The EB-5 visa program enters 2026 amid an evolving U.S. immigration landscape marked by tightening policies, increased compliance scrutiny, and growing political uncertainty. Despite these challenges, many immigration attorneys emphasize that EB-5 remains a pathway to U.S. residency for foreign investors under current law.
Developments and challenges that marked EB-5 in 2025
In 2025, key developments included court decisions and USCIS policy updates affecting EB-5 filings, particularly regarding source-of-funds documentation and family-planning considerations for countries facing backlogs.
David Hirson from Hirson & Partners notes that the EB-5 industry faced significant challenges in its third year under the EB-5 Reform and Integrity Act of 2022 (RIA). He highlights market confidence that the program will rebound and remain fully operational under the current law as a key improvement.
However, increased USCIS enforcement affected investor demand. “USCIS intensified compliance enforcement, with I-956 audits, fund tracking scrutiny, and integrity measures now routine, he adds.
Hirson also notes that concerns arose when EB-5 visa issuance paused after the FY 2025 cap was reached, particularly for Chinese and Indian investors. Additionally, he says, “I-956F project approvals remained slow, delaying capital release and forcing greater reliance on bridge financing.”
He also recaps that USCIS’s challenges with EB-5 loan programs have led to numerous denials, and that investor caution remains due to past project failures and litigation history.
Karuna Simbeck of Klasko Immigration notes that this year’s EB-5 program also changed following the 2024 Battineni v. Mayorkas ruling. The D.C. District Court decided that USCIS cannot require EB-5 investors to trace every dollar of their investment.
“The court held that what matters under the regulation is that the investor lawfully obtained their capital and that the immediate source is documented — not exhaustive tracing of prior transfers,” Simbeck says.
Jimena Cabrera from Cabrera Law notes a change to the Child Status Protection Act for EB-5 dependents under 21. The CSPA allows children to remain classified as such under 21, preventing them from aging out.
The date is the date on which a visa can be used to calculate a child’s age for CSPA purposes. This applies to Adjustment of Status (AOS) applications filed on or after August 15, 2025.
“As a result, an investor in the U.S. from a backlog country may be able to file for adjustment of status when the Dates for Filing Chart becomes current. However, their children, who rely on the CSPA, will not know whether they are protected until the Final Action Dates become current,” Cabrera cautions.
Some attorneys are also critical of the EB-5 trade association IIUSA’s lawsuit challenging USCIS’s 2-year sustainment period for EB-5 investments. In July, the US District Court for the District of Columbia decided not to issue a final determination until USCIS completes its rulemaking and issues the Notice of Proposed Rulemaking over RIA, which is currently delayed.
Rakesh Patel of PSBP Law highlights the increased interest in EB-5, driven by improving priority dates and recent policy changes, particularly the new Gold Card. “The idea of a Gold Card and other external factors that added to the interest of EB-5 was great for our industry.”
The Gold Card: A newcomer in the U.S. immigration market
Among the topics shaping the EB-5 program in 2025, the Gold Card proposal is a noteworthy development aimed at further attracting foreign investors.
In February, the administration announced the new visa, which initially caused confusion because it appeared to replace the EB-5 visa with a $5 million “gift,” as the government claimed the EB-5 program was riddled with fraud. In September, the Gold Card structure was adjusted to align with the EB-1A and EB-2 options, introducing a $1 million gift requirement per individual or $2 million for businesses.
Many investors can compare the two pathways based on their underlying structures—gift versus investment—and on whether the immigration benefit is linked to a financial strategy and potential returns.
“Under the Gold Card, the applicant must gift the funds to the U.S. government,” Cabrera notes, “whereas under EB-5, the applicant invests, must create 10 full-time jobs, and has the possibility of recovering their investment.”
According to Tahmina Watson of Watson Law, distinguishing between a gift and an investment is significant for investors.
“For many globally mobile individuals, that distinction may matter. The EB-5 visa will continue to appeal to investors who value both immigration benefits and financial strategy,” Watson says.
Immigration attorneys also note that questions remain about how the visa process would operate and expectations for agency guidance, with particular focus on whether it will complement or disrupt the EB-5 investment structure.
Jessica DeNisi of Klasko Law hopes for further clarity on whether the creation of the new visa eligibility pathway will “complement or disrupt the traditional EB-5 investment model.”
Until Congress officially approves the program, applicants and practitioners will continue monitoring upcoming guidance to understand how the Gold Card program will operate and how it relates to current immigrant visa categories.
What lies ahead for the EB-5 visa in 2026?
Looking ahead to 2026, many attorneys described a year shaped by optimism and urgency—optimism driven by expectations of greater stability and more explicit rules, and urgency driven by timing pressures that will influence investor decision-making and filing strategy.
With EB-5 reauthorized only through Sept. 30, 2027, the program’s approaching sunset is expected to drive heightened activity in 2026 as investors and stakeholders plan around key timing milestones.
Cases filed before Sept. 30, 2026, will be grandfathered, likely leading to a surge in filings. As the 2027 deadline nears, the EB-5 industry is expected to thrive in 2026 as investors seek to secure protections before changes take effect.
“I do think the sunset of 2027 and the lock-in of 2026 will result in a thriving EB-5 industry for 2026,” says Patel.
Additionally, litigation and formal rulemaking are key forces expected to reshape adjudication standards and compliance expectations, including court decisions affecting “path of funds” requests and anticipated regulations defining RIA terms such as sustainment-period requirements.
For Watson, the EB-5 program will remain a critical visa category in 2026. “Especially as immigration policies continue to tighten and shift. The newly imposed $100,000 H-1B fee is likely to influence decision-making among many skilled workers and employers, prompting some to consider EB-5 as a more predictable and direct path to permanent residence.”
Trade association Invest In the USA (IIUSA) said that regarding the EB-5 sustainment-period lawsuit pending a final resolution, “by 2026, stakeholders expect proposed regulations that bring long-awaited clarity to EB-5 compliance and adjudication practices.”
Meanwhile, Hirson notes that investment behavior in 2026 would focus particularly on the Rural set-aside projects. However, he cautions that the quality of rural projects is likely to come under increased scrutiny, as “USCIS is expected to raise job creation verification standards.”
Regarding regulatory developments, he projects that the planned RIA rulemaking will prompt changes to fund administration, redeployment, and the sustainment period.
He also sees lobbying efforts aimed at Congress and the White House to extend the grandfathering period. “Get it extended by one year, to get the program itself extended or made permanent, to get derivative family members excluded from the 10,000 count, and to get additional visa numbers allocated to the program.
Simbeck concludes that the judiciary landscape for EB-5 litigation in 2026 will be shaped by the non-binding references established in the 2024 Battineni v. Mayorkas ruling.
“These are district court decisions and not universally binding across all jurisdictions or USCIS adjudicators. The real test will be whether USCIS embraces the logic (or appeals), how the agency adjusts its policy manual or RFEs, and whether future courts expand or limit these holdings.”
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