USCIS Formalizes EB-5 Processing Order — But the Real Question Remains Unanswered

On February 25, 2026, USCIS published a new inventory management approach for EB-5 petitions (I-526E) — formalizing how petitions are prioritized and assigned for processing across Rural, High Unemployment Area (HUA), Infrastructure, and Unreserved categories. It is the first time since the EB-5 Reform and Integrity Act (RIA) of 2022 that the agency has published a processing framework. But what the announcement does not address may matter more than what it says: there is still no published guidance on how approved petitions translate into actual visa allocations — the step that determines whether an investor receives a green card.

What USCIS Actually Announced

The USCIS EB-5 Q&A page update formalizes three pillars of petition processing. First, the agency will not assign an I-526E petition for processing until the associated I-956F (Immigrant Investor Regional Center Form) has been decided. This creates a hard gate: no I-956F approval means your petition sits in a holding pattern regardless of filing date.  This was conventionally accepted as the status quo prior to this announcement.

Second, rural petitions receive FIFO (first-in, first-out) priority based on anticipated fiscal year rural visa usage. This formalizes what the industry has experienced since 2022, that the RIA compels IPO to process petitions with priority, along with a directive to USCIS to figure out how to leverage resources to meet their stated processing time goals.

Third — and this is where the ambiguity lives — non-rural petitions (HUA, Infrastructure, Unreserved) are assigned for processing “after the Form I-526E rural queue is empty or when we determine we have made decisions on enough petitions from that queue.”  Since there are already more than enough approvals and family size multipliers than the number of rural visas available, why publish this guidance now?  Determining whether USCIS has adjudicated “enough” petitions from the rural queue should not be a future, open-ended contemplation — mathematically, that threshold should have already been reached, if we assume the only visa available to a set-aside investor is a set-aside visa. Without saying it openly, they could be leaving room in the calculation for setaside investors to leverage unreserved visas if available.

Source: USCIS EB-5 Q&A Page, updated February 25, 2026.

What They Didn’t Say — The Visa Allocation Gap

The USCIS announcement is about petition processing. It formalizes how petitions enter adjudication queues, subject to visa availability. What it does NOT address is visa allocation and that post-RIA, I-526E approvals have multiple codes for use.  This is the mechanism that actually determines whether a petitioner receives a green card, is out of the control of IPO, but the ability to communicate how to account for this exists across the agencies involved.

This distinction is critical. Petition adjudication (USCIS IPO’s responsibility) and visa allocation (Department of State / National Visa Center responsibility) are managed by independent agencies operating under different timelines. A petition approval means USCIS has determined investment legitimacy. A visa allocation means the Department of State has determined a visa number is available in your category.

The USCIS announcement says nothing about:

• How visas actually get allocated between set-aside and Unreserved categories, though the approval notice itself advises investors about the process.
• Whether USCIS will choose to give set-aside investors an expiring Unreserved visa or the visa of the set-aside category (this is already occurring in many cases, and without investor decision making).
• How USCIS and the NVC coordinate to match petition approvals with visa supply knowing that Unreserved visa allocation is the priority.
• What happens to the adjudication queue when rural demand exceeds rural visa availability (which it already has).  Are hypothetical unreserved visas added to the forecast on a per-country basis?

This is the real bottleneck. Since the RIA passed in 2022, it took USCIS over three years to formalize petition processing order. But there is still no formalized shared understanding between USCIS and the NVC on visa allocation. That gap in guidance leaves investors navigating critical decisions with incomplete information – and the 2026 grandfathering deadline makes clarity more and more urgent as it approaches.

Here’s the arc that explains why this announcement, while procedurally important, raises important questions for investors:

First, the RIA demanded petition priority for rural investors — a concept that was reasonable in 2022. But now, in 2026, we find ourselves looking at years of implementation challenges against that promise. According to Behring’s analysis of FOIA data, only approximately 125 rural investors had received green cards despite “priority processing” of I-526E petitions — a metric that proves the petition-to-visa conversion gap we’ve been tracking publicly for years now. Greg Sheehan, who joined Behring Regional Center after years of experience in USCIS immigration services and at IPO specifically, watches these policy developments carefully and has been instrumental in crafting Behring’s FOIA-based insights and carefully selecting the data that first revealed this disconnect.  While the number of rural green cards is expected to increase over time, the Visa Bulletin still has not published dates in Chart A or Chart B, reflecting the years of underutilization in the EB-5 setaside categories.  Perhaps these dates will be the lever that IPO uses to determine visa availability.

Second, we now face a looming grandfathering deadline of September 30, 2026 — less than seven months away — with still no collaborative voice from the Department of State and USCIS to help investors understand what they are getting into and how to interpret the critical factors.  This void — the absence of official, coordinated guidance — is where investors and operators would like to rely on the integrity of the immigration product. Instead, they find themselves choosing from unofficial data sources with their own biases and agendas.

While nobody can reasonably expect IPO to forecast retrogression and green card processing that falls outside their domain, it would be informative if they disclosed how they make internal projections — and again, worth restating, specifically whether the dual use of Unreserved approval codes factors into their math.  If USCIS is using that dual classification to inform processing volume decisions, clarity on this point would benefit investors. If they are not — if processing volume is being calibrated solely against set-aside visa supply without accounting for Unreserved overflow — then the new inventory management approach may be building in unintended processing delays from day one.

There is more than a human cost to this gap in public guidance. Rural investors were told their investments meant priority because of priority petition processing, but were not told that there would be visa loss and a separate green card process without prioritization of rural investments.  The new processing announcement still doesn’t close or even address that gap.  Job creating families and operators are making critical investment decisions with less than seven months until a deadline — and the information needed to make those decisions confidently has not yet been published.  Regional Center operators and their partners need clarity to plan responsibly.  A rural project facing extended processing uncertainty despite prioritization in the text may struggle to attract the traditional capital the RIA was designed to encourage.

Investors and operators would benefit greatly from transparent data and policy decisions.  Several years have passed since the RIA, making it difficult for job creators to have confidence in the program’s stated goals.

The “Or” Clause — Winners and Losers

Non-rural petitions are assigned for processing “after the Form I-526E rural queue is empty or when we determine we have made decisions on enough petitions from that queue.” That single word — “or” — determines processing timelines for thousands of investors.

Interpretation matters. If “enough” means enough petitions adjudicated to fill one fiscal year’s rural visa supply, then HUA and Infrastructure processing could accelerate within months. FOIA data shows approximately an estimated 4,000+ qualified rural applicants may already exist based on publicly available FOIA data in the pipeline. This is the optimistic read.

If “enough” means empty the entire rural queue, then HUA and Infrastructure investors could wait years. Over 6,400 rural petitions were filed between April 2022 and July 2025 alone, with new filings incoming daily. This is the pessimistic read.

Infrastructure may benefit most in the near term. It is the smallest category, receiving approximately 200 visas per year in normal supply. Infrastructure projects are most likely to face underutilized visa allocation unless USCIS approves recently-filed I-526Es rapidly. Behring’s CIVIC project received I-956F approval with an infrastructure designation, which means qualifying petitions can now be assigned for processing immediately under the new rules.

HUA faces the most uncertainty. According to FOIA records, publicly available data suggests fewer than 600 HUA petitions have been processed in the past three years. The new framework could either unlock processing (if USCIS interprets the “or” generously) or extend the current processing delays (if they prioritize rural exhaustion). For HUA investors, this announcement creates a critical unknown.

In all of these situations, the variable of Unreserved visas is a positive when observed in practice and they are being used for setaside investors which is very encouraging, but the program might hit the grandfathering wall before the agencies publish the underlying allocation methodology.

What This Means for Mandamus Actions

Mandamus suits challenging USCIS processing delays have been a strategic tool for investors facing adjudication backlogs. The USCIS announcement may change the legal calculus. The agency can now point to a documented, published rationale for processing order, instead of the processing times established by Congress.

A practical effect of this announcement is that USCIS now has a published framework, even if on a website, as a potentially new mandamus defense.
This doesn’t mean mandamus is dead — it would mean the legal landscape shifts — investors should consult their immigration attorney about available remedies. Investors challenging processing delays now face USCIS potentially saying “we have a published rule of reason, which may take precedence over the processing timelines established by Congress that have proven difficult to achieve in practice.”  The burden could shift to a new landscape as a result of this guidance.

See how mandamus has worked for other EB-5 investors as context on what has succeeded in the past.

The I-956F Gate — Why Project and Regional Center Selection Matters More Than Ever

The announcement formalizes what Behring has been advising for years: your I-526E petition will not enter the processing queue until the associated I-956F is decided.  There is an understandable preference for I-956F approvals but a pending application can still be selected and if concurrent processing is available, will still unlock the benefits of an EAD and Advance Parole document.

This is precisely why Behring emphasizes project due diligence. Our CIVIC project has received I-526E approvals with infrastructure designation. Our RISE project has received I-526E approvals as well, backed by I-956F approval.

When you navigate the EB-5 process, verify that I-956F approval is either in hand or actively in process with a solid project filing and a reputable Regional Center.  If neither, your petition will not move forward no matter how old your case is.

Frequently Asked Questions

What is USCIS’s new inventory management approach for I-526E petitions?

USCIS will assign I-526E petitions for processing in a three-tier system: (1) I-526E is assigned only after the associated I-956F is decided, (2) rural petitions receive FIFO priority for anticipated fiscal year rural visa usage, and (3) non-rural (HUA, Infrastructure, Unreserved) petitions are assigned after the rural queue is empty or when USCIS determines sufficient rural petitions have been adjudicated. This policy is effective March 30, 2026.

Does this change how visas are allocated between set-aside and Unreserved categories?

No. The USCIS announcement formalizes petition processing order, not visa allocation. Visa allocation is handled by the Department of State and the National Visa Center independently. USCIS has not published any guidance on how petition approvals will translate to visa allocations when set-aside categories run short — which is already happening with rural visas.

What does the “or” clause mean for HUA and Infrastructure investors?

The “or” creates ambiguity. If USCIS interprets “enough rural petitions adjudicated” as enough to fill one fiscal year’s rural visa supply, HUA and Infrastructure processing could accelerate within months. If “enough” means empty the entire rural queue, processing could be delayed years. For Infrastructure, the small visa supply (~200/year) may force faster processing to avoid underutilized visas. HUA remains in greater uncertainty.

How does I-956F approval affect my petition under the new rules?

I-956F approval is now a prerequisite for petition processing. Without it, your I-526E petition will not be assigned for adjudication, regardless of filing date. The new framework formalizes this gate. If your project is still waiting for I-956F approval, your petition is in a holding pattern but concurrent filing benefits and priority dates will be locked in.

Does this announcement affect existing mandamus actions?

It could. As of March 20, 2026 USCIS has a published framework to defend against mandamus suits.  It is yet to be seen but the burden could shift from proving arbitrary delay to proving that USCIS is not following its own stated procedures. This does not eliminate mandamus as a tool, but it changes the legal argument. Investors must work carefully with an experienced EB-5 litigation firm before initiating litigation.

Which EB-5 investment categories benefit most from this change?

Infrastructure may benefit most in the near term due to its smallest visa supply (~200/year), creating urgency for USCIS to approve petitions quickly or leave allocations underutilized. Rural investors benefit from formalized priority but should anticipate retrogression before any other category, making the financial aspects of the project absolutely critical. HUA investors are in the same place, likely to use Unreserved visas before rural to the extent they have earlier priority dates and enough supply is available.

This content is educational and informational and does not constitute legal or investment advice. Behring Regional Center does not provide immigration legal services — immigration petitions are prepared by your EB-5 immigration attorney. Behring Regional Center is a registered and compliant EB-5 Regional Center. EB-5 investments involve risk, and past performance does not guarantee future results. Securities offerings are made only to qualified investors through a Private Placement Memorandum. This article references publicly available FOIA data and USCIS policy announcements current as of March 2026. EB-5 regulations, visa allocations, and USCIS processing policies are subject to change without notice. References to specific Behring projects (CIVIC, RISE) are informational and do not constitute recommendations to invest. Investment decisions should be made only after review of offering documents and consultation with qualified immigration, legal, and financial advisors.

Disclaimer

This article is educational content provided by Behring Regional Center. It is not legal advice. EB-5 visa processing, petition adjudication, and immigration law are complex and subject to regulatory changes. This analysis reflects publicly available information as of March 5, 2026, and does not constitute investment advice, legal counsel, or strategy recommendations for individual cases. Consult with a qualified immigration attorney about your specific situation. Behring Regional Center operates as a regional center under USCIS authority and does not provide legal services.