If you filed your Form I-526 before March 15, 2022, the newly proposed EB-5 rule leaves your case where it was: your petition would generally still be decided under the rules in place when you filed, not under the new framework. You do not need to refile, and nothing about your investment needs restructuring because of this proposal. It is written to change the program going forward, not to change your case midstream. A caution before anything else. This is a proposed rule, published July 2, 2026 under Docket No. USCIS-2026-0100, and it can change before it becomes final. Everything below is the current text, explained in plain language, with DHS’s own words quoted under each point so you or your lawyer can check every claim.
What DHS Proposed
DHS is rebuilding the EB-5 regulations from scratch for cases filed after the 2022 reform law. For cases filed before March 15, 2022, the day that law took effect, DHS proposes to keep using the old regulation, 8 CFR 204.6, in the version that existed on November 20, 2019. That date was not picked at random. It is the version of the rule from before the 2019 regulation that a federal court threw out in Behring’s own lawsuit, Behring Regional Center LLC v. Wolf, and DHS’s proposal cites that vacatur as the reason the older text controls. Put plainly, the old rules protecting your filing exist because Behring won that case. In DHS’s words: “8 CFR 204.6, as it existed on November 20, 2019, (before the effective date of the EB-5 Modernization Final Rule) would generally apply to adjudications for petitions filed before March 15, 2022.”
About 1,500 Investors Are in the Same Position
DHS counts roughly 1,500 pending Form I-526 petitions filed before March 15, 2022, using its figure as of May 1, 2025. If yours is one of them, the new eligibility standards, evidence requirements, and program mechanics in this proposal are aimed at later filings, not at yours.
Six Exceptions, and the Two That Matter
The proposal applies going forward “subject to the following exceptions,” and there are six of them. Four are technical or protective: where the statute itself directs otherwise, where DHS is writing down a policy it already follows, priority date protection for earlier filers (more on that below), and petition amendments needed when a regional center is terminated or an enterprise debarred. The other two can reach earlier cases, so they deserve your attention. First, the national security and fraud authorities apply to every petition no matter when it was filed. They run on conduct, not filing date. If a case involves an ongoing threat or continued fraud, filing early is no shield, and it was never meant to be. An ordinary, good-faith petition is not what these authorities are for. Second, every regional center, including those designated long before 2022, must establish its eligibility under the reformed program. Your petition’s standard does not change, but the regional center your investment sits inside has homework, and its post-2022 designation status is a fair question to ask it directly. Behring’s regional center made that transition early. Its pre-2022 designation, like that of every regional center in good standing before the Act, was preserved under the settlement in Behring Regional Center LLC v. Mayorkas, the 2022 case Behring brought after USCIS announced that every existing regional center was deauthorized, and whose terms USCIS’s proposed rule now applies. As the court’s June 2022 injunction order itself records, Behring filed its Form I-956 under the reformed program within weeks of the new process opening, and it has operated under the RIA framework since. Both exceptions are contested. Commentators expect them to draw comment letters and possibly litigation, and we cover the requalification fight in our analysis of the proposed rule and Behring’s litigation.
Your Priority Date Is Protected
Your priority date is your place in the visa line, and losing it can cost years. The proposal carries that protection forward for investors who filed before March 15, 2022: file a proper amendment when one is needed, stay eligible, and you keep your original date. As DHS puts it: “If the investor properly files an amendment and establishes his or her continued eligibility, then the investor would retain the priority date of his or her earlier filed petition.” For how the filings fit together, see our guide to the I-526E petition.
What You Should Actually Do
Three things, none of them dramatic. Keep your records current. Stay in touch with your immigration lawyer about your specific case. And follow the rulemaking, because comments are due August 31, 2026, and the applicability language is one of the provisions commentators expect to be refined. If the final rule narrows it, the assurance described here narrows with it. Be skeptical of anyone telling you a pending petition suddenly needs restructuring to survive this proposal. Nothing in the text as written says that. For context, two dates belong on your calendar. The September 30, 2026 grandfathering deadline is one you satisfied the day you filed. And the post-2022 reserved visa set-asides apply only to petitions filed on or after March 15, 2022, so that particular benefit is one earlier filers do not get.
This Is Still a Proposal
Provisions can change before anything is finalized, so confirm your own posture with your immigration and securities counsel rather than acting on general commentary. This article is information, not advice. Behring is reviewing the full proposed rule and will publish further analysis as the comment period progresses. Related in this series: the TEA expiry trap.
Frequently Asked Questions
I filed my I-526 before March 15, 2022. Which rules apply to my petition?
Generally, the older regulation: 8 CFR 204.6 as it existed on November 20, 2019. That is DHS’s own proposal for petitions filed before March 15, 2022.
Does the new rule apply retroactively to my pending petition?
By default, no. It applies to filings on or after its effective date, with six listed exceptions. Two of those, the security and fraud authorities and regional center requalification, can touch earlier cases. The rest are technical or protective.
Do I need to do anything right now?
No refiling and no restructuring. The practical work is staying current: organized records, an open line to your own immigration counsel, and an eye on the comment period, which closes August 31, 2026.
Important Disclosures
This article is provided for general educational purposes only and does not constitute legal, tax, investment, or immigration advice. Consult your own immigration and securities counsel about your individual circumstances.
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