There is no way around it, 2026 is set to be an impactful year for EB-5. From a hard deadline to potential retrogression, the coming year will likely have a lasting impact on the program.
What should prospective investors be aware of in 2026?
The Year of the Grandfather Clause
One of the most important legal safeguards for EB-5 investors in 2026 continues to be the grandfather clause contained in the EB-5 Reform and Integrity Act of 2022 (RIA). This provision ensures that petitions filed on or before September 30, 2026, will be adjudicated even if the Regional Center Program later lapses or is not reauthorized by Congress.
In practical terms, this means that investors who file an I-526E petition before the deadline will have their cases processed under the protection of current law, protecting them from any future lapses or changes to the program. The EB-5 program has Congressional authorization through September 30, 2027.
For prospective EB-5 investors, filing before the grandfathering cutoff is more than a timing strategy, it is a hedge against future disruptions that could otherwise throw petitions into limbo. From a practical standpoint, industry experts expect a high volume of filings leading into the deadline so not only will investors filing after September 30, 2026, not be protected by future changes, but they also might face a backlog with regard to obtaining their green card.
Retrogression Risks in Set-Aside Categories
Heading into 2025, many in the industry predicted that retrogression in the set-aside categories could occur. While that scenario never manifested, the same thoughts loom large in 2026. The RIA introduced set-aside visa categories, designating portions of the annual EB-5 quota (20% for rural projects, 10% for high-unemployment areas (HEUAs), and 2% for infrastructure projects) intended to create faster lanes for investors in qualifying areas.
Through 2025 and into early 2026, these reserved categories have remained current for all countries, meaning investors in these lanes have been able to use visas without waiting for cutoff dates to advance in the Visa Bulletin. However, as filings and approvals accelerate, particularly in rural and high-unemployment TEA projects, the supply of reserved visas is not indefinite. Once annual set-aside allocations are exhausted, the Department of State may be forced to impose cutoff dates and retrogression in these categories just as has happened in the unreserved EB-5 category for India and China.
Some analysts have pointed to the sheer volume of petitions and the inconsistent and sometimes slow pace at which USCIS is adjudicating I-526(E) petitions as conditions that could bring set-aside retrogression into view in 2026, especially if demand ramps up prior to the grandfather clause cutoff date of September 30, 2026.
Visa Bulletin Movement for India in the Unreserved Category
For investors born in India, 2025 was marked by significant volatility in the EB-5 Unreserved final action dates, including periods of both retrogression and forward movement. Earlier in fiscal year 2025, India’s unreserved cutoff dates were pushed back by multiple years due to high visa usage and per-country limits, delaying final action for many applicants.
However, recent Visa Bulletins, including the one issued for January 2026, have showed marked advancements for pre-RIA Indian applicants in the unreserved category, with priority dates moving forward substantially. This renewed progression suggests that, at least for priority dates from before the RIA enactment, India could continue to see positive movement in the unreserved EB-5 category in early 2026 as additional visas become available.
If the unreserved category were to clear for Indian investors, it could help alleviate a potential backlog for Indian investors in the set-aside categories.
EB-5 as a Reliable Alternative Amid Broader Immigration Uncertainty
Against the backdrop of persistent uncertainty in other U.S. immigration pathways, EB-5 continues to hold a unique appeal. Programs such as H-1B and the Diversity Visa Lottery face ongoing unpredictability. For H-1B, caps are reached annually within days, and policy proposals continue to shift eligibility criteria, fees, and selection mechanisms. In December, the Diversity Visa Lottery program was suspended. While the suspension has not canceled the program, its future remains clouded in uncertainty.
In contrast, EB-5 offers a route that, while requiring a significant investment, provides a foreign national’s own priority date, independent of employer sponsorship or annual lottery luck. Combined with the grandfathering protections of the RIA, concurrent filing advantages for those in the U.S., and the possibility of somewhat quick processing in set-aside categories while they remain current, EB-5 may well be perceived in 2026 as a more predictable and structurally supported path to permanent residence compared with other immigration streams.
The above article is intended for educational purposes only. Anyone with a specific issue relating to EB-5 should consult with an experienced immigration attorney.
