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On Sept. 6, 2025, the U.S. Department of State announced a policy change requiring some nonimmigrant visa (NIV) applicants to apply for visas in their country of nationality or legal residence. While this development does not substantially alter how EB-5 immigrant visas are processed – since those are already handled in an applicant’s country of citizenship or applicant’s adjustment of status in the United States – the change carries important implications for EB-5 investors who also hold or rely on temporary nonimmigrant statuses, such as E-2 treaty investor or L-1 intracompany transferee visas. For more information on the implication to employee and employers, please refer to a previous GT blog post.

This change is particularly important for EB-5 applicants who maintain an underlying nonimmigrant visa while their EB-5 petition or adjustment of status (AOS) is pending.

  • Renewals and travel: E-2, L-1, or other nonimmigrant visa holders will no longer have the flexibility to apply for renewals in third countries with shorter wait times. They must now apply at their home or residence consulate, where delays and backlogs may be significant.
  • Advance Parole (AP) considerations: Some EB-5 applicants may rely on AP for international travel during the AOS process. While AP provided convenience, it carries the risk that if the EB-5 petition or AOS is denied, the applicant will have lost their underlying NIV status, leaving them without lawful options to remain in the United States.
  • Increased planning needs: The inability to “forum shop” for faster appointments means longer lead times and more careful coordination may be required for business and personal travel.

Practical Considerations for EB-5 Stakeholders

  • Plan visa renewals early: Applicants should anticipate longer wait times at home-country consulates and consider securing appointments as far in advance as possible
  • Maintain back-up status: Where feasible, applicants may wish to preserve underlying nonimmigrant status even if AP is available.
  • Evaluate risk tolerance: Applicants should consider the trade-offs between using AP and maintaining NIV status during the prudency of an EB-5 petition.
  • Coordinate with counsel: Given the higher stakes, EB-5 investors should work with immigration attorneys to map out renewal and travel strategies.

Bottom Line

For EB-5 immigrant visa applicants, the new policy brings little direct change. But for those who hold E-2, L-1, or other nonimmigrant statuses while awaiting EB-5 adjudication, the rule may limit flexibility and increase the need for advance planning. Carefully weighing the risks of AP versus NIV renewals and building in time for consular delays might help EB-5 investors  safeguard their status and investment journey.

On Sept. 16, 2025, the U.S. Department of State (DOS) officially announced that all available immigrant visas in the Employment-Based Fifth Preference (EB-5) unreserved category have been issued for Fiscal Year (FY) 2025. The unreserved category does not include the set-aside visa categories enumerated under the EB-5 Reform and Integrity Act of 2022 (RIA), including the visas for high unemployment areas, rural areas, and infrastructure projects (the reserved categories) where the EB-5 investor filed the I-526 or I-526E Petition after March 2022.

The unreserved visas are capped annually under the Immigration and Nationality Act (INA). Specifically, INA 203(b)(5) allocates 7.1% of the worldwide employment-based visa limit to EB-5 visas. Of this, 68% is designated for unreserved categories, which include:

  • C5 (Direct Investment)
  • T5 (Targeted Employment Area)
  • I5 (Regional Center)
  • R5 (Rural Area)
  • RU and NU (Other subcategories)

Additionally, the RIA allows for unused reserved EB-5 visas from FY 2023 to be reallocated to the unreserved pool for FY 2025. These reallocated visas also have been included in the total count and the annual limit that has been reached includes these unused reserved EB-5 visas.

Impact on Investors

U.S. embassies and consulates will no longer issue EB-5 unreserved visas for the remainder of FY 2025, which ends on Sept. 30, 2025. This pause affects EB-5 investors in the unreserved EB-5 category who have not yet received their visas. However, the annual visa limits will reset with the start of FY 2026 on Oct. 1, 2025, and U.S. embassies and consulates will resume issuing immigrant visas in the EB-5 unreserved categories to qualified investors. For those investors who have been scheduled for an immigrant visa interview between Sept. 16 and Sept. 30, 2025, EB-5 investors should be prepared to attend the interview unless they receive a cancellation notice from the U.S. embassy or consulate.

For more detailed information, please refer to the DOS alert.

GT’s Immigration and EB-5 attorneys Kate Kalmykov and Jennifer Hermansky are on the move. We look forward to seeing clients and partners in our travels.

Kate will be in the following locations throughout the fall:

  • New York, NY | Sept. 9
  • Orlando, FL | Sept. 10-11
  • Houston, TX | Sept. 25-26
  • Monaco | Sept. 26-Oct. 2
  • Miami, FL | Nov. 5-6
  • Ho Chi Minh City, Vietnam | Nov. 21-Dec. 1
  • Taipei, Taiwan | Dec. 1-4
  • South Florida | Dec. 19-Jan. 4

Meet Jennifer in:

  • Dubai | Sept. 22-27
  • Istanbul | Sept. 28-Oct. 3

Please click here to find a time to connect with our attorneys.

We look forward to seeing clients and partners in our travels.

Join AILA (American Immigration Lawyers Association) for their EB-5 Office Hours—an open forum where experienced practitioners answer EB-5 questions in real time.

When: Sept. 17, 2pm ET

What to Bring: Questions, concerns, observations

Who: Join EB-5 Committee Chair and Greenberg Traurig Shareholder Jennifer Hermansky, and committee members Edward Ramos, Christian Triantaphyllis, and Samuel Newbold.

Click here to register.

Note that this call is for AILA members only. Please register with the name and email associated with your AILA membership

On July 29, 2025, the U.S. District Court for the District of Columbia declined to intervene in the ongoing dispute over the EB-5 investment sustainment period, leaving current U.S. Citizenship and Immigration Services (USCIS) guidance in effect and confirming that formal regulations clarifying the EB-5 Reform and Integrity Act (RIA)’s requirements are expected to be published for public comment by November 2025.

Background

On Oct. 11, 2023, USCIS released FAQs on the capital investment sustainment period under the EB-5 Reform and Integrity Act of 2022 (RIA). The text of the RIA states that a qualifying investment for EB-5 “is expected to remain invested for not less than two years.” In preparing its FAQs, USCIS interpreted this language in the RIA to mean that EB-5 investments made after the passage of the RIA in March 2022 only need to be “expected to remain invested for not less than two years” starting from the date the investment is made and fully placed at risk in the EB-5 project, and that the old requirement that investors must keep their investment during the entire two-year conditional permanent residency period (which may be much longer than the two-year period after the funds reach the EB-5 project) no longer applies.

The FAQs also state that investors who made an investment and filed Form I-526 prior to the passage of the RIA must continue to sustain the investment until the end of conditional residence. This created two sets of “sustainment periods” governing investors who filed petitions before and after the passage of the RIA.

Invest In the USA (IIUSA), the trade association of EB-5 regional centers, filed a lawsuit against USCIS on March 29, 2024, arguing that USCIS failed to comply with the federal Administrative Procedures Act (APA) by not providing adequate public notice-and-comment rulemaking before implementing this guidance, which has significant implications for EB-5 investors. IIUSA urged the agency to issue a formal regulation through the APA to establish a five-year sustainment period, which they argued is more reasonable to the stakeholders’ reliance interests and more transparent to the investors.

The Court’s Ruling

On July 29, 2025, the U.S. District Court for the District of Columbia issued an order denying IIUSA’s motion for summary judgment and the government’s motion to dismiss without prejudice. The court declined to rule on the merits of the interpretation on the sustainment period guidance, finding the challenge to be premature, as no final rule has been issued by USCIS. USCIS has not yet published its Notice of Proposed Rulemaking (NPRM) under the RIA and expects to publish a final rule in November 2025. The court emphasized that there is no evidence of delay or urgency requiring judicial intervention at this time, despite the fact that more than three years have passed since the RIA’s enactment. Both parties are ordered to provide a joint status report in 90 days and every 60 days thereafter.

What this Means for Investors

The court declined to decide itself what the sustainment period should be, and it also declined to order USCIS to publish its regulations “faster” as was urged by IIUSA. USCIS stated multiple times in joint status filings that it was working to publish its formal regulations for the RIA by November 2025. Once published, EB-5 stakeholders will receive an opportunity to review the new regulations and provide comment to USCIS. Moreover, it is expected that the regulations proposed by USCIS will contain guidance not just on the sustainment period, but on full implementation of the RIA, including other areas like the good faith investor protections found in Subsection M of the RIA. These regulations are intended to help regional centers and EB-5 investors and projects understand how USCIS will decide applications under the RIA.

Grandfathering Provisions and Investor Protection

The RIA’s grandfathering provision exempts certain individuals or entities from new or changed requirements based on their prior status or actions. Specifically, investors who file their I-526E petitions prior to Sept. 30, 2026, will be considered “grandfathered” under the RIA; even if Congress does not extend the EB-5 program beyond its current expiration on Sept. 30, 2027, grandfathered investors can continue to pursue their immigration processes. The upcoming regulations from USCIS may clarify this provision for investors.

Conclusion

As confirmed in the July 29 court order, USCIS expects to publish an NPRM in November 2025. The NPRM will be followed by a notice-and-comment period, which will eventually be followed by a final rule. Until then, current USCIS guidance should be treated as the controlling interpretation. EB-5 stakeholders should consider preparing for formal regulatory changes and remaining engaged in the process, particularly if a notice-and-comment window is made available.

The August 2025 Visa Bulletin may bring welcome news for EB-5 investors from China and India. After months of minimal advancement, final action dates (Chart A in the bulletin) for the unreserved EB-5 category have moved forward, unlocking visa availability during the final two months of the fiscal year 2025.

As reported in the August 2025 Visa Bulletin, the Department of State (DOS) has advanced the final action dates for China EB-5 unreserved to Dec. 8, 2015, and for India EB-5 unreserved to Nov. 15, 2019. The visa bulletin also says: “[rest of world] EB-5 number use has not materialized to the degree that was expected.” Since the rest of the world (ROW) demand remained low, visas were underutilized in the EB-5 unreserved category, potentially benefiting countries like China and India that are ready to absorb the additional unreserved EB-5 visas. As a result, the DOS is now reallocating these visas to high-demand countries like mainland China and India.

The EB-5 program continues to respond to global demand patterns. With ROW demand down, extra EB-5 visas are now flowing to China and India – offering an opportunity for investors from these countries to move forward in the queue.

Countries Subject to the June 2025 Travel Ban and Key Exemptions

On June 4, 2025, President Trump issued the Presidential Proclamation: Restricting the Entry of Foreign Nationals to Protect the United States From Foreign Terrorists and Other National Security and Public Safety Threats. This proclamation introduces travel restrictions for both immigrants and nonimmigrants from certain countries. According to the proclamation, the affected countries were designated based on each country’s screening and vetting capabilities, information sharing policies, the presence of terrorist organizations within their territories, visa overstay rates, cooperation in accepting the return of removable nationals, and potential security threats in the United States. The travel ban is based on country of citizenship, not country of birth.

The proclamation fully restricts and limits the entry of citizens of the following 12 countries: Afghanistan, Burma, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen. These restrictions apply to both immigrants and nonimmigrants. The proclamation also partially restricts and limits the entry of nationals of seven additional countries: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela. For these seven countries, certain visa categories, including B-1 and B-2 (visitors), F (students), M (vocational students), and J (exchange visitors) visas are suspended, and the validity of other types of visas may be reduced. 

The travel restrictions apply to foreign nationals who are outside the United States as of June 4, 2025, and who do not have a valid visa as of that date. As a result, applying for a new visa in these countries for travel to the United States may not be possible while the travel ban remains in effect. The proclamation does not apply to (1) U.S. permanent residents, (2) dual nationals traveling on a passport issued by a non-restricted country, (3) individuals traveling on A, G or NATO visas, (4) certain athletes, (5) immediate relatives (spouses and children) of U.S. citizens, (6) adoptees, (7) Afghan special immigrants, (8) special immigrant visas for U.S. government employees, and (9) immigrant visas for ethnic and religious minorities facing persecution in Iran. Exceptions may also be considered on a case-by-case basis if the Secretary of State determines that an individual’s entry would serve a U.S. national interest. However, such exceptions may be difficult to obtain.

Implications of the June 2025 Travel Ban for EB-5 Investors and Immigration Processing

EB-5 visas are not included among the “exceptions” outlined in the proclamation. Accordingly, EB-5 investors who are nationals of the 12 fully restricted countries and who had not been issued an EB-5 immigrant visa at the U.S. consulate as of June 4, 2025, are subject to the restrictions on visa issuance. EB-5 investors who hold a second nationality from a country not subject to the full restrictions may remain eligible to obtain an EB-5 visa using the passport that is not restricted. Individuals who received an EB-5 visa prior to June 4, 2025, may still be able to travel to the United States using the valid immigrant visa.

The proclamation does not address the approval of Form I-526 or I-526E Petitions by USCIS. Processing of these petitions, along with I-829 Petitions, is expected to continue. Additionally, since the proclamation applies only to individuals outside the United States, the processing and approval of Form I-485 for adjustment of status by USCIS may also continue for nationals of the affected countries. Individuals with a pending I-485 application and a valid advance parole travel document may still use the advance parole for travel; the proclamation does not revoke approved advance parole documents or visas. However, international travel may carry additional risks at this time, as there may be confusion among airline carriers and at U.S. points of entry. Individuals are encouraged to consult with an experienced immigration attorney before departing the United States to assess potential travel risks while the travel ban remains in effect.

For EB-5 investors with a spouse or other immediate family member who is not subject to the travel ban (or vice versa), future guidance or clarification may be issued regarding possible exceptions to preserve family unity.

The Trump Administration has recently published many new Executive Orders. Additionally, the Administration is considering enacting new travel restrictions for citizens of many countries. Join Immigration and Compliance Practice attorneys Jennifer Hermansky and Kirsten Crovello for a discussion on the impact of the EOs and any potential travel restrictions and bans on current and prospective EB-5 investors.

Click here to register.