The Department of Homeland Security (DHS) has published a proposed rule implementing and codifying many provisions of the EB-5 Reform and Integrity Act of 2022 (RIA). While many of the changes have already been in effect since the RIA was enacted, the proposal provides important regulatory guidance, introduces several new definitions, and proposes a significant increase in the investment threshold for certain projects.
DHS will accept public comments for 60 days following publication in the Federal Register on July 2, 2026.
Ten Things to Learn from the New EB-5 Immigrant Visa Proposal
1. The Rule Mostly Codifies Existing RIA Requirements
The proposal largely formalizes statutory changes enacted under the EB-5 Reform and Integrity Act of 2022, including enhanced integrity measures, Regional Center oversight, investor protections, audits, and compliance requirements. Many of these provisions have already been implemented in practice since March 2022.
2. DHS Proposes a New $1.4 Million Investment Threshold for High Employment Areas
One of the proposal’s most significant changes is the creation of a new investment category for High Employment Areas (HEAs).
The minimum investment for projects located in a High Employment Area would increase to $1,400,000, compared with the current standard minimum investment of $1,050,000.
This represents the first time DHS has formally defined High Employment Areas as a separate investment category.
3. DHS Defines “High Employment Area”
The proposed regulation defines a High Employment Area as an area where the national average unemployment rate is at least 150% of the unemployment rate in the investment area.
This new category is distinct from Targeted Employment Areas (TEAs), which continue to qualify for the reduced $800,000 investment threshold.
4. Capital Requirements Would Be More Clearly Defined
The proposal provides detailed guidance regarding what qualifies as “capital.”
Among other things, DHS would:
- Require assets to have objectively determinable fair market value;
- Limit qualifying trusts to revocable living trusts accessible by the investor;
- Codify longstanding restrictions on impermissible loan financing; and
- Reinforce existing source-of-funds requirements.
The proposal also confirms current DHS practice permitting digital assets as a lawful source of capital if they satisfy statutory requirements, while specifically requesting public comment on whether cryptocurrency and similar assets warrant separate evidentiary standards.
5. Business Plans Will Face More Defined Standards
The regulation would codify existing precedent requiring comprehensive business plans to include detailed information regarding:
- hiring schedules;
- construction timelines;
- organizational structure;
- capital requirements; and
- marketing plans.
Regional Centers should expect continued scrutiny of project documentation supporting job creation.
6. Investors Must Demonstrate Capital Is Truly “At Risk”
The proposal clarifies what it means to have “invested” or to be “actively in the process of investing.”
Simply expressing an intent to invest will no longer be sufficient. Investors must demonstrate that capital has been committed and placed at risk no later than the date they obtain conditional permanent residence.
The proposal would also require that invested funds remain available to the job-creating entity at the time the immigrant petition is filed.
7. Redeployment Rules Become More Defined
DHS proposes limiting redeployment to Regional Center investments where necessary to maintain the investor’s capital “at risk.”
The proposal provides greater certainty regarding when redeployment is permissible following repayment of the original investment.
8. Regional Centers Will Face Expanded Compliance Oversight
Consistent with the RIA, DHS would formally codify extensive oversight authority, including:
- mandatory audits at least every five years;
- document retention requirements;
- site inspections;
- expanded reporting obligations; and
- formal compliance procedures.
The proposal also codifies enforcement tools ranging from violation notices and monetary penalties to suspension and permanent debarment.
9. Biometrics Become Part of the EB-5 Process
The proposed regulation expressly authorizes USCIS to collect biometrics during adjudication of EB-5 immigrant petitions.
Although USCIS increasingly requires biometrics across many immigration benefit requests, the proposal formally incorporates this authority into the EB-5 regulatory framework.
10. Priority Date Retention Receives Important Clarification
The proposal provides welcome guidance regarding priority date retention.
Investors generally would be permitted to retain their established EB-5 priority date if:
- a Regional Center is terminated;
- a new commercial enterprise is debarred;
- certain material changes occur; or
- other qualifying circumstances arise,
provided the investor takes appropriate steps to preserve eligibility under the regulations.
Looking Ahead
The proposed rule reflects DHS’s continued effort to fully implement the EB-5 Reform and Integrity Act of 2022 while providing greater clarity regarding longstanding agency practices. Although much of the proposal codifies existing policy, several provisions—including the proposed $1.4 million investment requirement for High Employment Areas and new regulatory definitions governing capital, investment timing, and redeployment—could significantly affect future EB-5 planning and project structuring.
Stakeholders have 60 days following publication in the Federal Register to submit comments before DHS considers issuing a final rule. Given the proposal’s potential impact on investors, Regional Centers, and project developers, interested parties should carefully review the proposed regulations and consider participating in the rulemaking process.
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