Every serious EB-5 conversation in 2026 eventually arrives at the same question: what happens to the programme after September 30, 2026? If you are deciding whether to file now or wait for clarity, that question is not academic. It determines whether you act under rules you know or rules that have not been written.
The uncomfortable truth is that nobody has the final answer, and anyone selling certainty about the next reauthorisation is selling something else. What the attorneys on the panel offer instead is more useful: the identity of the negotiating parties, the four issues on the table, the likely direction of each, and a protection in current law that already answers the most common backlog fear.
The analysis here comes from the EB-5 Essentials panel: Ignacio Donoso, Managing Partner at Donoso and Partners LLC; Aarushi Gupta, Managing Director, India Operations, at Donoso and Partners LLC; Rohit Turkhud, Member at Chiesa Shahinian and Giantomasi PC (CSG Law); and Akshat Gupta, Vice President of Business Development at US Immigration Fund (USIF). What follows draws directly on that conversation and on what they are seeing with their own clients today.
Immigration legislation traditionally starts in the Senate, which makes the Senate’s posture the single most important signal for EB-5’s future. Ignacio Donoso reads that posture as favourable.
“I think there is a strong desire for the continuity of the EB-5 program in the Senate”
— Ignacio Donoso, Donoso and Partners LLC
He expects the Senate to push for more visa numbers to clear backlogs and make the programme more attractive. On the other side of the table, the president and the secretary of commerce have openly stated their desire to move on from EB-5 in its current version. The president has called the programme too inexpensive for a benefit that grants US residency to an entire family. The Senate wants continuity. The White House wants a higher price. The two will negotiate the next version of EB-5 between them.
| Issue | Likely pressure |
| Visa numbers and waiting lists | Senate expected to push for more numbers to clear backlogs |
| Investment amount | White House expected to push above $800,000; the president has called the current level too inexpensive |
| Job creation minimum | Whether 10 jobs remains the required minimum is open for discussion |
| Source of funds tracing | Whether the Gold Card’s expansive net-worth standard becomes the EB-5 standard |
The timing is the part investors most often miss. These are not live negotiations today.
“the negotiations in real terms will only begin after September 30th, 2026.”
— Ignacio Donoso, Donoso and Partners LLC
Waiting for clarity therefore means waiting past the deadline that would have protected you, and that deadline is now less than three months away. An investor who files Form I-526E on or before September 30, 2026, is grandfathered under the current rules, including the $800,000 amount, whatever the negotiation later produces. An investor who waits accepts the negotiated outcome, higher price and all.
EB-5 Dual Approval Code: Under current EB-5 practice, every approved I-526E petition is recorded under two codes at once, the reserved category the investor selected and the unreserved category. By default the investor is processed under the selected category, but if that category is backlogged on the approval date, the investor may elect to be processed as unreserved instead.
The most common fear about set-aside categories is being trapped: you pick rural or high unemployment, the category backlogs, and your family waits behind a queue you did not foresee. Aarushi Gupta’s explanation of the dual approval code answers that fear directly from current law.
“whenever you receive an approval of the I-526E application, we have the approval under two codes.”
— Aarushi Gupta, Donoso and Partners LLC
One code is the reserved category you selected on your forms. The other is unreserved. Processing follows your selected category by default, and the election to switch matters only in the scenario you fear: a backlog in your category on the date of approval. Her firm also expects many non-Chinese investors to genuinely have that choice when the moment comes, because most of its pre-RIA clients have already received their green cards, leaving room in the unreserved queue. A parallel mechanism already exists in the EB-1, EB-2, and EB-3 world, so the concept is tested, not novel.
A natural follow-on question is whether visa numbers might flow into EB-5 from elsewhere, or from the older pre-RIA pool into the new set-asides. Rohit Turkhud drew the boundary.
“for EB-2 and EB-3, unused visa numbers can go back and forth in those categories. EB-5 does not have that provision.”
— Rohit Turkhud, Chiesa Shahinian and Giantomasi PC (CSG Law)
No carryover in, no carryover out. Within EB-5 itself, the arithmetic runs 20 percent of visas reserved for rural, 10 percent for high unemployment areas, and 2 percent for infrastructure, with everything above the set-asides flowing to unreserved. Could surplus numbers someday reach new investors? His caution is that retrogression, when it hits a category, tends to run for years, so spare numbers are not something a family should build a plan on. Plan for the queue that exists, and treat anything better as a bonus.
One development from the segment deserves its own note. Applicants processing through consulates are now receiving notices from the National Benefits Center asking them to select their category. Whether an applicant may switch categories after selecting is, in Rohit Turkhud’s words, itself becoming a subject of conversation, and it is not yet settled. If you are consular processing, that selection deserves attorney input before you respond, because the reversibility of the choice is an open question.
Put the pieces in one frame. The programme’s continuation has strong Senate support. Its price is likely to rise. The negotiation that decides both begins in earnest only after September 30, 2026. And current law already contains the fallback, the dual approval code, that answers the most common category fear. The conclusion is simple. The rules you may file under today are known, favourable, and protected by grandfathering. The rules after the deadline are still to be negotiated, and investors have no seat in that negotiation. Deciding on the current rules means filing while they still apply, and less than three months remain to do it.
Schedule a consultation today to understand your options and build a plan that works for your goals.
Nobody knows the final shape, but the panel expects a long negotiation between the Senate, which wants the programme to continue, and the White House, which wants changes including a higher investment amount. Ignacio Donoso, Managing Partner at Donoso and Partners LLC, expects negotiations in real terms to begin only after September 30, 2026, which is why filing before that date under current rules matters.
It is one of the likeliest points of change. According to Ignacio Donoso, the president has said the current programme is too inexpensive for a benefit that grants US residency to an entire family, and the White House is expected to push for a higher amount in the next reauthorisation. Investors who file Form I-526E on or before September 30, 2026, are grandfathered under the current $800,000 requirement.
Current law gives you a fallback. Aarushi Gupta of Donoso and Partners LLC explains that every I-526E approval is recorded under two codes, your selected reserved category and unreserved. You are processed under your selected category by default, but if it is backlogged on your approval date, you may elect unreserved processing instead. Her firm expects many non-Chinese investors to genuinely have that choice.
No. Rohit Turkhud, Member at Chiesa Shahinian and Giantomasi PC (CSG Law), explains that EB-2 and EB-3 numbers may move between those categories, but EB-5 has no carryover provision in either direction. Within EB-5, he cautions against planning around spare numbers, because retrogression tends to last for years once it hits a category.
Under the EB-5 Reform and Integrity Act of 2022, 20 percent of EB-5 visas are reserved for rural projects, 10 percent for high unemployment areas, and 2 percent for infrastructure, with everything above those set-asides flowing to the unreserved category. The category you invest through determines which pool your family draws from.
Akshat Gupta is Vice President of Business Development at US Immigration Fund, where he works with EB-5 investors across India, the UAE, and other markets. He focuses on investor education and guiding prospective applicants through the EB-5 process.
Ignacio Donoso is Managing Partner at Donoso and Partners LLC, an immigration law firm. He has practised US immigration and investment-based immigration law for nearly twenty years.
Aarushi Gupta is Managing Director, India Operations, at Donoso and Partners LLC. She advises EB-5 investors on petition preparation and source of funds documentation.
Rohit Turkhud is a Member at Chiesa Shahinian and Giantomasi PC (CSG Law). He advises investors and regional centres on EB-5 and investment-based immigration.
Schedule a free consultation today.
SIGN UP TO LEARN MORE
"*" indicates required fields
AVAILABLE NOW?
Speak to your EB-5 immigration specialist on WhatsApp.
