With the implementation of the “EB-5 Reform and Integrity Act” (referred to as RIA), more and more people preparing to apply for EB-5 investment immigration are beginning to pay attention to a specific date – September 30, 2026.
Many immigration intermediaries even promote that “applications must be submitted before September 30, 2026, otherwise it will be too late.” “Missing this date may mean no longer being able to apply in the future.”
Do these claims have legal basis? Why is a specific date drawing so much attention? The answer lies in a legal provision within the RIA – the Grandfathering Provision.
Before delving into it, we first need to understand what the “Grandfathering Provision” actually means.
The “Grandfathering Provision” is not a unique legal concept exclusive to EB-5.
In U.S. law, when laws are amended or systems adjusted, to prevent actions that have already lawfully commenced from being unfairly affected by new laws, legislative bodies sometimes stipulate that for matters already meeting conditions and lawfully initiated, the original legal provisions may still apply.
This arrangement is commonly referred to as the “Grandfathering Provision.” In other words, its purpose is not to grant applicants additional benefits, but rather to offer a degree of legal protection to individuals who have already commenced relevant procedures when the law changes, reducing uncertainties brought about by policy changes.
The attention of EB-5 applicants on the Grandfathering Provision is closely related to experiences from the past few years.
In 2021, EB-5 regional center projects temporarily paused due to the expiration of congressional authorization, impacting a large number of investors who were already prepared to invest or had applications pending, with some cases even being stalled temporarily.
In 2022, the U.S. Congress passed the RIA, reauthorizing the regional center programs while also learning from past experiences, adding the Grandfathering Provision in the law, aiming to reduce the risk of future impacts on investors due to regional center authorization changes.
It can be said that the Grandfathering Provision is indeed an institutional arrangement established in response to issues that have occurred in the past.
According to the provisions of the RIA, investors who submit qualifying EB-5 applications before September 30, 2026, under the conditions set by the law, may benefit from the protection of the Grandfathering Provision.
The protection mentioned here does not guarantee that the application will be approved. Instead, it means:
If there are further legal changes affecting regional center projects in the future, cases meeting the conditions for the Grandfathering Provision can generally continue to be processed in accordance with the law, rather than automatically losing eligibility due to authorization changes.
For applicants, this implies that ongoing application processes have a higher legal stability.
This is why many lawyers advise that investors with clear application plans should fully understand the significance of this time point.
At the same time, there are misconceptions among many applicants regarding the Grandfathering Provision.
Firstly, the Grandfathering Provision does not guarantee approval of the application.
EB-5 applications still need to meet all requirements stipulated by U.S. immigration laws, including the investment amount, legal sources of funds, job creation, and other statutory conditions.
Secondly, the Grandfathering Provision does not guarantee the success of the investment.
EB-5 is primarily a business investment, and any investment project may be affected by factors such as market conditions, management, financing structure, etc. The Grandfathering Provision will not automatically compensate for investment losses due to project failures.
Moreover, the Grandfathering Provision does not exempt immigration agencies from conducting legal reviews of cases.
Immigration authorities will still review the application materials in accordance with legal requirements. If the application materials do not meet the criteria or if the project itself has significant issues, the case could still be affected.
Therefore, the Grandfathering Provision protects the application process, not the application outcome.
As the deadline of September 30, 2026 approaches, discussions about the Grandfathering Provision in the market are increasing, leading to some statements that could mislead applicants.
Misconception One:
Submitting the application before September 30 guarantees obtaining a green card. This is the most common misunderstanding currently.
The Grandfathering Provision protects the opportunity for applications lawfully submitted to continue processing under specific circumstances, rather than ensuring approval of the application. Applicants still need to lawfully complete the investment, prove the legality of the funds, fulfill job creation requirements, and pass the review of the U.S. immigration authorities.
Thus, meeting the deadline does not equate to guaranteed success.
Misconception Two:
The Grandfathering Provision can ensure the investment will not fail.
The Grandfathering Provision is a part of the immigration legal system, not an investment protection system.
It protects the application process, not the commercial investment itself. If a project fails, the developer defaults, or significant market changes occur, the Grandfathering Provision does not compensate investors for economic losses, nor does it automatically approve immigration applications due to project failure. Investment risks still need to be assessed and borne by the investors themselves.
Misconception Three:
Due to the Grandfathering Provision deadline, the quality of the project is no longer important.
This is the most alarming misconception.
In recent years, some investors have feared missing the deadline and hastily made investment decisions without fully understanding the project.
In reality, EB-5 is primarily a commercial investment and secondly an immigration application. Even if a project qualifies for the Grandfathering Provision, there may still be commercial risks present. If the development team lacks experience, fund management is inadequate, job creation projections are unrealistic, investors may face significant risks. Therefore, legal and commercial due diligence should never be disregarded due to time pressure.
For those preparing to apply for EB-5, the Grandfathering Provision is certainly worth paying attention to.
It can reduce uncertainties arising from future policy changes to some extent and provide a certain level of legal protection for investors who have lawfully initiated the application process. However, the Grandfathering Provision is just one of the factors to consider during the application process.
Applicants should pay more attention to:
– Whether the investment project is legal and compliant?
– Whether the regional center has a good operational track record?
– Whether the development team is experienced?
– Whether fund management is adequate?
– Whether job creation projections are reasonable?
– Whether sources of funds can be lawfully proven?
These factors often have a greater impact on the final outcome of an EB-5 application than rushing to submit before a specific deadline.
Mature investment decisions should be based on thorough understanding of the law, rigorous commercial due diligence, and sensible planning of family immigration arrangements, rather than hastily making decisions just because of a deadline.
The Grandfathering Provision is an important institutional arrangement within the RIA reform, with its core aim being to protect investors who have lawfully initiated the application process in the face of legal changes, reducing uncertainties brought about by future policy changes. For EB-5 applicants, September 30, 2026 is indeed an important date to watch, but it is not the sole determinant of application success, nor is it the so-called “last chance.” Whether the Grandfathering Provision applies or not, EB-5 remains a significant decision involving identity planning and commercial investment. Understanding the legal provisions, thoroughly assessing investment projects, conducting legal and commercial due diligence, are far more critical than merely chasing a deadline.
(Note: This article is a general compilation of immigration system information and practical observations, and does not constitute legal advice or specific legal suggestions for any individual cases. Actual case results depend on individual circumstances and applicable laws. If dealing with personal cases, consultation with a qualified immigration lawyer is recommended.)