By: Mona Shah, Esq.
Walk into almost any EB-5 webinar this year and you will hear a comforting line: the Regional Center Program is authorized through September 30, 2027, so there is plenty of time. It is technically true, which is what makes it so useful to the people selling you a regional center project. It is also, for most practical purposes, the wrong date. The date that actually protects a regional center investor is a full year earlier, September 30, 2026, and the gap between those two dates is where the marketing tends to go quiet.
There is a second piece of information the regional center pitch tends to leave out, and it is the more important one. Not every EB-5 investor is exposed to this drama at all. The direct EB-5 program, the original program that does not run through a regional center, does not depend on the September deadlines, does not depend on reauthorization, and does not need the grandfathering clause to survive. It simply continues.
Strip away the deadline anxiety and one fact remains: direct EB-5 survives no matter what Congress does with the Regional Center sunset.
The questions many are asking are: What is the grandfathering clause, and why should anyone care? More importantly, what happens if an investor files after September 30th? Finally, which investors does the grandfather clause actually protect and which investors never needed it in the first place!
Why the Clause Exists: A Short, Expensive History Lesson
The grandfathering clause is not abstract draftsmanship, but more of a scar. To understand the grandfathering clause, one must first understand the reasoning behind its inclusion.
On June 30, 2021, the Regional Center Program lapsed. Congress, which had renewed it almost as a reflex for years, simply did not this time, and the regional center sector went dark overnight. USCIS stopped adjudicating regional center cases and began signaling that it might eventually have to deny already pending petitions. Investors who had wired hundreds of thousands of dollars into American projects, and who had done absolutely nothing wrong, were left to wait with no answer to the only question that mattered: when. As my firm wrote at the time in our analysis of the 2021 lapse, no one could even say how long the freeze would last. The uncertainty was not a side effect. For many families, it was the entire ordeal.
The scope of that freeze, using IIUSA’s own data analysis from the period, explains why Congress eventually felt compelled to act. As more than 90% of all historical EB-5 participation ran through the Regional Center Program, the lapse swept in roughly 32,600 committed investors and their families. Nearly 12,000 of them held a pending I-526 that received no adjudication at all during the lapse, and more than 20,630 sat with approved I-526 petitions, fully vetted, simply waiting for a conditional green card that the government had stopped issuing.
More than $15 billion in committed capital was suddenly at risk… roughly 487,000 American jobs were put in the “at-risk” column.
The financial exposure was the part that captured Washington’s attention. More than $15 billion in committed capital was suddenly at risk. An estimated $4.9 billion was mid-flight into the U.S. economy when the music stopped, and investors with approved petitions had already generated $10.3 billion in funded projects across the country. IIUSA put roughly 487,000 American jobs in the at-risk column. Read that figure again: the program meant to create American jobs was, through sheer congressional inertia, threatening nearly half a million of them.
When Congress finally passed the EB-5 Reform and Integrity Act in March 2022, it built in a promise that the 2021 limbo would not be repeated for those who had committed in good faith. That promise is the grandfathering clause. It exists precisely because, left to its own devices, Congress had already proven it would let the program lapse and leave investors stranded.
What the Clause Actually Says (and Why It Is Narrower Than It Sounds)
Now to the law itself, which is mercifully short on this point. The grandfathering protection lives in the EB-5 Reform and Integrity Act of 2022 (RIA), enacted as part of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103, signed March 15, 2022). The operative protection sits at Section 105(c) of the RIA, and the retention-of-eligibility mechanism that flows from it is codified in the Immigration and Nationality Act at INA § 203(b)(5)(M). That is the citation USCIS itself uses in its EB-5 Questions and Answers guidance found on their website, which matters, because the internet is full of confident citations to other subsections that do not match the government’s own.
The clause has three moving parts, and all three point in the same direction. A petition filed on or before September 30, 2026, must still be adjudicated even if the Regional Center Program later lapses or expires. The Department of Homeland Security may not deny or freeze that petition just because the program goes dark. And the protection holds the investor’s priority date through any future gap, keeping the path open all the way to the conditional green card and the eventual removal of conditions on Form I-829.
Any qualifying regional center petition filed on or before September 30, 2026, must continue to be adjudicated, visas must continue to be allocated, and the Form I-829 must still be processed, even if the Regional Center Program lapses or expires.
Here is the part the headline number obscures; this protection is a regional center concern. The whole point of grandfathering is to insulate regional center investors from a regional center program lapse. It is the answer to a problem that only regional center investors have to face. Interestingly, several secondary sources attribute the clause to INA § 203(b)(5)(S), and others wave at it as a freestanding section. In actuality, the authoritative pairing, consistent across the enacted public law and USCIS’s own guidance, is RIA Section 105(c) with retention codified at INA § 203(b)(5)(M).
Two Dates, and the One Everyone Confuses
Almost every avoidable EB-5 mistake this year traces back to treating two different dates as if they were one. They are not. They govern different matters, and both (it is worth stressing!), are about the Regional Center Program.
The grandfathering filing deadline: September 30, 2026
This is the protective cutoff for regional center investors. File a qualifying regional center petition on or before this date, and the petition is grandfathered. Even if Congress never renews the Regional Center Program, that petition must still be carried to conclusion and the visa allocated. This is the date that actually buys safety.
The Regional Center Program authorization date: September 30, 2027
Separately, INA § 203(b)(5)(E)(i) authorizes regional center EB-5 visas through September 30, 2027. That is simply the date the Regional Center Program’s current legal authorization runs out if Congress does nothing. It is the date the webinars love, because it sounds generous. It is not the date that protects anyone.
What if an investor files after September 30, 2026?
This is the question that actually keeps people up at night, so here is the direct answer. A regional center investor who files between October 2026 and September 30, 2027, has a valid petition, but only for as long as the program stays authorized. That petition is not grandfathered. If Congress lets the Regional Center Program expire in 2027 without renewal, USCIS would lose the authority to finish the case, and the investor is back in 2021 territory, holding a petition the government can no longer process. The closer the filing creeps to September 2027, the less runway there is for Congress to rescue it.
The last safe date for a regional center investor is September 30, 2026. The last merely permissible date is September 30, 2027. The gap between them is exactly where unprotected investors sit.
So, when people describe September 30, 2026 as the date the Regional Center Program practically closes to new subscribers, they are not describing a statutory sunset. They are describing the logical consequence of that one-year gap. The program is technically open for another year after the protection ends, but filing into that window means accepting a risk that the grandfathered investor simply does not carry.
And Now the Part the Regional Center Pitch Skips: Direct EB-5
Everything above is a regional center story. Every date, every risk, every reason the grandfathering clause was written. If you have read this far worried about September deadlines, here is the reframe: a large category of EB-5 investors are not in this conversation at all.
The direct EB-5 program is permanently authorized under the Immigration Act of 1990. It is not exposed to the Regional Center sunset, and it does not need the grandfathering clause, because grandfathering was never about direct EB-5 in the first place.
The direct EB-5 program, which generally proceeds on Form I-526, and which included direct pooled investment prior to the enactment of RIA 2022, draws its authority from the Immigration Act of 1990. It is a permanent fixture of U.S. immigration law. It is not part of the periodic regional center reauthorization cycle, it has no sunset to be grandfathered against, and, tellingly, it was the only EB-5 pathway that stayed open to foreign nationals throughout the entire 2021 lapse, while the regional center sector sat frozen. The grandfathering clause protects regional center investors. It does not apply to direct EB-5, and direct EB-5 does not need it.
Where Each Investor Actually Stands
Strip out the noise and every EB-5 investor falls into one of three positions:
- Regional center investor, filed on or before September 30, 2026. Grandfathered. The petition must be adjudicated and the visa allocated regardless of any future lapse. This is the safe seat.
- Regional center investor, filed between October 2026 and September 30, 2027. Valid only while the program remains authorized, and exposed if Congress lets it expire without renewal. The later the filing, the sharper the risk.
- Direct (non-regional-center or standalone) investor. Not bound by either date for program survival, because the direct program is permanent. Grandfathering is irrelevant here; it is not what keeps this pathway open, and nothing about the regional center sunset threatens it.
One honest caveat, so no one mistakes grandfathering for a magic word. It does not guarantee approval, it does not excuse lawful source-of-funds tracing, and it does nothing about per-country visa backlogs, which march to their own grim drum. What it does is protect a pending regional center case from a program-lapse disruption. That is a narrow job, and for those who file in time, it does that job well. For the direct investor, even that worry is someone else’s.
Mona Shah & Partners Global is a U.S. and U.K. global immigration law firm specializing in EB-5 and the residency and citizenship by investment programs.
Selected Sources and Authorities
EB-5 Reform and Integrity Act of 2022, enacted as part of the Consolidated Appropriations Act, 2022, Pub. L. 117-103 (Mar. 15, 2022); RIA Section 105(c).
Immigration and Nationality Act § 203(b)(5)(M) (retention of eligibility); § 203(b)(5)(E)(i) (regional center authorization through September 30, 2027).
U.S. Citizenship and Immigration Services, EB-5 Questions and Answers (uscis.gov), referencing RIA Section 105(c) and INA § 203(b)(5)(M).
Immigration Act of 1990 (permanent authorization of the EB-5 employment-based fifth preference / direct program).
Mona Shah & Partners Global, “Lapse in EB-5 Regional Center Program Puts 500k American Jobs and Billions in Investment at Stake” (2021), mshahlaw.com (IIUSA data analysis figures cited therein).