Homeland Security proposes a $1.4m EB-5 tier for high employment areas

The Department of Homeland Security published a proposed rule on 2 July 2026 that would require an EB-5 investor to put in $1,400,000 where the new commercial enterprise is principally doing business in what the rule calls a high employment area.

The minimum in force today is $1,050,000, or $800,000 in a targeted employment area. Those two amounts are set by statute. The third exists only on paper.

What changed

The proposal runs to 127 Federal Register pages and would implement the EB-5 Reform and Integrity Act of 2022 across the programme. It carries document number 2026-13392, sits on docket USCIS-2026-0100, and is open for written comment until 31 August 2026.

Within it, one change carries a price tag an investor can read directly. The Immigration and Nationality Act has allowed a higher amount for an investment in a high employment area since the programme’s first iteration in 1990.

DHS writes in the preamble that the legacy Immigration and Naturalization Service “did not define or consider a ‘high employment area’ as a separate area of investment”, and that DHS itself has “never raised the investment amount for such an area”. The proposal would set it at $1,400,000.

This is a separate matter from the September dates already fixed in statute. Under the 2022 Act, visas under the Regional Center Program are made available through 30 September 2027, and a separate 2026 date governs the treatment of petitions already filed; an earlier analysis sets the two out and distinguishes them. The 31 August date here closes a comment window on a proposal, and closes nothing else.

What the rule actually says

The proposal would leave the two statutory amounts alone and add a third above them.

• $1,050,000 — the standard minimum for a petition filed on or after 15 March 2022. Statutory, in force.
• $800,000 — for an investment in a targeted employment area or an infrastructure project. Statutory, in force.
• $1,400,000 — for an investment in a high employment area. Proposed only.

DHS reached the third figure by multiplying $1,050,000 by 133 per cent and rounding up to the nearest $50,000, which places the standard amount at 75 per cent of the new one. Its stated reason is that this mirrors the discount the statute sets on the other side: from 1 January 2027 the targeted-employment-area amount becomes 75 per cent of the standard amount.

The symmetry is prospective rather than present, because today’s figures are fixed sums written into the statute — $800,000 is about 76 per cent of $1,050,000, and the gap below the standard amount is $250,000 against the $350,000 the new tier would open above it.

The statute would allow up to three times the standard amount, which DHS notes would be $3,150,000; the preamble observes that the proposal sits well below that ceiling.

A high employment area would be defined in proposed 8 CFR 204.401 as a census tract, or contiguous census tracts, in a metropolitan statistical area where the new commercial enterprise is principally doing business, and where the national average unemployment rate is at least 150 per cent of the rate in that area, compared using the same data source and the same timeframe. It reaches only those tracts.

DHS considered and rejected the aggregation method used on the high-unemployment side, which lets an applicant add tracts directly adjacent to the project tracts: allowing it here would only lower the amount required in an area already experiencing high employment.

On the other side of the same test, the 2022 Act moved designation of a high unemployment area to the department, ending certification by state government entities; the rule proposes that USCIS decide when it adjudicates the project application or the standalone investor’s petition.

A rural area, the other route into a targeted employment area, would be one outside a metropolitan statistical area and outside any city or town of 20,000 or more at the most recent decennial census.

A high-unemployment designation would run two years from the filing of the project application, or from a standalone investor’s investment, extend a further two years from the approval notice, and be renewable in the 90 days before it lapses.

Priority date retention would be written into the rules. An investor whose regional centre is terminated, or whose new commercial enterprise or job-creating entity is debarred, and a standalone investor who needs to make a material change, could keep the priority date of the earlier petition by filing an amendment within 180 days of notification from USCIS, whether that earlier petition was approved or still pending.

Against that protection runs a new hazard for anyone filing electronically: all required initial evidence would have to arrive within 30 days of filing, failing which USCIS would deny the petition and no priority date would be established at all.

Two enforcement mechanics complete the picture. The five-yearly audit of each regional centre is already required by statute.

The rule would add the procedure — audits under Generally Accepted Government Auditing Standards, 30 days to respond to an audit notice, five years of records to preserve, site assessments at associated new commercial enterprises and job-creating entities, and a notice of intent to terminate where a centre fails to respond or otherwise attempts to impede the audit.

Separately, withdrawing an approved EB-5 petition would once again revoke it automatically, and that revocation would not stop USCIS revoking an approval on other grounds at any time.

Who is affected

The audit provisions reach every designated regional centre. A footnote to the rule reports 547 approved centres, citing a USCIS list the agency last accessed on 2 June 2025.

How many investors the new tier would catch is not known. What can be said is where it bites: on an investment whose new commercial enterprise is principally doing business in a tract, or contiguous tracts, meeting the low-unemployment formula, and only there.

Because the measurement runs at census-tract level, two enterprises in the same city can fall on opposite sides of the line, and sitting in a strong metropolitan economy is not by itself the test. For an investor weighing such a project, the difference between the tiers is $350,000.

The priority-date provisions reach a defined class — investors hit by a termination or debarment, and standalone investors needing a material change — not everyone with a petition on file.

The rule would otherwise apply only to petitions filed on or after its effective date, but names priority date retention for pre-15 March 2022 filers as an express exception; a footnote puts that group at roughly 1,500 petitions still pending as at 1 May 2025.

Capital, timing and obligations

Nothing in the tier takes effect on publication of the proposal. The proposed regulatory text states that the $1,400,000 amount would apply to petitions filed on or after a date 60 days after the final rule is published, and carries a bracketed placeholder where that date will go. No final rule has been published, so the date does not yet exist.

A separate clock is fixed by statute regardless of this rulemaking. On 1 January 2027, and every five years after, the standard amount adjusts by the cumulative change in the consumer price index for all urban consumers measured from 1 January 2022, rounded down to the nearest $50,000, and the targeted-employment-area amount becomes 75 per cent of it.

Were the proposal adopted, the high-employment-area amount would track at 133 per cent, rounded up to the nearest $50,000. DHS says it will publish the figures in the Federal Register, and that USCIS will show on its website the amounts applicable by filing date.

One trap deserves naming, because it misleads in both directions. The text of 8 CFR 204.6 still displayed in the Code of Federal Regulations reads $1,800,000 as the standard amount, $900,000 in a targeted employment area, and $1,800,000 in a high employment area.

Those figures come from the 2019 EB-5 Modernization Rule, which the United States District Court for the Northern District of California vacated on 22 June 2021 in Behring Regional Center LLC v. Wolf, reverting the section to its pre-2019 form. DHS had not issued a rule removing the superseded text when the Reform and Integrity Act was signed on 15 March 2022, and it has not done so since.

An investor reading the published regulation today is given a standard figure and a targeted-employment figure that are both too high, and a high-employment figure carrying no premium at all. The proposal would remove and reserve that section and rebuild the programme in a new subpart D at 8 CFR 204.400 to 204.435.

Risks and unresolved questions

DHS has not said how many investors the new tier would catch. The phrase “high employment” appears in the preamble and in the regulatory text and nowhere in the rule’s economic analysis, which means the agency has published no estimate of the number of petitions that would fall into the category.

DHS has invited comment on the amount calculation, on the percentage used to identify such an area, and on alternatives — the wording of a figure that may still move.

Nor is the classification self-evident when an investor is choosing. The definition makes the answer depend on which unemployment data is used and over what period, since the comparison must be drawn from a single source and timeframe.

A proposed rule is a statement of intent. DHS may adopt the figure, change it, or drop the tier after reading the comments; the proposal also contains a severability provision at 8 CFR 204.435.

What to watch next

Three markers matter. The first is whether a final rule issues at all, and on what date, because the tier would begin 60 days after publication.

The second is the Federal Register notice carrying the adjusted statutory amounts from 1 January 2027, which will arrive whether or not this rule is ever finished. The third is whether DHS holds at $1,400,000 or moves toward the $3,150,000 the statute permits.

Until a final rule appears, the amounts governing a petition filed today remain $1,050,000, or $800,000 in a targeted employment area or infrastructure project.

Where any other figure is quoted, the question is which document it comes from and what its legal status is on the day of filing — worth checking even when the figure appears to come from the government, since the published regulation is itself one source of the error.

Updated 3 September 2026. The comment period on the proposed rule closed on 31 August 2026.

This section reports what the docket now shows, what has to happen before a final rule can publish, and how the timing of such a rule sits against two dates already fixed in statute: the 30 September 2026 filing cutoff that carries the processing protection, and the 1 January 2027 adjustment of the investment amounts. The article above is unchanged.

Update, 3 September 2026: the comment window has closed

The window shut at 11.59 pm eastern time on 31 August 2026. The regulations.gov record for the proposed rule now reports the comment period as ended and the document as closed to comment, and the docket carries 463 posted comments, the most recent of them posted on 1 September. That count is of comments the agency has posted, which is not the same measure as comments received.

No final rule exists. Checked on 3 September, the Federal Register carries one document filed under docket USCIS-2026-0100 and one associated with RIN 1615-AC94, and both are the proposal published on 2 July.

What has to happen before a final rule can publish

Two requirements are visible in the published record, and only one of them carries a stated period.

One is consideration of the comments. Under 5 U.S.C. 553, the agency must consider the relevant matter presented and set out in the rule it adopts a concise general statement of basis and purpose. No period is prescribed for that work.

The other is central review. DHS states in the proposal that the Office of Management and Budget designated the rule a significant regulatory action under section 3(f) of Executive Order 12866, though not economically significant under section 3(f)(1), and that the rule was reviewed by OMB before publication.

That designation also governs what happens next: the issuing agency must give the Office of Information and Regulatory Affairs the text of the draft regulatory action together with an assessment of its costs and benefits.

The office must then either waive review or notify the agency in writing of the results within 90 calendar days — or within 45 days where it has already reviewed the same information and there has since been no material change in the facts and circumstances on which the action rests.

That period may be extended once by no more than 30 calendar days on the written approval of the Director, and at the request of the agency head. The order also requires the office to keep a public log carrying, at a minimum, the status of the actions it has under review.

Publication does not end the sequence, and the two intervals that follow it are not the same clock. A substantive rule must ordinarily be published not less than 30 days before its effective date, subject to three exceptions set out in the same subsection.

The proposal adds a longer and differently anchored interval for the tier itself: on its default timing, the new amount would reach only petitions filed on or after a date 60 days after the final rule appears. The regulatory text carries a bracketed placeholder where that date will go.

The tier’s own text sets a date against which its figure can expire

Proposed 8 CFR 204.407(b)(3) does two things in a single paragraph. It attaches $1,400,000 to petitions filed on or after that 60-day date. It then provides that from 1 January 2027, and every five years after, the amount adjusts for petitions filed on or after each adjustment’s effective date to equal 133 per cent of the standard minimum investment amount, rounded up to the nearest $50,000.

Read as the paragraph stands, the figure has a window rather than a life. For $1,400,000 to be the number any petition is filed against, the 60-day date would have to fall on or before 31 December 2026, which puts publication of the final rule on or before 1 November 2026.

On that reading, and if the final text is unchanged, a rule published later would open the tier at whatever the January adjustment produces under the consumer price index formula at 8 U.S.C. 1153(b)(5)(C)(iii). Those amounts have not appeared: across 2026 to date the Federal Register index returns no document touching 8 CFR part 204 other than the July proposal itself, and this article does not estimate them.

The statutory ceiling moves on the same mechanism, because the Act permits up to three times the standard amount “as adjusted”, not three times today’s.

None of that is a forecast about when a rule will appear. It is the arithmetic of the text now on the table, and the final text could differ from the proposal.

30 September 2026 is untouched by this rulemaking

The nearer of the two statutory dates belongs to a different provision and is not in play here.

The processing protection for regional-centre petitions filed on or before 30 September 2026 sits at 8 U.S.C. 1153(b)(5)(S), under the heading “Protection from expired legislation”: the Secretary must continue processing such petitions notwithstanding the expiry of the authorising legislation, may not deny them on that ground, and may not suspend or terminate visa allocation to the beneficiaries of those approved.

That date was set against the 2027 authorisation date in an analysis dated 11 August.

The proposal does not move it, and does not purport to. It names the provision once, in its statement of legal authority, as “future protections from expired legislation”, and proposes no regulatory text under it. The date itself appears nowhere in the 127 pages.

The rule would otherwise apply only to petitions and applications filed on or after its effective date, subject to six listed exceptions, none of which concerns the 2026 protection.

What to watch next

The first marker is a new entry in the regulatory review office’s public log identifying a draft final rule in this rulemaking. The proposal itself went through that office before publication, so it is the final-rule stage that would be the new information, and an entry at that stage would establish that a draft had been submitted for review.

The second marker is publication in the Federal Register, because the 60-day date runs from there and nowhere else. The third arrives independently of this rulemaking: the technical amendment carrying the investment amounts that adjust on 1 January 2027, which the statute requires whether or not the proposal is ever finished.

On 3 September 2026 an EB-5 petition is governed by $1,050,000, or $800,000 in a targeted employment area or infrastructure project. Two separate events would change that. The statutory amounts adjust on 1 January 2027 under a mechanism that runs whether or not this rulemaking finishes.

And on the proposal’s default timing, the high-employment-area amount would reach petitions filed on or after a date 60 days after a final rule publishes — a date that could fall before 1 January 2027 if the rule appears early enough, and one the final text could set differently.