The Proposed EB-5 Rule: What it Means for Infrastructure Projects

On July 2, 2026, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (“NPRM,” or “proposed rule”) titled, “EB-5 Reform and Integrity Act of 2022; Ensuring the Integrity of the EB-5 Program; Automatic Revocation of Petitions for Immigrant Classification.”

This is the overarching EB-5 proposed rule that is meant to implement the EB-5 Reform and Integrity Act of 2022 (“RIA”). The public has until August 31, 2026, to provide comments on the text of the proposed rule.

Among the many definitions and provisions of the proposed rule is the much-anticipated agency interpretation of “infrastructure projects.”

Key takeaways for EB-5 infrastructure projects:

• The RIA provides a new definition for infrastructure and allocates 2% of EB-5 visas for investors in these projects. Infrastructure projects are also eligible for the lower investment level, currently $800,000.
• By simply codifying the RIA definition, the proposed rule may not be sufficiently detailed for developers, regional centers, and investors to understand and feel comfortable with whether an investment or development will qualify as an infrastructure project.
• Additionally, the RIA requirement that a government entity serve as the job-creating entity (JCE) is not reflective of how many infrastructure projects are funded and managed; a final regulation that includes qualified private and nonprofit entities acting on behalf of or in partnership with government is critical to realizing the RIA’s goals of supporting infrastructure projects.
• DHS/USCIS welcomes stakeholder feedback on the definition of an infrastructure project as well as the types of documents that entities would likely be able to provide to establish that their project meets the definition, so it will be important to provide comments before the August 31, 2026 deadline.

Background on EB-5 Infrastructure

The RIA created a new category of set-aside EB-5 visas for investors in “infrastructure projects.” The statute provides that 2% of available EB-5 visas would be reserved for investors in infrastructure projects who would have a reduced minimum investment amount, currently $800,000.

This means that approximately 200 visas each year will be set aside for investors and their families investing in these projects.

One of the key areas EB-5 stakeholders have been waiting for is additional guidance on what qualifies as an infrastructure project—both for the purposes of putting together future projects and so that USCIS will move forward with long pending petitions for investors in infrastructure projects that regional centers have already funded.

The RIA, amending the Immigration and Nationality Act sec. 203(b)(5)(D)(iv), defines infrastructure project:

The term ‘infrastructure project’ means a capital investment project in a filed or approved business plan, which is administered by a governmental entity (such as a Federal, State, or local agency or authority) that is the job-creating entity contracting with a regional center or new commercial enterprise to receive capital investment under the regional center program described in subparagraph (E) from alien investors or the new commercial enterprise as financing for maintaining, improving, or constructing a public works project.

The RIA also states that the “Secretary of Homeland Security shall determine whether a specific capital investment project meets the definition of ‘infrastructure project’…”

Why is infrastructure important in EB-5?

EB-5 investment in infrastructure projects represents one of the greatest opportunities for the program to address critical financing needs across the country.

Many states and municipalities are dealing with challenges associated with aging infrastructure and growing or changing needs due to population growth, new technologies—such as electric vehicles, renewable energy, broadband internet, and smart-grid systems—that require infrastructure upgrades, climate resilience and disaster preparedness, and public health and safety.

As Jayro Sandoval, Economic Development Manager at Sunstone Cities, explains,

“communities across the country face significant infrastructure investment needs that cannot be met through public funding alone. Private capital and public-private partnerships are essential to accelerating projects that strengthen local economies.”

EB-5 investment can play an important role in filling the current funding gaps in this space.

At the same time, EB-5 investors are eager for these types of opportunities. Many EB-5 investors are interested in projects that have an impact on the communities where they live and believe infrastructure projects backed by public-private partnerships are higher quality investments.

Despite the demand, EB-5 regional centers and developers lack the clarity needed to confidently move forward with infrastructure projects, particularly given the resources required to put together and manage this type of development. The definition in the RIA is general, so additional guidance from the agency is critical.

What is included in the new EB-5 infrastructure definition?

First, the NPRM proposes to expand the scope of infrastructure projects to include tribal governments in addition to federal, state, and local government sponsors. This is a logical expansion to the definition and broadens the potential areas where EB-5 investment might create an impact for communities.

Next, the agency explains that only DHS can determine what would qualify as an infrastructure project, and the proposed rule delegates that authority to USCIS.

In terms of what would constitute an infrastructure project, the proposed rule explains:

DHS generally expects qualifying infrastructure projects to involve the maintenance, improvement, or construction of any physical assets that are designed to provide or support services to the general public through projects in sectors such as those generally identified by relevant statutes, regulations, and executive orders.

The NPRM goes on to list the following 10 sectors as possibilities:

• Aviation;
• Broadband internet;
• Drinking water infrastructure;
• Electricity transmission;
• Energy production and generation;
• Pipelines;
• Ports (including navigational channels);
• Stormwater and sewer infrastructure;
• Surface transportation (including roadways, bridges, railroads, and transit); and
• Water resources projects.

These are broad categories, and this does not appear to be an exhaustive list. A list of subcategories and examples would help identify the types of projects that would meet the agency’s standards under the RIA.

This is especially important because if only DHS—and by extension, USCIS—can determine what projects would qualify as infrastructure projects, then a clear set of guidelines from DHS would help developers and EB-5 regional centers more effectively identify projects and pursue project applications more efficiently.

Aviation Example

Aviation is a broadly defined sector ripe for investment across the country.

As airports are almost entirely owned by state or local governments, it seems that many airport infrastructure projects should be eligible to receive EB-5 funding. However, additional guidance would be helpful regarding the scope of eligible projects.

While projects such as runway or terminal expansions would likely qualify, what about facilities that support airport operations more indirectly such as cargo terminals, rental car centers, or intermodal transportation facilities?

Recognizing that it may not be possible for DHS/USCIS to provide an exhaustive list of options in each category, it may be more practical to identify the factors the agency will use to determine whether a project qualifies.

In other words, it would be helpful to clarify that eligibility depends not only on government ownership and sponsorship of the project, but also on the specific function of the asset and its nexus to providing services to the public.

How will the proposed infrastructure definition impact EB-5 regional centers and investors?

Without greater clarity, EB-5 regional centers and project developers face significant uncertainty in structuring infrastructure offerings, increasing the risk that project applications or investor petitions could be denied or delayed, forcing investors to refile and creating unnecessary delays and costs.

Although the broad project categories identified by DHS are a starting point for expanding EB-5 investment into infrastructure, additional guidance is necessary for regional centers and developers to be able to structure projects, prepare offering documents, and market qualifying investment opportunities.

Is the EB-5 infrastructure contractual framework too limiting?

The requirement that a governmental entity serve as the job-creating entity contracting directly with a regional center or new commercial enterprise is unnecessarily restrictive and does not reflect how many infrastructure projects are completed today.

While some government agencies finance and procure public works projects directly, many infrastructure projects rely on public-private partnerships or other development structures.

In these arrangements, a government agency contracts with a private developer that raises project capital and delivers the public works project, while the government agency agrees to purchase, lease, or otherwise guarantee payment for the completed project.

As a result, it may make more sense for a developer, and not a government agency, to contract with a regional center or new commercial enterprise for EB-5 investment.

The current framework and proposed definition could have unintended consequences—excluding these common structures from EB-5 infrastructure investments. In practice, it could also limit participation to EB-5 regional centers that are also developers with the ability to contract directly with government agencies in these types of situations.

In the EB-5 community, only a handful of currently designated regional centers are also developers.

The final regulation could allow governments to delegate their contracting requirements to their partner developers for the purpose of entering into agreements with regional centers. This would track with more common practices in the public-private development space and provide more opportunities for infrastructure projects to go forward with EB-5 investment.

Commenting on the Proposed EB-5 Rule

The rule has a 60-day comment period, and in the NPRM, DHS explicitly called for comments on this and other provisions. DHS’s invitation for stakeholder feedback is a positive indication.

The proposed rule states that the agency “welcomes public comment on the definition of an infrastructure project as well as the types of documents that entities would likely be able to provide to establish that their project meets the definition of an infrastructure project.”

This presents an important opportunity for stakeholders, developers, investors, and industry organizations to help shape a regulatory framework that is both practical and predictable.

At the time of publication there is still time to provide valuable feedback here: LINK.

Final Thoughts on EB-5 Infrastructure

By proposing a definition of an infrastructure project and inviting public comment, DHS has acknowledged both the promise of this investment category and the need for greater regulatory clarity.

Unfortunately, the NPRM does not provide the clarity needed in many cases to determine whether a project would qualify as an infrastructure project.

If the final rule strikes the right balance between clarity, flexibility, and national security, it has the potential to unlock additional EB-5 capital for critical infrastructure projects across the United States.