Filed Before March 15, 2022? DHS Proposes That the Old EB-5 Rules Still Govern You

Most coverage of the Department of Homeland Security’s proposed EB-5 rule, published July 2, 2026 under Docket No. USCIS-2026-0100, focuses on what changes. If you filed your Form I-526 before the Reform and Integrity Act took effect, the more important question is what does not change for you. On that point, the proposal is specific.

DHS proposes to apply the new rule going forward, not backward. Petitions filed before March 15, 2022 would generally continue to be adjudicated under the regulations in place when they were filed, not under the new framework this rulemaking would build. In regulatory text, the proposal tells earlier filers that the rules of their case are the rules they filed under.

This article explains what “the old rules govern you” means in practice. It is informational only, and the rule remains a proposal that can change before it is finalized.

What “the Old Rules” Means

The proposal rebuilds the EB-5 regulations from the ground up. DHS “proposes to remove and reserve 8 CFR 204.6 and create a new Subpart D to part 204 of Title 8 of the CFR.” Section 204.6 is the long-standing regulation that governed the program for decades; rather than stretch it to cover the new statute, DHS is replacing it.

Just as important, DHS does not discard the old text for people who relied on it. The proposal states that “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.” That date is deliberate: it is the version of the regulation before a later rule that a federal court vacated. So for pre-Act petitions, the standard is the settled, pre-modernization version of the rule.

The reason is plain. The new subpart, DHS says, “would provide a clear distinction between the requirements for an EB-5 immigrant visa before and after enactment of the RIA,” so that “all stakeholders can determine the eligibility and filing requirements for all aspects of the program.” The goal is a bright line. For how the petition fits into the process, see our EB-5 explainer.

How Many People This Affects

This is not a hypothetical edge case. DHS reports that “As of May 1, 2025, USCIS has approximately 1,500 pending Form I-526 petitions filed before March 15, 2022.” Those are real investors, many waiting years, and the proposal speaks to their situation.

If your petition is in that group, the proposed changes to eligibility standards, evidence, and program mechanics are generally aimed at petitions filed on or after the Act’s effective date, not at yours. The standard used to measure your petition is the one that existed when you filed it.

Prospective by Design, With Six Exceptions

The reassurance rests on a structural choice. DHS “proposes that this rule be implemented prospectively to petitions and applications filed on or after its effective date, subject to the following exceptions.” Prospective application is the default; the exceptions are listed departures from it, two of them contested.

There are six: where the statute itself directs otherwise; where the rule codifies a post-Act policy DHS already applies; priority date retention for investors who filed before March 15, 2022; cases involving an ongoing public safety or national security threat, or continued fraud; the requirement that all regional centers, including older ones, establish eligibility under the reformed program; and petition amendments filed because an investor’s regional center was terminated or their enterprise or job-creating entity was debarred.

Read together, most of the exceptions are protective or integrity-focused, and none is aimed at rewriting the standard for an ordinary, good-faith petition. Two of them, though, deserve a clear-eyed look: the national-security and fraud authorities would apply to petitions regardless of filing date, and every regional center, including those designated before the RIA, would have to establish eligibility under the reformed program. Both are already contested; commentators have flagged the retroactive reach as a likely comment-letter and litigation focus, and we address the regional center requalification question in our separate analysis of the proposed rule and our prior litigation.

Priority Date Retention Carries Forward

One exception works squarely in the investor’s favor. Exception three preserves priority date retention “With respect to priority date retention for alien investors who filed prior to March 15, 2022.” Your priority date is your place in line, and losing it can mean starting over on a years-long wait.

The proposal describes how the protection works in the scenarios it covers: “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.” The point is that a valuable protection is carried into the new framework rather than stripped out of it. Because how and when a petition is filed still matters, our guide to the I-526E petition is a useful companion.

What This Means Practically, and Calmly

If you filed before March 15, 2022, the summary is short. The proposed rule is not designed to change the rules of your case midstream, so it is a reason to stay informed, not to react. Nothing in the proposal as written requires you to refile, and you should be skeptical of anyone who says a pending petition suddenly needs restructuring to survive it. But confirm your own posture with counsel, because the applicability text is one of the provisions commentators expect to be refined in comments. The sensible steps are ordinary: keep your records current, stay in contact with your immigration counsel about your specific case, and follow the rulemaking. Newer filers face a separate timeline, including the September 30, 2026 grandfathering deadline, a deadline pre-Act filers have already satisfied, since their petitions are on file. One thing the new framework does not give earlier filers: the post-2022 reserved visa set-asides are available only to petitions filed on or after March 15, 2022.

Proposed Rule, Firm Framing

This is a proposal, not a final rule. Comments are due on or before August 31, 2026, under DHS Docket No. USCIS-2026-0100, and provisions can change before anything is finalized. The prospective-application structure and the pre-March 15, 2022 treatment are the current text, consistent with how DHS has described its intent, but not yet fixed law.

Investors should consult their own immigration and securities counsel about their individual petitions and timelines rather than acting on general commentary. Behring is reviewing the proposed rule and will publish further analysis as the comment period progresses.

Related analysis in this NPRM series: the TEA expiry trap.

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.