DHS has published a proposed rule to implement the EB-5 Reform and Integrity Act of 2022, adding detail to investment amounts, capital sustainment, regional center compliance, investor protections, and enforcement. The rule is not final yet: the public comment period runs for 60 days, through August 31, 2026.
The notice of proposed rulemaking is a 358-page document covering much of the EB-5 Immigrant Investor Program. It arrives more than four years after the Reform and Integrity Act became law and roughly seven months after USCIS told a federal court to expect the rule by November 2025.
Much of the proposal writes 2022 statutory changes into regulation, but DHS also proposes new rules of its own, including a $1.4 million investment tier for certain high-employment areas and a graduated sanctions regime for regional centers.
Proposed EB-5 Investment Amounts
The proposal keeps the main post-RIA EB-5 investment thresholds in place:
- $800,000 for targeted employment area projects, including rural or high-unemployment locations
- $800,000 for infrastructure projects
- $1,050,000 as the standard investment amount elsewhere
- $1,400,000 for projects in a “high employment area”
A high employment area is described as part of a metropolitan statistical area that is not in a targeted employment area and is experiencing unemployment significantly below the national average.
The $800,000 and $1,050,000 thresholds have already applied since the RIA took effect in March 2022. The proposal updates regulations that still show the old pre-2022 amounts of $500,000 and $1,000,000, so some of the apparent increase reflects outdated regulatory text rather than a new cost for current investors.
Industry commentary in the source article suggests the $1.4 million tier may have limited use. According to DHS approval data cited in the article, 99.9% of regional center investors chose TEA projects at the reduced amount.
All EB-5 investment amounts are scheduled to adjust for inflation on January 1, 2027, and every five years after that.
Two-Year Capital Sustainment Rule
One of the most important investor provisions confirms that post-RIA EB-5 capital must remain at risk for at least two years from the date it is made available to the job-creating entity.
This is shorter than the older interpretation that often required capital to remain at risk throughout conditional residence. That older approach could force regional centers to redeploy repaid funds into new projects while investors waited through visa backlogs.
Under the proposed rule, investors may be able to recover capital after the two-year period if they have also met the job creation requirements, even if their visa remains delayed.
DHS states that the rule would reduce the burden on investors who otherwise had to keep capital invested for extended periods due to circumstances beyond their control, including visa backlogs. The source article notes that this is especially relevant for applicants from India and China, who face long queues.
Protections if a Regional Center Fails
The proposal also details “good faith investor” protections when a regional center is terminated or debarred through no fault of the investor.
Affected investors would receive a defined 180-day window to reassociate with a compliant sponsor. Their priority dates would survive the move.
If an investor has already completed the two-year sustainment period and job creation requirement, the source article says the investor may not need further action to preserve the case.
This is a significant change from the older regime, where termination of a regional center could endanger all investors connected to it.
Cryptocurrency as Source of Funds
The proposed rule confirms USCIS practice of accepting cryptocurrency as a lawful source of EB-5 funds.
DHS does not propose crypto-specific evidentiary rules for now, but it invites public comment on whether separate rules should be created. The source article notes that this helps clarify an area that had previously been uncertain for investors using digitally sourced capital.
New Regional Center Penalties and Compliance Rules
The proposal creates a tiered penalty structure for regional centers.
Possible consequences include:
- Formal DHS notice
- Monetary penalties
- Flat fines for routine breaches
- Suspension
- Termination of regional center designation
- Debarment of entities or individuals from the EB-5 program
DHS gives $10,000 for a late annual statement as an example of a flat fine. Monetary penalties could reach up to 10% of the total capital invested in the enterprises involved. Failure to pay a penalty would itself be a sanctionable violation.
The rule also implements:
- The RIA audit program
- Fund administration requirements
- Mandatory registration of direct and third-party promoters marketing EB-5 offerings abroad
DHS estimates compliance will cost each regional center about $47,000 per year, but the source article notes that this may understate the real burden because it does not fully capture attorney time and case-specific problem handling.
DHS acknowledges that at least 87% of regional centers are small entities, meaning fixed compliance costs may fall hardest on smaller and single-project regional centers rather than large sponsors with dedicated compliance teams.
Key EB-5 Planning Dates
The rulemaking process now overlaps with major EB-5 planning deadlines:
- August 31, 2026: deadline for public comments on the proposed rule
- September 30, 2026: cutoff for the RIA’s grandfathering protection
- January 1, 2027: inflation adjustment to EB-5 investment amounts
- September 30, 2027: current authorization of the regional center program expires, unless renewed by Congress
The source article says EB-5 filings already reached record levels in 2025, and the approaching September 2026 and January 2027 deadlines may further compress demand.
The proposed rule is still subject to revision after DHS reviews public comments. Investors and regional centers should treat it as a planning signal, not a final rule.
Source article: www.imidaily.com
