Understanding EB-5 Visa Annual Limits: Navigating Country Caps and USCIS Regulations

The United States Citizenship and Immigration Services (USCIS) significantly raised filing fees for the I-526E, Immigrant Petition by Regional Center Investor, in April 2024. This is a crucial, first step in the EB-5 Immigrant Investor process. This adjustment in fees has near-term implications for prospective EB-5 investors. This article delves into the details of the fee increase and its potential impact on individuals seeking U.S. permanent residency through the EB-5 program.

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What is an I-526E?

The EB-5 Immigrant Investor Program offers a pathway for foreign investors to obtain a U.S. green card by making a qualifying investment in a new commercial enterprise that generates employment for U.S. workers. TheI-526E petition is a vital component of the application process, serving as the initial step in demonstrating the investor’s commitment to the program.

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Details of the I-526E Fee Increase

According to the USCIS website (Frequently Asked Questions on the USCIS Fee Rule | USCIS), the I-526E fee will increase from $3,675 to $11,160, a 204% increase, on April 1, 2024. This adjustment is part of the USCIS’s broader efforts to cover the escalating costs associated with processing and adjudicating immigration petitions. The fee increase applies to all new I-526E filings.   EB-5stakeholders are still waiting for USCIS to conduct a separate fee study required by the new EB-5 law (the EB-5 Reform and Integrity Act of 2022, or the “RIA”). Section 106 of the RIA requires USCIS to perform a fee study about the level of fees needed to adjudicate EB-5 related petitions in a timely manner.  The April 1, 2024 increase in fees is separate from any future increase that may result from this required fee study, so investors should stay informed about potential further increases in the future.

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Impact of the I-526E Fee Increase on EB-5 Investors

• Financial Considerations: The fee hike holds financial implications for EB-5 investors, as the program already demands a substantial investment. The increased filing fee adds an additional financial burden for prospective immigrants considering the EB-5 route. Investors should factor in this change when evaluating the overall cost of participating in the program.
• Decision-Making Process: The elevated filing fees may influence the decision-making process for potential investors.  Individuals who were contemplating EB-5participation may want to accelerate their decision in the hopes of avoiding the higher application fee. Investors will save $7,485 by filing their FormI-526E before April 1, 2024.  
• Pending Applications: Investors with pendingI-526E petitions should be aware of the fee adjustment and consider how it might impact their ongoing applications. Although it appears the new fees will only apply to petitions and applications filed on or after April 1, 2024, it is advisable for applicants to consult with immigration professionals to understand how the fee adjustment may affect their ongoing applications and could impact forms to be filed through their immigration process in the future.
• Financial Planning: The fee increases underscore the importance of meticulous financial planning for prospective EB-5 investors. Understanding the updated fee structure is crucial for making informed decisions about participation in the program and ensuring that all financial requirements are met, including the sourcing of any funds used to pay the administrative costs and fees associated with your investment.
• Consider a Partial Investment: Peachtree’s EB-5 projects are structured to allow EB-5participants to invest just part of the full $800K required investment initially, with the remainder invested over several months.

The USCIS’s decision to raise the I-526E filing fees introduces a new dimension to the already intricate landscape of the EB-5Immigrant Investor program. Prospective investors are advised to closely evaluate the updated fee structure, engage with immigration professionals for tailored advice, and make informed decisions based on their individual financial circumstances. As the EB-5 program remains an attractive avenue for obtaining U.S. permanent residency, investors should stay informed and adapt to changes in order to navigate the evolving landscape successfully.

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Peachtree Group has current offerings that are structured to qualify investors to apply for the EB-5 program.

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To learn more about EB-5 and Peachtree’s EB-5 offerings, fill out our contact form.

About Peachtree Group

Peachtree Group is an investment firm driving growth with a diverse portfolio of commercial real estate assets and other ventures, with a specialty in hospitality. We’ve executed hundreds of investments since inception with a focus on real estate acquisition, development, and lending. Today, we manage billions in equity, augmented by services designed to protect, support, and grow your investment.

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On October 11, 2024 the U.S. Citizenship and Immigration Services, (USCIS), the American federal agency that oversees immigration, issued long-awaited guidance about the investment period (known as the “sustainment period”) required for EB-5, America’s residency by investment program.

The guidance stated that investors may receive back their required $800,000 capital after just two years from investing. While many in the EB-5 world have been waiting for USCIS to clarify the sustainment period requirement, the October 11 USCIS policy leaves open many questions, including whether the guidance itself was issued in accordance with proper procedures required under US law.

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The Official Statute

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The official statute regarding EB-5 was updated with the passage of the “EB-5 Reform and Integrity Act of 2022” (the “RIA)” on March 15, 2022. As with the federal agency administering any official statute, USCIS must write formal regulations under a proscribed process. Only after a formal rulemaking process, which requires a public notice and comment process, do regulations become the rules under which the law is administered.

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While EB-5 program participants have been asking USCIS to issue guidance and regulations, it is not clear that USCIS has the legal authority to change existing rules unless and until it follows the rule making process.  This is especially true in cases where existing regulations can be read as consistent with the new statute, as in the case of the sustainment period.

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The Cause of Confusion

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The cause for this confusion is statutory language in the new law itself.  The law requires that the would-be immigrant’s investment “is expected to remain invested for not less than 2 years.”  The section of the EB-5 law regarding “removal of conditions”, or when the investor has a permanent green card, was edited to eliminate specific wording that the investor “sustain” the investment.  The removal of conditions section, however, allows for an investor to have an extra year, beyond the initial two-year period of conditional residency, to prove job-creation only if they keep their capital invested.

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USCIS Interpretation

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It seems that USCIS interpreted these two provisions to require just two years of active investing.  USCIS went further to require that the initial investment remain in the initial project until sufficient jobs have been created.  However, the new law also provides for “redeployment” if an initial investment is repaid before an investor is qualified to be repaid.

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Remain Invested or Redeployment

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A requirement to redeploy capital is illogical if the initial investment must satisfy the minimum sustainment period and job-creation requirements.  The ability to withdraw capital after just two years seems illogical if the law allows an extra year to prove job-creation only if that capital remains invested for longer.  When the RIA is read in its entirety, the new USCIS guidance does not seem to hold up.

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Investment Timeline Defined

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The question of when the two-year investing timeline starts is also unanswered. The USCIS guidance indicates that the start date is when the full amount of the investment is “made available to the job-creating entity.”

Unanswered questions include:

• Is this when the EB-5 money is spent?
• When the loan is closed, but not yet funded?
• Can the EB-5 funds be deposited and not used by the job-creating entity?
• How does bridge financing affect this calculation?

These are all unanswered questions.

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Structuring EB-5

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In conclusion, EB-5 project sponsors must structure the EB-5 instrument responsibly, and EB-5 investors should not just rush into a deal that promises money back in two years. For now, it seems safest to maintain the EB-5 investment in the initial project for at least two years after the full amount of the EB-5 funds have been transferred to the JCE/borrower. Investors should stay informed of ongoing developments about the sustainment period, as this issue is sure to come up, again, in courts or USCIS policy in the future.  More importantly, no matter what may or may not have changed in the rules, EB-5 investors must evaluate the financial and immigration risks of potential investments thoroughly.

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To learn more about the EB-5 Visa program and Peachtree’s EB-5 offerings, fill out our contact form.

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Each month the US State Department publishes the official Visa Bulletin, which is the source for information on visa availability in the United States. It shows which approved immigrant applicants may move forward to obtain their immigrant visa based on the date the original petition was filed: If your EB-5 petition is approved by USCIS, you go to the Visa Bulletin chart to see if there is a visa currently available for you.

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Update on Cut-off Dates for EB-5 Categories

In the October 2025 Visa Bulletin, all countries remain current, including China, which remains at December 8, 2015, while India advances by fourteen months to February 1, 2021.

Read below for more on how to read the Visa Bulletin.

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Visa Bulletin Explained: How Many Visas Are Available?

There are 140,000 employment-based green cards available each year, with specific limits for each “preference” category. US immigration law also sets limits on the number of green cards available based on the country of origin. No single country of origin can account for more than 7% of the green cards issued across all family-based and employment-based categories.

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Why are Some Countries Called Out?

Although generally not an issue for most countries, this country-of-origin cap can create backlogs for EB-5 investors from China and India. (Generally, there are not enough EB-5 applicants from Mexico or the Philippines to create backlogs for those countries, which are the only other countries subject to the country-of-origin caps.)

Potential EB-5 participants should refer to the Visa Bulletin to understand whether there are visas immediately available for them after their I-526 or I-526E petition is approved.

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The chart for EB-5 from the latest visa bulletin shows the following:

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September 2025: Final Action Dates for Employment-Based Preference Classes (excerpt to show just EB-5)

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What do the Dates in the Boxes Mean?

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This Visa Bulletin shows there is currently a backlog only for investors approved under the “old” EB-5 program, which was in place before the EB-5 Reform and Integrity Act of 2022 (the “RIA”), effective on March 15, 2022.

For Chinese and Indian pre-RIA investors, the dates are January 22, 2014 for Chinese applicants and May 01, 2019 for Indian applicants. Investors from China and India who applied under the old program after the cutoff dates listed (January 22, 2014, for China; May 1, 2019, for India) cannot immediately seek to get their visa and move to the United States. They must wait for the listed date to move forward to their petition’s application date, generally known as their “priority date”.

Note it is only the “Unreserved” preference category in EB-5 that shows a cutoff date. The new reserved preference categories for EB-5 all show as ‘C’ or “Current”, meaning anyone who has an approved EB-5 petition related to the new reserved visas created by the RIA can start the process to immigrate to the US, even those from China and India.

Key Points to Consider

• Country Cap Misconception:
  Conventional EB-5 wisdom is that the country cap is calculated within each preference category, not across all preference categories. That would mean that no one country could have more than 7% of just EB-5 visas in any reserved visa category.
  This is wrong.
  In a US Federal Register announcement dated March 28, 2023, the US Government acknowledged they were calculating country caps incorrectly and outlined how country caps were to be calculated moving forward. Here is an article we have written to explain EB-5 visa country caps, the confusion, and why investors born outside of China and India can confidently choose between either a rural or high unemployment EB-5 project.
• Cutoff Dates May Not Move Month-to-Month:
  The cutoff dates do not move in lockstep with the real-world calendar. Date changes for China and India have occurred several times in the last 18 months. The latest changes were in April and May 2025. These moves reflect the US State Department’s analysis of how many green cards were available for the EB-5 category and how many applicants were ready to apply.
• Visa Bulletin Considers only APPROVED Petitions:
  The Visa Bulletin dates are calculated by the Department of State based on information they have from USCIS about approved petitions. These charts do not show the impact of petitions that may have been filed before now, but are not yet approved.
  The Visa Bulletin is the end of the story. To know how long a would-be immigrant might need to wait, it’s important to understand how many petitions might be in process ahead of them.

‍Visa Bulletin is a Toll Plaza on a Highway.

Think of the Visa Bulletin like a toll plaza on a highway. It lists how long the line is at the toll booth and separates the line for specific countries that have a backlog. However, the Visa Bulletin does not show how many cars are on the highway on their way to the toll plaza. Those are the pending petitions. This information is generally not made public, but there have been efforts by EB-5 industry groups to get this information. We will provide our analysis of this information separately.

Concurrent Filing Can Expedite the Process, but only for those in the United States.

Concurrent filing is a mechanism where EB-5 investors already in the United States can send in some forms at the same time as their first Form I-526E application, instead of waiting until that application is approved. With concurrent filing, investors can fill out and send in both their Form I-485 (Application to Register Permanent Residence or Adjust Status) and their Form I-526E petition at the same time.

Generally, this will allow those investors to:

• Travel in and out of the United States without any other visa
• Legally work in the United States without any separate employment sponsorship or visa
• Receive these benefits while their I-526E petition is pending, NO MATTER HOW MANY PETITIONS MAY HAVE BEEN FILED AHEAD OF THEM.

In our metaphor, this means that it does not matter how many cars are on the highway ahead of you. As long as there is not yet a line at the toll booth, you may apply for these benefits. Essentially, if you’re here, you can stay here.

Have questions about EB-5? Visit our website or fill out our contact form.

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