The 2026 AILA EB-5 Virtual Conference focused on the future of the program as the September 30 deadline approaches. With hopes high for the renewal of the Regional Center Program, experts highlighted key issues and opportunities for EB-5 stakeholders, providing insights into trends and strategies to successfully navigate the path forward.

Factors Affecting EB-5 Timelines

There is no fixed timeline for the EB-5 process, as the overall duration can vary widely depending on several key factors that can vary from case to case.

First, the type of filing plays a major role: whether you’re filing for a rural, high unemployment area (HUA); direct investment; or a regional center (RC) project can impact both case preparation and processing times.

Similarly, filing Adjustment of Status (AOS) or through consular processing can add additional time, depending on where you are in the world at the time of filing and your specific circumstances. The I-829 petition, which finalizes permanent residency, has its own separate processing as well.

It’s useful to think of the EB-5 process in three interconnected steps: the initial I-526/I-526E petition, followed by either AOS or consular processing, and finally the I-829 petition.

Each of these stages has its own timeline, and delays or complexities in one can affect each other and the overall duration of the EB-5 process.

Investor Protections – Good Faith Investor & Grandfathering Clause

A “good faith” investor is one who has lawfully invested the required funds, maintained the investment for the necessary period, satisfied job creation requirements, and refrained from engaging in any fraud or wrongdoing. This serves as a protection because it ensures that investors who comply with all legal requirements are recognized as legitimate, and their investment and eligibility for permanent residency are generally safeguarded.

The grandfathering clause protects investors whose I-526 or I-526E petitions are filed before September 30, 2026. This means their petitions will be processed under the current EB-5 rules, regardless of any future changes to the program. It provides a safeguard against new legislative or regulatory changes that might otherwise make it harder to qualify, ensuring that the rules in effect at the time of filing continue to apply to their case.

I-526E Approval Requirements

The I-526/E petition must be approvable at the time of filing, meaning the petitioner needs to meet all required criteria with proper documentation. USCIS may argue that the petitioner isn’t qualified if the necessary documentation isn’t provided upfront. However, EB-5 regulations provide some flexibility by allowing the petitioner to be invested or in the process of investing the required capital.

Despite this flexibility, it is essential to fully source all funds at the initial filing, as this creates a clear record for the entire EB-5 process.

Industry professionals generally advise caution with partial investments; fully investing the required capital is safer and reduces the risk of future complications.

If a partial investment is made, every dollar must be properly sourced, and material changes to the source of funds should be avoided once the balance is invested and any interfiling is submitted. Clear, consistent documentation at this stage is critical because it forms the foundation for USCIS review at later stages, including the I-829.

Interfiling & Receipt Notices

When an interfiling is submitted, USCIS does not issue a receipt notice. This means you can’t rely on an official notice to confirm the evidence related to the balance of the investment was delivered, but you can use FedEx tracking as proof of submission. Be aware that Requests for Evidence (RFEs) are still possible even after submission of an interfiling.

EB-5 Visa Backlog & Timing

There is currently no EB-5 backlog because visa numbers are issued when your I-526E or I-526 is approved and not enough approvals are being issued at this time for applicants. Additionally, there are restrictions for nationals from 75 countries that are currently banned from receiving immigrant visas. This means that if applicants from these countries file from abroad, their visas are not being issued, preventing them from entering the US.

Avoiding Visa Ban for Affected Countries

Additionally, nationals from 75 countries are currently subject to restrictions that pause the issuance of immigrant visas. As a result, applicants from these countries who apply from abroad are unable to receive visas, preventing them from entering the United States.

Sustainment Period

Under prior USCIS guidance, EB-5 investors had to sustain their investment through the two-year conditional residence period. After the Reform and Integrity Act, USCIS interprets the requirement to mean the capital must remain invested and at risk for at least two years from when it is deployed. There is pending litigation on this topic, and no final rule on the sustainment period has been issued.

In March 2024, a lawsuit was filed against USCIS, alleging that the agency violated the Administrative Procedure Act (APA) by posting a new interpretation of the EB-5 investment sustainment period on its website without providing the required opportunity for public notice and comment.
In July 2025, a District Court denied both the plaintiff’s motion for summary judgment and DHS’s cross-motion to dismiss without prejudice. The court’s decision was based on USCIS’s statement that it intended to issue a Notice of Proposed Rulemaking (NPRM) by November 2025, and the court indicated it would refrain from further rulings until the NPRM is published.
As of February 26, 2026, USCIS has not yet issued the proposed rule or a final rule addressing the sustainment period.

Loans from Friends/Family vs Banks/Financial Institutions

Loans from banks or other financial institutions are generally viewed as reliable by USCIS, and it is not necessary (nor possible) to trace the source of the bank’s funds. In contrast, loans from friends or family members require careful documentation to establish legitimacy.

Applicants using personal loans must provide clear evidence of the source of funds, such as bank statements, tax returns, or other supporting records. Additionally, USCIS may inquire about the investor’s repayment terms, so it is important to maintain documentation showing that the loan will be repaid from lawful sources.

The investor should also always maintain records demonstrating that lawfully sourced funds were actually used for repayment, so they are able to provide this information if USCIS requests it at a later stage. Proper documentation ensures compliance with EB-5 regulations and helps prevent complications at later stages, including the I-829 petition.

Do Not Disguise Loans as Gifts

Do not disguise a gift as a loan, as doing so is considered immigration fraud and can carry serious legal consequences. Immigration fraud generally involves using deception, false documents, or misrepresentations to obtain—or attempt to obtain—an immigration benefit under U.S. law. This can include providing false information to secure a visa, other immigration documentation, entry into the United States, or any other immigration benefit, such as work authorization.

In the context of EB-5, disguising a gift as a loan (which requires repayment) misrepresents the source and nature of the investor’s funds. All loans should be clearly documented, with repayment terms explicitly outlined, and kept distinct from gifts to ensure compliance with EB-5 regulations.

Importance of Consistency

The information you provide at the I-526E stage can be reviewed again at the I-829 stage. Any inconsistencies or gaps in your documentation, or over-promising at the initial filing, will likely resurface and could cause issues later on. It’s important to be consistent in your information throughout the entire EB-5 process.

Key Takeaways

To ensure a smooth EB-5 process, it’s important to submit clear, consistent documentation throughout the stages. Always aim to invest the full required capital, avoid material changes, and maintain transparent source of funds documentation. Being prepared for USCIS scrutiny at both the I-526E and I-829 stages will help you avoid common pitfalls.

For more information about the EB-5 program or to determine whether you may qualify, please contact Jacqueline Treviño at jtrevino@psbplaw.com.