid content that could cause the I-956F project application to be denied by USCIS.

Business plan best practice: Work carefully to avoid discrepancies, the most common document problem behind EB-5 denials.  The EB-5 plan should ideally avoid internal discrepancies, discrepancies with other parts of the application including economic impact report and offering documents, mismatch with EB-5 requirements, and mismatch with how things will eventually turn out.  Business plans in the wild are dynamic, and it takes care and discipline to freeze a moment-in-time picture that’s consistent throughout application documents. An important part of my process is to seek out apparent discrepancies and preemptively iron them out before USCIS has a chance to seize on them as faults casting doubt on the credibility of the entire package. This is also a reason for the “lucid” in Lucid Professional Writing, because one method for avoiding discrepancies is to minimize repetition.

Objective 4: To lay a roadmap that will be feasible to follow.

Business plan best practices: Present the most conservative feasible scenario when it comes to schedule, budget, and financial projections. Strategize about areas in which the business plan is most liable to change, and bake flexibility where possible into those aspects of the business plan presentation (avoiding unnecessary detail and mentioning caveats and alternatives). Think about the evidence that will need to be provided in support of projections, and shape the plan as needed to support the evidence that will be practically possible.  The EB-5 plan should ideally set the client up to over-deliver on promises, avoid the need to file expensive amendments, avoid fatal material change, and avoid impossible evidence requests.

Objective 5: To tell a coherent story that fits the EB-5 plot and will be compelling to EB-5 investors and USCIS.

Business plan best practices: Know the story that an EB-5 plan needs to tell – a story about EB-5 capital deployed to create jobs and support an immigration opportunity. Understanding the EB-5 plot, tell that story with bright lights around the answers that EB-5 investors and USCIS need to find about use of investment, basis of job creation, and how the proposal lines up with immigration considerations. EB-5 investors and USCIS adjudicators approach documents with very different questions than are in the mind of a venture capital investor or institutional lender. A good EB-5 plan differs from a pitch deck or SBA plan for the same proposal because it is responsive and relevant to EB-5-specific questions and considerations.

Are good EB-5 plans worth the effort and investment?

The EB-5 space is full of sloppy business plans – 80-page cut-and-paste collages of undigested content that don’t bother to tell a clear or relevant story, but still succeed when the reader just accepts the plan because that’s easier than reading it. The snow job strategy is particularly advisable for a proposal with questionable EB-5 fit, because it’s difficult to question a mountain of disorganized information. And an EB-5 plan can coast on a nice cover so long as investors aren’t necessarily given the chance and USCIS adjudicators don’t always take the time to open and read the plan. But I still believe in the value of a tight, well-drafted EB-5 plan. Good projects deserve professional documents – for the sake of first impressions on the front end and protection on the back end. No one wants to wait for a nasty RFE or litigation to find out that the business plan, now suddenly Exhibit A, is unintentionally full of sloppy errors, omissions, and misrepresentations. And attractive, relevant documents can play an important role in supporting investment decisions and immigration approvals.

Future articles will discuss the EB-5 business plan content section by section, and FAQ on what works from a practical business perspective. I should also replicate these articles for E-2 and L-1, visa categories with their own particular considerations for the business plan.