September 8, 2026
The number one factor impacting the EB-5 market as we head into the fall is the expiration of the grandfathering provision on September 30, 2026.
When the EB-5 Reform and Integrity Act of 2022 (the “RIA”) was enacted in March 2022, it included a brand-new provision, Section 108, Protection from Expired Legislation, providing that DHS shall continue processing petitions associated with a regional center that were filed on or before September 30, 2026 and may not deny a petition or suspend or terminate the allocation of visas based on the expiration of the regional center program. Codified at INA § 203(b)(5)(S).
Known as “grandfathering,” this provision provides statutory protection for investors if the program lapses or expires—protection that had never previously been part of the EB-5 legal framework.
Key Takeaways:
While investors will no longer benefit from grandfathering after September 30, 2026, the deadline is not a hard stop for immigrant investor eligibility; USCIS will continue to accept and adjudicate Form I-526E petitions and I-956F project applications at least through September 30, 2027, at which time the regional center program will need to be extended.
EB-5 stakeholders have been and continue to advocate for an extension of the grandfathering deadline, along with an extension of the regional program past September 30, 2027.
Fiscal year 2027 appropriations legislation, which will likely be taken up in Congress’s lame duck session after the November 2026 midterm elections, will be another opportunity for Congress to act.
Depending on whether and when Congress acts to renew the EB-5 program, immigrant investor petitions may be affected in different ways. If the program is extended and there is no lapse, investors filing after September 30, 2026 will be unaffected.
We continue to remain confident that Congress will reauthorize the EB-5 program.
Since the passage of the RIA, the EB-5 region center program is achieving its goals of bringing investment and job creation to America’s rural and high unemployment areas.
With the EB-5 program more transparent than ever and with reduced risk thanks to the RIA’s integrity and compliance requirements, it would make no sense to let the program expire now. But it is likely that a short-term extension will be needed before Congress reauthorizes the regional center program permanently or for a specified period.
Background
After years of failed efforts to reform the EB-5 program, the legislation establishing the EB-5 regional center program lapsed at the end of June 2021.
USCIS then made the determination that it no longer had the authority to adjudicate new or pending filings related to the regional center program. The USCIS Immigrant Investor Program Office (“IPO”), which administers the EB-5 program, halted adjudications of pending Form I-526 petitions and I-924 applications.
The effect in the EB-5 industry was dramatic. Investors, many who had been waiting years and were on the precipice of receiving permanent residence (green cards), were stuck in limbo. Some investors chose to withdraw their petitions and seek the return of their investment funds, which created additional complexities in cases where capital had already been deployed into projects.
Just as the program was approaching a crisis point, Congress passed the RIA, including the grandfathering provision, which protects investors who file before September 30, 2026.
The RIA renewed the regional center program for a period of five years, meaning that it would sunset if not reauthorized before September 30, 2027.
Where did the grandfathering provision come from?
Having seen the anxiety and distress the lapse caused immigrant investors, the American Immigrant Investor Alliance (AIIA), an organization dedicated to informing, educating, and advocating on behalf of all EB-5 investors, led the grandfathering advocacy efforts.
Including this provision was a significant victory for AIIA and EB-5 investors, but there was one wrinkle: the expiration date for the grandfathering provision was set one year prior to the sunset/reauthorization date for the EB-5 regional center program.
“The grandfathering provision was a huge win for EB-5 investors, past and future,” said Ishaan Khanna, President of AIIA. “For the first time, our community has protections from the lapse or expiration of the EB-5 Regional Center program, but the gap between the grandfathering and the program expiration date creates new concerns for those considering an investment after September 30, 2026.”
Stakeholders are left to speculate as to why Congress created this one-year gap. Whether it was an oversight or an ill-advised effort to prevent a surge in filings, this is the text that was signed into law and what the industry, including EB-5 regional centers and investors, must contend with.
What will happen after the September 30th grandfathering date?
At first, nothing.
USCIS will continue to accept and adjudicate I-526E investor petitions and regional center project applications until September 30, 2027.
The question of what will happen to pending EB-5 petitions or applications that are filed on or after October 1, 2026 really depends on what happens on October 1, 2027.
As EB-5 attorney, Kyle Mitchell, explains “there are several possible scenarios for the future of the EB-5 program. The key is establishing a plan for you and your family alongside trusted immigration counsel who can inform you of the possible scenarios so that investors can factor in the legislative risk and make decisions on how and when to proceed accordingly.”
Here are the possible scenarios and their likely outcomes:
The EB-5 program is reauthorized on or before October 1, 2027.
This provides the best future for EB-5. In this scenario, Congress would pass legislation that extends the EB-5 regional center program. The program would continue, subject to any new provisions enacted by Congress. Pending petitions and project applications will remain in the queue and be adjudicated in due time.
The EB-5 regional center program is extended for a short period of time in a continuing resolution.
Since Congress seldom completes appropriations legislation for the coming year prior to October 1, which marks the beginning of the new fiscal year, they rely almost every year on a short-term funding patch, referred to as a continuing resolution. Continuing resolutions generally maintain the prior year’s spending levels while lawmakers debate the specifics of the coming year’s budget. The EB-5 program has been extended this way many times in years past.
In this scenario, any pending petitions and project applications would continue to be adjudicated since there has been no lapse in authority. And then, if the program is ultimately renewed permanently or for a specific period of time, as has been done previously, then we go back to the first scenario above.
The EB-5 program continues, full steam ahead. The EB-5 program is not renewed and authority for the program lapses.
In this case, USCIS likely would again determine that any petitions or applications filed on or after October 1, 2026 cannot be adjudicated. In 2021, USCIS held cases in abeyance, rather than denying or rejecting them, as negotiations on the future of the program were ongoing.
We believe this is an unlikely outcome, but it is possible.
What can we expect next?
The EB-5 program has broad support in Congress due in part to the fact that the RIA has largely addressed the problems that were present in the program prior to 2022. The solid footing EB-5 now stands on should make for an easier path to reauthorization, notwithstanding the challenges surrounding U.S. immigration law and policy.
In the event of a future lapse in program authorization, we expect that USCIS would apply the same kind of discretion and hold investor petitions and project applications for a period of months, the same way the agency did in 2021.
If USCIS decided to start denying cases filed on or after October 1, 2026 immediately after a program lapse, it would open the Agency to massive litigation risk.
Conclusion
First, investors should understand that while there is increased risk in filing an EB-5 petition after September 30, 2026, if the program is extended there is no harm, and the petition will be adjudicated.
If an investor simply cannot get their petition filed before the grandfathering deadline, they can still file after September 30, 2026 to take advantage of the current $800,000 investment level before it is increased in January 2027 to account for inflation and to lock in an earlier priority date, with hope the Program will be renewed in 2027.
Second, regional centers and new commercial enterprises (NCEs) should work to clearly address investor expectations and provide reasonable safety nets for investors who file after the grandfathering clause expires.
This may include provisions in offering documents providing for repayment of investors if their petitions are denied due to program expiration, or explanations of how investments will be maintained in case of program lapse and in hope of a future renewal of the EB-5 program.
Despite the uncertainty surrounding what may happen to the EB-5 program over the next 14 months, the approaching expiration of the grandfathering provision should not deter prospective investors from pursuing EB-5.
By working with trusted EB-5 counsel and an experienced regional center, prospective investors can develop a strategy that accounts for potential regulatory changes, minimizes risk, and aligns with their long-term immigration goals. In a period of uncertainty, careful planning, guided by experienced professionals, is the key to moving forward with confidence.
Gary N. Merson – President
Gary N. Merson is the President of ALC, bringing more than 25 years of experience in U.S. immigration law, policy, and compliance. He most recently served as Chief of Staff at the Office of the Citizenship and Immigration Services Ombudsman within the U.S. Department of Homeland Security and previously contributed to bipartisan EB-5 reform efforts as Chief Counsel for the House Judiciary Committee’s immigration subcommittee. His leadership reflects deep expertise in EB-5 policy and stakeholder engagement.
Andrew Diroll-Black – Chief Compliance Officer
Andrew Diroll-Black is the Chief Compliance Officer at American Lending Center, where he oversees regulatory integrity and compliance across ALC’s EB-5 operations. With more than a decade of experience in immigration policy and regulatory oversight, he brings deep expertise in program integrity and compliance leadership.
He previously served in senior roles at U.S. Citizenship and Immigration Services (USCIS) within the Immigrant Investor Program Office (IPO), including as Branch Chief and Acting Division Chief of IPO Division 1 (Compliance), where he directed multidisciplinary teams and helped implement key integrity measures under the EB-5 Reform and Integrity Act of 2022.
Christopher Mason – Chief Communications Officer
Christopher A. Mason is the Chief Communications Officer at ALC, with more than a decade of experience across the public and private sectors. He previously served in senior roles at U.S. Citizenship and Immigration Services (USCIS), including as Chief Economist for the Immigrant Investor Program Office (EB-5), where he oversaw the review of billions of dollars in foreign investment projects and supported regulatory and program integrity initiatives. His background strengthens ALC’s global engagement and leadership in EB-5 communications.
