EB-5 Investment Immigration: New Policies and Application Practice – Visa Allocations, Concurrent Filing, and Child Protection

I.Introduction to EB-5 Investment Immigration

II.Eligibility Requirements and Conditions

III.Policy Evolution and Industry Development

IV.Interpretation of the New EB-5 Law: Investment Thresholds, Visa Set-Asides, and the Two-Year Investment Period

V.EB-5 Application Process (Adjustment of Status vs. Consular Processing)

VI.Details of Concurrent Filing (I-526E + I-485): Procedures, Eligible Applicants, and Associated Risks

VII.Visa Bulletin: Understanding Table A (Final Action Dates) and Table B (Dates for Filing)

VIII.CSPA Policy and the 2025 Regulatory Change: Comparing Old and New Rules and Their Impact on Children and Concurrent Filing


I.Introduction to EB-5 Investment Immigration

The U.S. employment-based immigration system is divided into five preference categories (EB-1 through EB-5). The EB-5 Immigrant Investor Program, established in 1990, has evolved through two distinct phases: the legacy framework and the current statutory regime. The key rules are as follows:

Legacy Framework: For applicants born in mainland China, the current cutoff date is December 8, 2015. The global annual green card allocation for EB-5 is approximately 10,000 visas. The program’s advantages under the legacy system include: No requirements for age, education, language proficiency, or work experience; No requirement for the applicant to personally start or manage a business; A principal applicant may secure lawful permanent residence for their entire family (spouse and unmarried children under 21).

Current Framework (Post-2022 Reform): The new Act introduces three reserved visa categories: Rural projects (20% of EB-5 visas); High Unemployment Area (HUA) projects (10% of visas); Infrastructure projects (2% of visas). All reserved categories currently show a “C” (Current) status in the visa bulletin, indicating no backlog. Key advantages include: Eligibility for concurrent filing of Form I-485 (Application to Register Permanent Residence or Adjust Status), including Form I-131 (Application for Travel Document) and Form I-765 (Application for Employment Authorization); Enables F-1 students to maintain legal status independently of employer sponsorship; No restrictions on future employment classification. In practice, over 50% of applicants are F-1 students filing independently, including graduates from elite institutions such as Harvard Law School and major corporations like JPMorgan Chase. A primary motivation is securing lawful status after Optional Practical Training (OPT) expires. 


II.Eligibility Requirements and Conditions

Basic Investor Qualifications: Applicants must satisfy both U.S. securities law and immigration law requirements to qualify as EB-5 investors. This is a foundational prerequisite for the EB-5 petition.

Lawful Source of Funds: Investors must provide comprehensive documentation proving the lawful source of investment capital. This requirement is particularly critical for applicants from mainland China and often presents a significant challenge. Not all interested applicants can readily meet this standard. 

Criminal and Immigration History Considerations

·Criminal Convictions: Principal applicants with serious criminal records (e.g., crimes involving moral turpitude or threats to public safety) are generally advised against applying. For minor economic offenses (e.g., bribery), applicants may apply for a waiver after 15 years post-sentence, though waiver approval rates are uncertain.

·Removal Orders: Applicants with prior removal orders must wait until the reentry bar expires before entering the U.S., but they may file the EB-5 petition in advance and request deferral of consular interview scheduling.

Health Requirements: Applicants must not have a communicable disease of public health significance.


III.Policy Evolution and Industry Development

(I)Policy Evolution

Original Program (1990): The EB-5 program was established in 1990, requiring foreign nationals to make a capital investment in the United States and create at least 10 full-time jobs for U.S. workers to obtain permanent residency. However, the initial investment threshold of $500, 000 was often insufficient to cover two years of wages for 10 direct employees (estimated at $600,000), creating operational challenges.

Regional Center Program (1992): Introduced in 1992, the Regional Center Program was a transformative innovation that allowed counting of indirect and induced jobs through economic modeling. Regional centers manage pooled investor funds and use economic impact reports to demonstrate job creation. This framework remains central to the EB-5 system. The EB-5 Reform and Integrity Act of 2022 enhanced, rather than replaced, this model.

The “At-Risk” Requirement: EB-5 investments must involve a genuine risk of loss. Any guaranteed return, buyback agreement, or capital repayment guarantee violates the “at risk” requirement under immigration law. However, legally compliant commercial arrangements—such as corporate guarantees from a parent company—are permissible, provided they do not eliminate the investment risk. One regional center was fined tens of millions of dollars for offering real estate replacement schemes.

Socioeconomic Value: EB-5 is widely recognized as one of the most successful U.S. immigration programs, significantly contributing to economic development and job creation. State governments closely monitor job creation metrics.

(II)Industry Development

The EB-5 industry has experienced significant fluctuations over two decades: In 2003, only a handful of regional centers existed. As demand for U.S. immigration grew, the EB-5 industry underwent a period of rapid expansion, peaking with thousands of designated regional centers. From 2018-2019, severe visa backlogs (up to 15 years) caused project stagnation and industry contraction. In recent years, policy adjustments and a return to market rationality have led to industry consolidation, leaving only a handful of high-quality, well-regulated operators. 

Shift in Approval Model: Originally, permanent green cards were issued directly. Due to cases of Middle Eastern investors withdrawing capital prematurely (resulting in idle capital and unmet job creation goals), the process shifted to a two-stage model: conditional permanent residency (two years), followed by removal of conditions (Form I-829) upon verification of job creation. Approval rates have declined from near-universal acceptance to approximately 30–50% in recent years.

Lessons from Canada: The U.S. learned from Canada’s failed investment immigration program, where investors could obtain permanent residency by purchasing government bonds (e.g., federal bonds), resulting in capital not being invested in the real economy and job creation being nominal. In light of this, U.S. regulations clearly stipulate that EB-5 investments must create “real job opportunities” — that is, investments must be made in real projects and directly or indirectly generate at least ten full-time jobs — rather than relying solely on formal financial instruments such as U.S. government bonds, ensuring a substantive connection between immigration policy and actual economic needs.


IV.Interpretation of the New Act

The full name of the new legislation is the EB-5 Reform and Integrity Act of 2022, enacted on March 15, 2022, and effective through September 30, 2027.

(I)Investment Thresholds and Visa Set-Asides

1.Investment Thresholds

This is temporary legislation; future adjustments to investment amounts and TEA (Targeted Employment Area) definitions are possible. Current thresholds: $800,000 (plus administrative fees, totaling $870,000-$880,000) in a TEA (rural or high unemployment area); $1,050,000 in a non-TEA area. The regional center program operated under minimal changes for 29 years, sustained only by congressional reauthorizations. The new Act introduced comprehensive reforms to investment thresholds and compliance mechanisms.

2.Visa Set-Asides

The new Act establishes three reserved visa categories: Rural Projects (20%): Located outside Metropolitan Statistical Areas or in areas with a population under 20,000; eligible for priority processing. High Unemployment Area (HUA) Projects (10%): Must be in areas with unemployment at least 150% of the national average; requires USCIS designation. Infrastructure Projects (2%): For government-supported major infrastructure developments.
Unused set-aside visas may carry forward annually. 

From a project distribution perspective, the majority of EB-5 projects are concentrated in high unemployment areas (HUAs), while rural projects are relatively fewer in number (e.g.,Pine State Regional Center, Twin Lakes). Recently, rural projects have gradually increased, but they still represent a small overall share. In practice, the priority date is the key factor in determining whether an application is subject to visa backlog. If the priority date is current, applicants may file Form I-485 at any time. Currently, HUA projects face the risk of retrogression, whereas rural projects remain relatively secure. Additionally, the visa bulletin is updated at the beginning of each new fiscal year on October 1. High unemployment area categories may suddenly become backlogged by the end of the fiscal year; even if rural projects eventually face retrogression in the future, applications filed recently will not be immediately affected. 

(II)Source of Funds and Filing Process Reforms

Applicants must prove lawful source of funds. While standards remain largely consistent with the legacy program, USCIS has increased Requests for Evidence (RFEs), indicating stricter scrutiny.

The most significant change under the new policy is the “concurrent filing mechanism”, which allows applicants to file Form I-485 (including Form I-131 (Application for Travel Document) and Form I-765 (Application for Employment Authorization)) simultaneously upon filing Form I-526E, without waiting for I-526E approval. This mechanism is particularly beneficial for: F-1 students whose OPT is nearing expiration (helping them lock in lawful status); Families with children’s K–12 education needs (as I-485 holders are eligible to attend public schools). It should be noted that applicants must not depart the United States before I-131 approval. Even after I-131 approval, reentry is subject to CBP officers’ discretion and carries immigration risks. Applicants without long-term U.S. residence plans are advised not to use the concurrent filing mechanism lightly. 

(III)Enhanced Compliance Requirements

The new Act imposes stricter compliance obligations on regional centers and project sponsors, introducing the I-956 series of forms:

Form I-956G: Regional Center Annual Statement. This is the annual filing form through which regional centers pay fees to USCIS to maintain their certified status. A regional center must have timely submitted Form I-956G and paid the required fee in order to remain operational — therefore, this form is critically important. Investors must first confirm that the project sponsor has a payment receipt for Form I-956G.

The following three forms are typically filed together with the investor’s Form I-526E:

Form I-956F: Application for Approval of an Investment in a Commercial Enterprise. Form I-956F is a project-level legal filing that can only be submitted by an approved regional center. Once the receipt notice is received, this form may be submitted together with other documents.

Form I-956H: Bona Fides of Persons Involved with the Regional Center Program. This form is used to register information about individuals involved in the regional center and the project with USCIS.

Form I-956K: Registration for Direct and Third-Party Promoters. This form is used to register information about the project’s promoters with USCIS.

In the standard process, the typical sequence is as follows: the project sponsor submits Form I-956F → USCIS accepts the filing → the investor transfers investment funds → the investor files Form I-526E.

(IV)Comparison: Direct Investment vs. Regional Center

Under the new Act, direct investments projects are also eligible for the $800,000 investment threshold in Targeted Employment Areas (TEAs), making them suitable for applicants with strong project leadership capabilities. However, such applicants must prepare the full set of required documentation independently, including business plans and job creation reports, with upfront costs reaching up to $200,000. A typical example includes entrepreneurial projects led by senior executives from major internet companies. Alternatively, some applicants choose to become project sponsors by acquiring existing “shell” regional center resources. In such cases, they must carefully assess ongoing operational costs. The Blue Ribbon project, led by PKF Legal (law firm), is a representative example of this model. By comparison, the regional center model leverages indirect job creation methodologies, offers more mature operational frameworks, and provides relatively higher risk diversification.

(V)The Two-Year Investment Period under the New Act

A key distinction between old and new EB-5 policy is the investment maintenance requirement: Legacy Rule: Investment must be maintained until I-829 approval (typically 5–6 years). Due to long China backlogs (up to 10–15 years), multiple reinvestments were often required. New Rule: Investment must be “at risk” for only two years. Repayment may occur after two years, even if the conditional green card period has not ended. This decouples investment duration from immigration status and prohibits mandatory secondary investments.

Separation of Investment and Immigration Processes: The Dual-Track Operating Mechanism. Investment Track: Capital deployment → Job creation → 2-year risk period → Repayment. Immigration Track: I-526E → I-485 → I-829 (filed 21 months after I-485 approval). Crucially, investors may file I-829 after 21 months of conditional residence, regardless of whether the investment term has concluded.

Dispute over the Start Date of the 2-Year Investment Period under the New EB-5 Rules: Regional centers often assert the date of fund transfer; attorneys recommend using the I-526E filing date (more conservative). Practitioners must ensure funds are actively deployed and I-526E is filed. Beware of projects advertising “2-year return” (implying 50% annual return), which may signal fraud. For investors replacing a denied I-526E applicant, the start date of the two-year period is legally ambiguous. This creates litigation risk. Mitigation strategies include avoiding regional centers with high denial rates and requiring written agreements on investment period calculation.


V.EB-5 Application Process (See Diagram)




Applicants Outside the U.S.: File I-526E → Approval → NVC processing and Consular interview → Enter U.S. with 2-year conditional green card → File I-829 after 21 months.

Applicants Inside the U.S.: File I-526E → Approval → File I-485 → Biometrics → I-485 approved → Receive 2-year conditional green card → File I-829 after 21 months.

Risk of I-485 Filing Timing:

·Current applicants in high-unemployment areas face time pressure when filing I-485 in the United States.

·They must complete the filing before the end of the fiscal year; otherwise, they may lose eligibility due to visa bulletin retrogression.

·Applicants in rural area projects currently do not face this risk.


VI.Details of I-526E + I-485 Concurrent Filing

To file I-485 concurrently while in lawful nonimmigrant status, applicants must first confirm visa availability. If the Final Action Date (Table A) is current, I-485 may be filed at any time.

To mitigate risk, it is advisable to wait at least 90 days after lawful entry before filing I-485, even though not legally required, to avoid allegations of preconceived immigrant intent. Applicants in the process of changing status (e.g., from B-1/B-2 to F-1 via pending I-539) may not file I-485 until the new status is granted, followed by a 90-day waiting period. Multiple I-539 filings may increase scrutiny.

Concurrent filing follows a “principal applicant leads, derivatives follow” principle. Filing separately increases risk. It is advisable for a family member with greater time flexibility to file as principal (For example: the principal applicant files I-485 in the U.S. after I-526E approval, while derivative applicants file DS-260 from outside the U.S.). If the principal obtains conditional residence within one year, derivative applicants may complete Follow-to-Join by filing Form I-824 (Application for Action on an Approved Application or Petition), provided that a qualifying relationship (e.g., marriage lasting at least two years) can be demonstrated. If a derivative applicant is unable to enter the U.S. in a timely manner due to health issues or work commitments, consular processing allows for theoretically indefinite deferral (e.g., by repeatedly selecting “Not Ready to Travel” or “Will Be Ready to Travel in One Year”). However, if deferral is denied and follow-to-join is no longer available, family reunification may still be pursued through the F-2A category (as the spouse of a lawful permanent resident).


VII.Visa Bulletin: Table A and Table B

In the U.S. immigration visa bulletin, Table A (Final Action Dates) and Table B (Dates for Filing Applications) are critical.

Table A (Final Action Dates): Table A is the final determination date for immigration applications, indicating when applicants can actually obtain a green card or immigrant visa. When an applicant’s priority date is earlier than the date listed in Table A for their category, the application may be formally approved: overseas applicants will receive NVC instructions; in-country applicants may file Form I-485 to adjust status and enter the final adjudication stage. The symbol rules for Table A are as follows: “C” means Current (no backlog); “U” means Unauthorized (not available); if a specific date is listed, only applicants with a priority date earlier than that date are eligible. For the EB-5 category, the three reserved categories—rural (20% quota), high unemployment area (10% quota), and infrastructure (2% quota)—are currently marked “C” in Table A, meaning no backlog. 

Table B (Dates for Filing): Table B is a predictive chart, typically 6 to 12 months ahead of Table A, published by the Department of State. It is designed to provide applicants with an earlier window to prepare and submit application materials,  while Table A reflects the actual processing times of cases that have been completed.

In practice, when Table B is open (not consistently available each month and subject to variation), applicants may prepare basic documents (such as visa fees and notarized documents) and file Form I-485 while in the United States (e.g., on a B-2 visa) to await processing. A typical scenario is when an applicant’s priority date is not yet current in Table A but has become current in Table B, allowing the applicant to enter the U.S. on a tourist visa and await further processing.Applicants may choose either consular processing or I-485 adjustment of status. Although switching between the two is possible, frequent changes may cause delays. Therefore, it is recommended that all family members unify their processing method to reduce risk. For the EB-5 special categories, the reserved categories (rural 20%, high unemployment 10%, infrastructure 2%) are also marked “C” in Table B when it is open. Applicants must regularly check the USCIS official website to confirm whether Table B is open for use. Risks include potential case management errors by USCIS, the requirement to submit formal application documents when switching processes, and the general advisability against frequent changes to avoid extending processing times.

Note: Effective August 15, 2025, USCIS will require all new adjustment of status applications to use Table A (not Table B) to determine a child’s age under the Child Status Protection Act (CSPA). Details are provided below.


VIII.CSPA Policy and the 2025 Regulatory Change

In EB-5 investment immigration, derivative applicants include the spouse and unmarried children under the age of 21. Whether a child can obtain immigrant status together with the principal applicant depends on the “age freezing” and “age locking” mechanisms.

“Age freezing” refers to the suspension of the child’s age calculation from the date the I-526E is filed; the age stops accruing and only resumes natural growth after the petition is approved. “Age locking” is the critical point that determines the child’s final age eligibility, and differs by case type: For applicants applying for an immigrant visa from outside the United States, the age is locked on the date the visa fee is paid; For applicants adjusting status in the U.S. via Form I-485, the age is locked on the date the I-485 application is accepted by USCIS. Once the age is locked, it becomes fixed and will not increase due to subsequent processing delays. 

Under the Child Status Protection Act (CSPA), when determining whether a child has aged out, the processing time of the I-526E petition may be subtracted. The formula is: Actual Age – I-526E Processing Time = CSPA Age. If the CSPA Age is under 21, the child retains eligibility as a derivative beneficiary; if 21 or over, the child is considered “aged out” and cannot proceed with the principal applicant’s EB-5 petition. In such cases, the principal may file a separate petition for the child under the F-2B category after obtaining conditional permanent residence. 

Under the previous rule, in addition to the CSPA subtraction, applicants could also use Table B (Dates for Filing) to protect the child’s derivative status. Even if Table A (Final Action Dates) was not current, as long as Table B was open, the child could lock age by filing Form I-485, thereby effectively reducing the risk of aging out.

However, on August 8, 2025, USCIS announced a major adjustment: effective August 15, 2025, all new adjustment of status applications must use Table A (Final Action Dates)—not Table B—to determine whether a child has aged out. The use of Table B for age locking is no longer permitted. Cases that were filed before this effective date will continue to be governed by the previous rule. Under the new rule, a visa number is considered available only when the applicant’s priority date is earlier than or equal to the cutoff date in Table A. Furthermore, USCIS requires applicants to take substantive action (such as filing the I-485 or paying NVC fees) within one year of visa availability; failure to do so will result in loss of CSPA protection, with exceptions only under exceptional circumstances.

This adjustment has a clear impact on the “concurrent filing” practice in EB-5. When Table B is open, applicants may still file Form I-485 while in the United States and choose to remain in the U.S. to await processing, thereby obtaining employment authorization (EAD) and advance parole (AP). Applicants may also choose either consular processing or I-485 adjustment of status. However, whether a child can lock age now depends solely on Table A. That is, under the previous rule, concurrent filing provided both status benefits and early age locking for children; under the new rule, concurrent filing still exists, but it no longer serves as a mechanism for early age protection for children.