The EB-5 Immigrant Investor Program remains a powerful pathway to U.S. permanent residency while supporting economic growth and job creation. 2026 is a pivotal year: grandfathering protections under the Reform and Integrity Act (RIA) remain available, fee adjustments are pending, and USCIS adjudication trends continue to evolve. Investors who act strategically—by filing early, documenting comprehensively, and monitoring compliance—may be best positioned for success.

I-526 Filing (Initial Petition & Investment)

1. Leverage grandfathering before program changes
Investors may wish to file their I-526 forms before Sep. 30, 2026, to lock in current investment thresholds and TEA benefits under the RIA before any new regulations or fee increases take effect.

2. Act before potential price hikes
Following a late 2025 court-ordered fee reduction, filing now allows investors to take advantage of lower EB-5 filing fees.

3. File early to avoid retrogression delays
Visa backlogs in set-aside categories (TEA, rural, and infrastructure) remain a concern, particularly for applicants from China and India. Early filing may secure investors’ priority dates and position them ahead of future cut-off dates.

4. Submit a well-documented petition
Investors may wish to work with counsel to organize timelines, source-of-funds evidence, business registrations, and tax documentation. Clear documentation may reduce the likelihood of receiving Requests for Evidence (RFEs).

5. Provide comprehensive tax filings
Include seven years of U.S. and foreign tax returns—or official proof of no tax obligations—to meet regulatory requirements.

6. Include complete business registration records
Corporate filings, licenses, shareholder agreements, and proof of good standing for all entities generating EB-5 funds are essential.

7. Reconsider older source-of-funds documentation
Funds originating many years ago are harder to verify and may contain gaps. Given increased USCIS scrutiny, consider providing more recent source-of-funds evidence.

8. Exercise caution with loans
Loans from the New Commercial Enterprise or any entity associated with the Regional Center may trigger USCIS scrutiny. Investors may wish to discuss any such loans with counsel in advance.

9. Avoid installment funding
USCIS currently disfavors phased contributions. Full upfront funding might reduce the likelihood of RFEs or denials, particularly when seeking grandfathering protection.

10. Document all capital transfers thoroughly
Investors should consider maintaining wire confirmations, bank statements, and reconciliations in order to ensure traceable, auditable transfers.

11. Address Communist Party membership proactively
Discuss any membership in the past five years with counsel and consider selecting the optimal primary applicant to avoid eligibility issues.

12. Perform rigorous due diligence on Regional Centers and projects
Verify USCIS approval, financial stability, construction timelines, and job creation projections. Investors may wish to work with a U.S.-licensed broker/dealer or business advisor.

Adjustment of Status (AOS) / Consular Processing

13. Consider concurrent filing strategically
Concurrent I-526 and AOS filing may provide work authorization and travel flexibility for applicants in the United States on valid nonimmigrant status. Confirm eligibility and timing with counsel.

14. Maintain underlying visa status
Fallback status prevents unlawful presence if an applicant’s EB-5 petition is denied and may allow alternative green card options or appeals to be filed.

15. Track visa bulletin movement and country-specific limits
Retrogression may occur, particularly for China and India. Monitor the visa bulletin monthly to ensure timely AOS or consular filing.

16. Keep documentation organized for consular interviews
Investors should have their I-526 approval, tax filings, investment records, and corporate documentation ready for review.

17. Expect potential delays due to security checks
Background checks and name matching may slow processing, so investors may wish to build extra time into their planning.

18. Disclose status violations, unauthorized work, or criminal issues proactively
Applicants may wish to discuss any potential issues with counsel early to prevent denials or complications.

19. Apply for a Reentry Permit for extended travel
U.S. permanent residents must maintain at least 180 days of residence annually. For planned absences longer than 180 days, a Reentry Permit allows up to two years abroad without risking green card status.

20. Renew EAD and AP documents proactively
For AOS applicants, investors may wish to file extensions at the 180-day mark to avoid work or travel interruptions, as automatic extensions have been discontinued.

I-829 / Removal of Conditions

21. Prepare early for I-829 filing
Maintain communication with the Regional Center to track project completion, job creation, and capital investment from I-526 through I-829. Alert counsel to any delays or issues promptly.

22. Align I-829 filings with original investment documentation
Cross-check I-829 submissions against I-526 to avoid inconsistencies that might trigger RFEs.

23. Consider mandamus for excessive I-829 delays
Mandamus litigation might be an effective tool to compel USCIS action when processing times exceed norms.

24. Plan travel around the I-829 receipt notice
Filing an I-829 extends conditional permanent resident status and provides up to 48 months of work and travel authorization. Investors may wish to avoid international travel until the receipt notice is issued, as it is required for reentry.

Naturalization Planning

25. Track residency requirements for U.S. citizenship
EB-5 investors may apply for naturalization five years after receiving the conditional green card. Maintain detailed records of physical presence and residence after conditional green card approval.

26. Prepare early for the naturalization interview and civics/English test
USCIS has increased the number of questions and expectations for passing. Begin study and preparation well in advance of eligibility.

2026 might be a strategic year for EB-5 investors. With grandfathering protections still available, potential fee increases on the horizon, and heightened scrutiny on compliance, proactive planning is essential. Investors who file early, maintain comprehensive and organized records, monitor Regional Center and project compliance, and address potential issues with counsel in advance may be best positioned for success. Approaching each stage of the EB-5 lifecycle—from I-526 filing, through AOS or consular processing, I-829 removal of conditions, and eventual naturalization—with diligence and foresight may help investors navigate evolving regulations and optimize their path to U.S. residency and citizenship.

Tags: EB-5, EB-5 Program, immigration, USCIS
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Photo of Kate Kalmykov Kate Kalmykov

Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of

…

Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of all sizes across a variety of industries in understanding and complying with the immigration laws relating to the hiring and retention of foreign talent. Specifically, her practice focuses on supporting clients and advising them on temporary and permanent residency immigration options for multi-national executive, business, scientific, and information technology personnel. In addition, her practice provides support to companies in the global transfer of personnel. Known by her clients for her out-of-the-box thinking, responsiveness and hands-on approach, Kate is often called upon to assist in developing immigration options and strategies in the most unique circumstances and to respond to complex Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs) or to appeal denied cases. Likewise, she has also been instrumental in developing employer compliance programs for DOL related filings including H-1Bs and PERMs, as well as for I-9 employment eligibility verification. To this end, she develops and conducts nationwide I-9 compliance trainings and policy manuals for human resources personnel, advises on best practices for E-Verify employers, provides guidance on avoiding immigration-related unfair employment practices claims and has defended and minimized penalties in immigration-related government audits. Kate regularly works with professionals from the firm’s labor, employment, tax and benefits groups, to provide strategic planning on immigration issues within a cross-border framework.

Kate also has deep experience working on all aspects of the EB-5 immigrant investor program. Kate has worked with real estate developers, private equity funds, and other organizations on applications to designate new EB-5 Regional Centers, applications for pre-approval of EB-5 projects; having projects adopted by existing EB-5 Regional Centers; structuring projects to be EB-5 compliant, the sale of existing EB-5 Regional Centers, preparing template I-526 petitions and advice on structuring direct EB-5 projects. Pursuant to the requirements introduced under the EB-5 Reform and Integrity Act, Kate works with EB-5 Regional Centers, EB-5 Projects, Overseas Migration Agents and Broker/ Dealers to develop internal programs for ongoing compliance and to prepare USCIS I-956, I-956F, I-956,G, I-956H, I-956K submissions. Kate has represented thousands of investors in obtaining their green cards through EB-5 regional center projects, as well as direct EB-5 investment opportunities. She also represented and structured the largest EB-5 offering in the Program’s history and has over the course of her career structured over $12 billion in EB-5 deals.

Within the field of immigration law, Kate is a well-known speaker and author. She is often called upon by various media outlets to comment on topics of business immigration law including the Real Deal, the Wall Street Journal, and Law360. Kate has appeared on numerous TV programs related to immigration law including CNN, the Stoler Report, Vietface TV, and China Business Network. Kate is also a prolific writer on the topic of immigration and has been published in immigration practice handbooks for the American Bar Association, American Immigration Lawyers Association, ILW, and in news periodicals that include the New Jersey Lawyer, the New York Law Journal, the New Jersey Law Journal, USA Today, GlobeSt.com, and the Commercial Observer. At the request of the American Bar Association, Kate co-authored the book “What Every Lawyer Needs to Know About Immigration Law,” a guide for non-lawyers on immigration law practice. She has sat on numerous bar association related committees including the American Immigration Lawyers Association EB-5 Practice Committee, the New Jersey Business Immigration Coalition and has chaired the American Bar Association’s, Committee on Immigration and Naturalization, Section of Administrative Law since 2011. Kate has been recognized in various legal surveys including Chambers Global, New York Super Lawyers, the New Jersey Law Journal who ranked as her as a “New Leader of the Bar,” (formerly 40 under 40) in 2012, NJBIZ “Best 50 Women in Business,” 2019, National Law Review, “Go-To Thought Leader: Immigration Law,” 2022, and Lawdragon 500, Leading U.S. Corporate Employment Lawyers, 2020-2022.

Kate is devoted to pro bono matters and has spent extensive time helping clients fleeing conflict and persecution with asylum applications, applying for and obtaining Temporary Protected Status and Humanitarian Parole.

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