EB-5 Infrastructure Projects: Four Questions the Proposed Rule Leaves Open

Congress reserved two percent of the annual EB-5 visa supply, roughly 198 visas a year, for investment in qualifying infrastructure projects. The proposed rule that DHS published on July 2, 2026 under Docket No. USCIS-2026-0100 restates that reservation and carries the statutory definition of an infrastructure project into the regulations.

What the proposed rule does not do is answer the questions a project sponsor has to answer before the category can be used. We covered the set-aside architecture, meaning the percentages, the carryover, and the fact that a standalone investor cannot use an infrastructure-reserved visa at all, in our article on reserved visa math. That piece stopped short of saying what actually qualifies. This article focuses on four open items, now that DHS has expressly asked the public to weigh in.

What the Proposed Rule Says

The proposed definition at 8 CFR 204.401 provides that an infrastructure project means a capital investment project in a designated regional center’s filed or approved project application, “administered by a governmental entity (such as a Federal, State, local, or tribal agency or authority) that is the job-creating entity contracting with a regional center or new commercial enterprise to receive capital investment,” as financing “for maintaining, improving, or constructing a public works project.”

Proposed 8 CFR 204.403 adds that USCIS makes the infrastructure determination when it adjudicates a regional center’s project application, which is close to the statutory language. Two terms carry the weight of the entire category, “administered by” and “public works project,” and the proposed subpart defines neither so industry comments are especially important at this time.

DHS writes that “While any sector whose utility to the public can be established may qualify as an infrastructure project,” and then lists examples: “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.”

This is helpful as a preamble but it is not what gets printed in the permanent Code of Federal Regulations. A sponsor reading only the regulation sees a considerably narrower category than DHS appears to intend. That gap is the subject of the four questions below.

Question One: Does “Administered By” Mean “Owned By”?

The statute requires that a project be administered by a governmental entity. Congress did not write “owned by.”

The distinction matters because the same definition also requires the governmental entity to be the job-creating entity contracting to receive the capital investment. If read strictly, as requiring public ownership of the development entity, the category would have very few eligible participants. Federal agencies generally may not establish or acquire a corporation without statutory authorization, and many state constitutions similarly restrict public entities from holding interests in private companies.

Governments participate in building things in other ways. Ground leases with development agreements, build-to-suit leases, lease-purchase structures, and availability-payment concessions are all ordinary. None of them involves owning the private development entity, and all of them can involve extensive governmental control over what gets built.  EB-5 inflows into these job creation activities should reflect the intentions of Congress with language that makes it simple and consistent with real world examples.

Federal law already recognizes that public character does not depend on who holds title. Under the Davis-Bacon Act’s implementing regulations at 29 CFR 5.2, a public building or public work includes a building or work whose construction “is carried on directly by authority of or with funds of a Federal agency to serve the interest of the general public regardless of whether title thereof is in a Federal agency.”

A workable reading of “administers” would look at what the governmental entity actually does: furnishing or approving design criteria and specifications, holding approval rights over design, budget, and schedule, enforcing milestone obligations, conducting inspection and performance oversight, and granting final acceptance.  The regulatory authority that every jurisdiction exercises over all private development by operation of law, such as zoning, permitting, code enforcement, and inspection, should not by itself count as administration. Otherwise every permitted building in the country is administered by a government so the goal of public comment is to encourage DHS to publish a practical balance point.

Question Two: What Is a “Public Works Project”?

The term appears in the statute and in the proposed definition but the proposed subpart defines it nowhere.

What makes that notable is that DHS’s own cited sources describe the concept more broadly than DHS’s example list does, highlighting the need for clear public comments to assist with practical implementation.

In footnote 76, DHS points to the Infrastructure Investment and Jobs Act as evidence of how Congress understands infrastructure. Section 70912(5) of that Act defines the term to include roads, highways and bridges, public transportation, dams, ports and harbors, railroads and intermodal facilities, airports, drinking water and wastewater systems, electrical transmission, utilities, broadband, “and buildings and real property.”

DHS quotes the provision in the footnote. The example list in the body of the preamble tracks it closely, item for item, and then stops one item short. Buildings and real property, the last category Congress named, does not appear in the list, but this does not appear to be a purposeful omission.

Footnote 79 points the same direction. DHS cites the sixteen critical infrastructure sectors identified by the Cybersecurity and Infrastructure Security Agency, and writes that “As many of the projects that would qualify as an infrastructure project fall within these 16 critical sectors,” a disclosure restriction is warranted. Those sectors include the Government Facilities Sector, which covers general use office buildings owned or leased by federal, state, local, and tribal governments, along with the Emergency Services Sector and the Healthcare and Public Health Sector.

DHS relies on those sectors to support a real regulatory consequence. Proposed 8 CFR 204.434 would restrict what project specifics may be disclosed to investors, precisely because qualifying infrastructure projects fall within them. The same sectors are absent from the list of examples of what qualifies.

We are not suggesting DHS intends to exclude public buildings. The likelier reading is that the example list was drawn from transportation and utility sources and was never meant to be exhaustive, which is what DHS’s own “any sector whose utility to the public can be established” sentence says. The point is narrower. That sentence, and the breadth behind it, belongs in the regulatory text, which would remove any question about whether the enumeration is illustrative rather than exclusive.

Question Three: Does the Government Have to Take the Whole Building?

Nothing in the statute requires a governmental entity to hold title to the finished asset, to occupy all of it, or to account for a majority of the project’s cost.

This matters because of how governments actually take space. A city, county, state, or federal agency leases what it needs. Partial floor and partial building tenancies are ordinary at every level of government, often for reasons of public financing rather than preference.

A percentage threshold, whether measured by square footage, by cost, or by any similar metric, would be arbitrary, and it would bite hardest in the markets where public facilities are scarcest, precisely where shared building systems and scale cost savings make mixed public and private occupancy most efficient.  A project could fail an arbitrary, hard line numerical test even where the governmental entity’s requirements drove the majority of the structural, seismic, life safety, accessibility, security, or building systems scope of the entire building.

Here again, federal law has already worked through the problem. The Davis-Bacon regulations provide that work on a portion of a building “may still be considered a public building or work, even where the entire building or work is not owned, leased by, or to be used by a Federal agency,” so long as that work is carried on by authority of or with funds of a federal agency to serve the interest of the general public. Partial occupancy does not defeat public character in that regime, and there is no evident reason it should defeat it here, where the same public purpose is being served and the only difference is the source of the financing.

The alternative to a threshold is a nexus test. A project qualifies where the public component is a substantial purpose of the capital investment project and the capital finances scope reasonably necessary to deliver it, including building wide work required by the governmental entity’s own specifications. A scope and cost allocation in the business plan, carried through the economic impact analysis, documents that nexus using materials sponsors already prepare.  This gives IPO the chance to investigate the nexus on a case by case posture without defending whether a bright line rule was credibly engineered.

Question Four: What Evidence, and When?

Proposed 8 CFR 204.421(c)(3) requires, for an infrastructure project, “In the case of an infrastructure project, evidence of a contract with a Federal, State, local, or tribal agency or authority to provide EB-5 investment capital to a public works project.” That is the whole evidentiary requirement and it does make sense at a high level but DHS would know that Government contracting does not always run on that sequence. Public entities frequently cannot execute a definitive lease or development agreement until design is substantially advanced and project financing is committed. As drafted, the provision can present an ordering problem that no sponsor can solve alone, with the practical effect of narrowing the category to arrangements that are already fully papered.  Recognition of public works financing is suggested in order to meet the goals of Congress and assist these important projects by allowing for marketable EB-5 placements.

A workable fix is to accept, at the project application stage, evidence that establishes the governmental entity’s administrative rights and its occupancy or payment obligations in whatever form the parties’ contracting posture has actually produced. That would include a binding memorandum of understanding, a letter of intent, an award or selection notice, or documentation of authorizing action such as a council or board resolution, budget authorization, or appropriation.  Preponderance of evidence that the project will satisfy the infrastructure requirements, as opposed to the actual contract, would be consistent with adjudication posture at IPO.

Where the Proposed Definition Departs From the Statute

Separately from the four questions, the proposed definition does not track the statutory text, and the preamble does not discuss the differences, again, highlighting the importance of public comments.

Congress defined the term including the phrases “a capital investment project in a filed or approved business plan,” administered by a governmental entity “(such as a Federal, State, or local agency or authority).” The proposed rule defines it as a capital investment project in “a designated regional center’s filed or approved project application,” administered by a governmental entity “(such as a Federal, State, local, or tribal agency or authority).”

DHS should conform the definition to the statutory language or state its reasoning to include “designated” and switch from “business plan” to “project application.” That is the kind of question the comment process exists to surface.

Also, the statutory list of governmental entities reads Federal, State, or local. The proposal adds tribal agencies and authorities. Because the list is introduced by “such as,” it was always illustrative rather than exhaustive, so the addition breaks no new ground legally, but making tribal entities explicit removes a question a sponsor would otherwise have to raise. It should survive into the final rule.

Why This Is Worth Commenting On

DHS asked. In the infrastructure discussion, the agency states that “DHS 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.”

When an agency invites comment on a question, it must address significant responses in the final rule, and a change it makes in response is easier to sustain as a logical outgrowth of what it proposed and allows for consideration as a matter of public record.

Two percent of the annual supply is a small reservation, but it is a fixed one and has a goal.  It should have a practical and marketable pathway.  If the definition is read narrowly enough that few projects can satisfy it, the category underperforms against a set-aside Congress created to draw investment toward public infrastructure.

Comments are due on or before August 31, 2026, under DHS Docket No. USCIS-2026-0100. Anyone can file one.

Related analysis in this series on the proposed rule: reserved visa math, the September 30 grandfathering deadline, and how Behring’s litigation shaped the proposed rule.

Important Disclosures

This article is provided for general educational purposes only and does not constitute legal, tax, investment, or immigration advice. It describes a proposed rule that is not final and that may change before it is finalized, if it is finalized at all. Nothing here is a representation that any particular project qualifies or would qualify as an infrastructure project. That determination rests with USCIS and is made when a regional center’s project application is adjudicated. Nothing here promises or implies any investment return or immigration outcome. Consult your own immigration and securities counsel about your individual circumstances.