The Proposed EB-5 Rule Is Out, and the Grandfathering Deadline Is Not Moving: 90 Days Left

On July 2, 2026, the Department of Homeland Security published its long-awaited proposed rule implementing the EB-5 Reform and Integrity Act of 2022. At 358 pages, it addresses nearly every corner of the program: investment amounts, targeted employment areas, regional center oversight, audits, and more.

Here is what it does not address. The word “grandfather” does not appear anywhere in the document. The statutory protection that shields regional center investors who file on or before September 30, 2026 is mentioned exactly once, in a list of legal authorities, with no proposal attached to it. The deadline stands. As of publication day, it is 90 days away.

What the Grandfathering Protection Actually Is

Congress wrote the protection into the statute itself. Under INA section 203(b)(5)(S), titled “Protection from expired legislation,” if the Regional Center Program’s authorization expires, the Secretary of Homeland Security “shall continue processing petitions under sections 1154(a)(1)(H) and 1186b of this title based on an investment in a new commercial enterprise associated with a regional center that were filed on or before September 30, 2026.” The statute goes further: USCIS “may not deny a petition described in clause (i) based on the expiration of such legislation” and “may not suspend or terminate the allocation of visas to the beneficiaries of approved petitions described in clause (i).”

In plain terms: if you file by September 30, 2026, your petition survives even if Congress lets the Regional Center Program lapse. Your case keeps processing, it cannot be denied because the program expired, and visas keep flowing to approved petitions.

The program itself is currently authorized through a later date. As the proposed rule notes, the Reform and Integrity Act “authorized the issuance of immigrant visas to investors participating in the program through September 30, 2027.” That gap is the whole point. Investors who file after September 30, 2026 can still file while the program remains authorized, but they file without the statutory safety net. If Congress does not reauthorize the program before the 2027 sunset, those later petitions have no equivalent protection written into law.

What the Proposed Rule Says About It: Almost Nothing

The proposed rule’s legal authority section acknowledges the provision exists, citing “future protections from expired legislation at section 203(b)(5)(S) of the INA, 8 U.S.C. 1153(b)(5)(S).” That single reference is the entire treatment. There is no proposed regulation implementing it, no discussion of extending it, and no request for comment on it.

Some in the industry hoped this rulemaking would address the approaching deadline. It was never realistic to expect that. The September 30, 2026 date is set by statute, and an agency cannot amend a statute by regulation. DHS could not move this date even if it wanted to. Only Congress can.

The Calendar Does the Rest of the Math

Consider the timeline. Public comments on the proposed rule are due 60 days after publication, which lands at the end of August 2026, under DHS Docket No. USCIS-2026-0100. DHS must then review comments and prepare a final rule, a process that routinely takes many months. The grandfathering deadline arrives on September 30, 2026, roughly 30 days after the comment window closes.

The rulemaking cannot rescue the deadline, and the deadline will pass before the rulemaking finishes. Any extension of the grandfathering protection therefore has to come from somewhere else: an act of Congress, whether through reauthorization of the Regional Center Program, a standalone extension, or an appropriations rider. Industry groups have been urging Congress to act. Nothing enacted to date extends the date, and no one should file, or delay filing, based on a prediction about what Congress may do.

What Filing by September 30 Actually Requires

Ninety days is workable, but only with honest sequencing. An EB-5 filing is not a single event. Investors typically need to engage an immigration attorney, complete source of funds documentation, select a project, execute subscription documents, move capital, and file the I-526E petition. Source of funds preparation is usually the longest step, and it is the one that cannot be compressed at the end.

Investors who want the protection of the statutory deadline should work backward from September 30 and start the longest steps now. Filing by the deadline does not guarantee approval, and every petition still must meet all eligibility requirements. What the deadline controls is whether the statutory protection from program expiration applies to your case at all.

The Second Date on the Calendar

The grandfathering deadline is not the only date approaching. The same proposed rule codifies the statute’s automatic adjustment of minimum investment amounts: “This amount will adjust automatically on January 1, 2027, and every 5 years thereafter, based on the cumulative annual percentage change in the unadjusted All Items Consumer Price Index for All Urban Consumers (CPI-U)”. The current $800,000 level applies to investments in a targeted employment area or infrastructure project; DHS’s own data shows that from fiscal year 2016 through 2021 “there were 38,250 investments made under regional centers of which 38,197, or 99.8 percent, were made at the reduced amount.” The rule does not name a post-adjustment figure, and the number will depend on cumulative inflation, but the direction is up.

Two dates, one conclusion: for investors already planning an EB-5 investment, the second half of 2026 rewards early movers and punishes delay.

A Proposed Rule, an Open Comment Period

Everything in the proposed rule remains subject to the comment process, and provisions can change before the final rule. The statutory grandfathering date is different: it is already law and is not part of what DHS can change. Behring is preparing formal comments on several provisions of the proposed rule and will publish its analysis as the comment period progresses.

Investors should consult their own immigration and securities counsel about their individual timelines. For background, see our EB-5 explainer, our guide to the I-526E petition, and our overview of the EB-5 process timeline.

Important Disclosures

This article is provided for general educational purposes only and does not constitute legal, tax, investment, or immigration advice. It reflects a proposed rule and a developing area of law that may change. Consult your own immigration and securities counsel about your individual circumstances.