DHS publishes long-awaited EB-5 rules: $1.4M threshold for “high employment,” 2-year capital-at-risk requirement, and sanctions regime

The U.S. Department of Homeland Security (DHS) has released the highly anticipated Notice of Proposed Rulemaking (NPRM) to implement the EB-5 Reform and Integrity Act of 2022 (RIA). The 358-page document addresses nearly every core component of the EB-5 Immigrant Investor program—from investment requirements to oversight rules and accountability.

The public comment period will run for 60 days, until August 31, 2026.

The publication comes more than four years after the RIA took effect and roughly seven months after U.S. Citizenship and Immigration Services (USCIS) told a federal court it expects the document by November 2025.

Many provisions largely codify what Congress decided in 2022. However, certain elements—including the new $1.4 million investment threshold and a tiered sanctions framework—were developed by DHS itself.

According to a representative of the regional center Golden Gate Global in San Francisco, Kristina Tabacco, the NPRM was “long overdue” and “a welcome step toward greater clarity.” She notes that while the changes may not look “revolutionary,” once adopted they could affect the type of projects regional centers propose and how applicants fund EB-5 investments.

What changes for investors

The headline item in DHS’s proposal is a new minimum investment amount of $1,400,000 for projects located in so-called “high employment areas” (high employment area). In DHS’s view, this refers to a territory within a metropolitan statistical area that is not classified as a TEA (targeted employment area—rural areas or areas with high unemployment) and that demonstrates an unemployment rate substantially below the national average.

For all other situations, the amounts remain unchanged: $800,000 for TEA investments (rural areas or high-unemployment areas) and infrastructure-type projects, and $1,050,000 for the standard amount for all other locations.

Importantly, these figures apply from the time the RIA took effect in March 2022. In practice, the NPRM effectively “reprints” them into the regulations, even though older values—$500,000 and $1,000,000—still appear in current rules. As a result, the proposal text may look like an “increase” when compared with outdated regulatory language, rather than reflecting what investors have actually been paying for years.

Managing Partner Mona Shah & Associates Global Mona Shah views much of the “codification” as largely procedural: DHS took more than four years to lock into regulations numbers that Congress had already set. In her assessment, the real-world impact on the market overall is limited because investors are already paying these amounts.

Shah also does not expect strong demand for the $1.4 million threshold. Based on data DHS cites in approvals, 99.9% of investors through regional centers selected TEA and the reduced investment amount. Therefore, only a small number of projects are likely to realistically qualify for the new level.

In addition, all investment amounts will be indexed for inflation starting January 1, 2027, and then every five years thereafter. That means the “cost to enter” may rise for those filing later.

Capital-at-risk rule: two years after funds are provided

One provision likely to draw the most attention from the market confirms what many have been waiting to see: under the RIA, capital must remain at risk for at least two years from the date the funds are provided to a job-creating commercial entity. Previously, a contested question was whether the capital had to remain at risk throughout the entirety of the investor’s conditional resident period.

This question split the industry. In 2024, the Invest in the USA (IIUSA) association filed a lawsuit against USCIS seeking a full rulemaking process. Last year, a federal court sided with the agency and its two-year approach.

Shah emphasizes that the “two-year capital-at-risk period” will remain a discussion topic at conferences for at least another year. She views the outcome as a win for investors: after the two-year period ends and job-creation requirements are met, investors can recover their capital even if their visa process is “stuck” in the queue.

Under the earlier logic, regional centers often required redeployment of returned funds into new projects selected without the investor’s choice. As Shah explains, this effectively meant holding capital “until the visa backlog is resolved.” DHS’s proposal states that for filings after the RIA, the redeploy requirement should become rare.

DHS also frames the goal as reducing investor burden: the rule should lessen the need to keep the investment tied up for long periods due to factors beyond the investor’s control—or beyond the new commercial entity’s control—such as visa delays. Tabacco sees this as a clear signal in favor of applicants from India and China, who have historically faced the longest queues and the greatest risk of redeployment.

Investor protection when a regional center faces issues

The proposed rules also expand on the RIA’s provisions protecting “bona fide investors” when a regional center shuts down or is subject to debarment not due to the applicant’s actions.

For affected investors, DHS sets a 180-day window to reconnect to an eligible sponsor while preserving priority dates. If an investor has already completed the two-year period and met job-creation requirements, no additional action is required, as Shah notes.

In her view, these points are more important than they may seem. Under the older approach, a regional center’s termination could potentially drag down all of its investors—and Shah considers that an unfair punishment of “the wrong people.”

Tabacco also highlighted digital assets. The document confirms USCIS practice: the agency accepts cryptocurrency as a lawful source of funds. At the same time, DHS does not yet establish specific requirements for crypto scenarios within the regulations, but it requests public comments on whether such rules should be added.

Tabacco views this approach positively. Previously, the treatment of funds received in digital form remained less transparent.

What changes for regional centers

DHS builds into the rules a tiered accountability system for regional centers’ violations. Consequences can range from an official DHS notice to financial penalties of up to 10% of total capital deployed in the relevant enterprises, and even to suspension, termination of a regional center’s status, and debarment of organizations or individuals from participating in the program.

The proposal also includes ideas for fixed penalties for common violations. For example, it cites $10,000 for late filing of an annual report. DHS further indicates that failure to pay a penalty would be treated as a separate violation, which could also trigger sanctions.

In addition, the NPRM implements RIA requirements regarding audits and fund administration, and for the first time introduces mandatory registration for direct and third-party promoters that market EB-5 offerings abroad.

Shah believes these changes are “a congressional hand,” not DHS’s. She adds that those claiming surprises “just haven’t been paying attention since 2022.”

Still, the cost question remains open. DHS estimates annual compliance costs at about $47,000 per regional center. Shah is skeptical of that estimate: the document assumes compliance burdens are evenly distributed across centers of different sizes and does not account for expenses DHS itself acknowledges cannot be precisely quantified (such as attorney time and costs that increase as issues arise).

Based on her arguments, the real cost is comfortably higher. Accordingly, Shah says the industry should respond to DHS’s request on this point with real numbers.

DHS notes that at least 87% of regional centers are small organizations. Shah cautions that fixed costs typically hit small centers more sharply—especially those running a single project—rather than large sponsors with in-house compliance teams.

That said, Shah expects the overall impact to be less than the document’s volume might suggest. Many requirements the industry is already applying since 2022, and those who could not comply largely exited the market. Moreover, courts (including the U.S. Court of Appeals for the 11th Circuit last year) have shown limited willingness to accept arguments for “grandfathering benefits” prior to the RIA.

What happens next

DHS will accept written comments until August 31, 2026, then review them and publish the final rule. The agency may revise the proposal based on the submissions it receives.

Tabacco expects the industry to respond actively to the discussion around the high employment area concept, and especially to the investment amount question.

At the same time, the rulemaking timeline overlaps with two dates that already shape EB-5 planning: September 30, 2026, which ends the RIA’s “grandfathering” window, and January 1, 2027, when investment amounts will be indexed for inflation.

In 2025, filing volumes reached record highs, and Shah expects that the approach of both cutoffs will further compress demand.

“Reasonable people won’t wait to file,” she predicts. In her view, filings will surge first, followed by a quieter period—similar to what happened in 2019, with a lull in 2020.

The authorization period for regional centers runs until September 30, 2027, and any extension will depend on Congressional voting.

If you’re exploring investment-based residence/citizenship options in the US, it’s crucial to model in advance how new regulations may change your budget and deal structure. In the latest EB-5 NPRM, DHS outlines major parameters—especially the $1.4M investment threshold, capital lock-up requirements, and the sanctions framework. To avoid making decisions “blind,” build your plan around the current wording and timelines—talk to the experts at Digital Nomad.

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