What the grandfathering clause is
The grandfathering clause is a protective provision in the EB-5 Reform and Integrity Act of 2022 (RIA). Its core rule is this: a Form I-526E petition filed on or before September 30, 2026 will continue to be adjudicated by USCIS even if the regional center program’s authorization later expires, and the petitioner and family members remain eligible for visas and the subsequent steps of the process.
The clause is best understood against its history. Since its creation in 1992 the regional center program has been a pilot with an expiration date, dependent on repeated reauthorization by Congress. When the authorization lapsed on June 30, 2021, the program was suspended for roughly nine months; pending petitions from regional center investors were held and new petitions could not be accepted. The grandfathering clause was written in direct response. It places into statute the principle that a petition already filed is not affected by a lapse, so investors no longer have to stake their outcome entirely on the congressional calendar. For the background, see A History of EB-5.
Two dates, two meanings
The RIA involves two dates that are easily confused:
| Date | Nature | Meaning |
|---|---|---|
| September 30, 2026 | Grandfathering cutoff | I-526E petitions filed on or before this date are protected |
| September 30, 2027 | Regional center sunset | If Congress has not reauthorized the program by then, it lapses |
The dates are one year apart. The intervening window, October 1, 2026 through September 30, 2027, is a distinct period: the regional center program remains authorized and USCIS may continue to accept I-526E petitions, but petitions filed during the window do not have grandfathering protection. If the program lapses after September 30, 2027, the treatment of those petitions will depend on the law and USCIS policy in effect at that time.
What the clause protects
Under the RIA, a protected petition continues to move forward during a lapse. Specifically:
- I-526E adjudication: USCIS continues to adjudicate filed I-526E petitions rather than holding them.
- Visa issuance and status: after I-526E approval, the applicant may proceed to conditional permanent residence through Form I-485 in the United States or the DS-260 consular process abroad.
- I-829 removal of conditions: conditional residents may file Form I-829 and obtain permanent residence.
- Family members: the principal investor’s spouse and eligible children benefit alongside the principal.
In other words, the clause covers the full chain from I-526E to permanent residence, not merely the I-526E itself.
What the clause does not protect
The clause has clear limits, and investors should avoid reading more into it than it provides:
- It does not guarantee approval. The clause ensures that a petition continues to be adjudicated; it does not change the substantive standards. Source-of-funds, job creation, and project compliance requirements apply as usual, and a deficient petition will still be denied.
- It does not speed up processing. The clause does not alter USCIS’s processing order or timelines. USCIS prioritizes I-526E petitions in rural set-aside projects and otherwise processes by visa availability and filing order; grandfathering adds no priority of its own.
- It does not add visa numbers. The clause creates no additional visa allocation and does not change the Visa Bulletin. Cutoff dates in the unreserved category apply to protected petitioners as to anyone else.
- It does not cover filings after September 30, 2026. An I-526E filed on or after October 1, 2026 is not protected, even though it is filed before the September 30, 2027 sunset.
- It does not protect the project. The clause protects the investor’s petition. It does not mean a project or regional center may continue raising new investors during a lapse, and it does not alter regional center compliance obligations.
- It is not relevant to direct investment. The direct-investment category (Form I-526) is permanent law that does not depend on regional center reauthorization and needs no grandfathering.
Practical implications for timing
The clause turns the question “was the petition filed by September 30, 2026?” into a legally significant dividing line. For investors considering EB-5, several points matter in practice.
The filing date is the USCIS receipt date. Grandfathering depends on when the I-526E is filed, not when the investor signs subscription documents or wires funds. Preparing an I-526E involves source-of-funds documentation, project documents, and the status of the regional center’s Form I-956F, and typically takes months. Investors who wish to file before the cutoff should allow ample preparation time.
Check the I-956F status. A regional center must file Form I-956F for each project. An investor may file I-526E while the I-956F is pending, but adjudication of the I-526E depends on approval of the I-956F. Investors should confirm that the I-956F for their project has been filed and understand its status.
Do not let the deadline erode due diligence. As a cutoff approaches, filings tend to surge, and some sponsors may use “file before the grandfathering deadline” as a sales message. Investors should recognize that grandfathering does not reduce project risk and that source-of-funds review is not relaxed. Any promise of guaranteed repayment or a guaranteed green card is a warning sign.
Filing remains possible after October 1, 2026. Missing the cutoff does not close the program. Until September 30, 2027 the regional center program remains authorized and USCIS continues to accept I-526E petitions; the difference is that the treatment of those petitions during any lapse will depend on the law at that time.
No extra action is required. The clause applies automatically. Protected investors do not need to file any additional application or declaration.
Relationship to the 2027 sunset
The grandfathering clause and the September 30, 2027 sunset are two parts of a single design. In the RIA Congress set a five-and-a-half-year authorization together with a one-year protective buffer. The intent is that, even if reauthorization is delayed again, investors who have already filed will not repeat the 2021 experience, while Congress has a year to negotiate reauthorization without disturbing existing petitioners.
Whether and how Congress will reauthorize the program before September 30, 2027 is not yet known. Possible outcomes include timely reauthorization, a short-term extension, a lapse followed by a retroactive fix, or reauthorization combined with further rule changes. For the historical record and scenario analysis, see Regional Center Reauthorization in 2027: Lessons from Past Lapses. Under any of these outcomes, the legal position of petitioners who filed on or before September 30, 2026 has already been settled by the RIA.
Key takeaways
- Grandfathering: an I-526E filed on or before September 30, 2026 continues to be adjudicated and remains visa-eligible even if the regional center program later lapses.
- September 30, 2026 is the grandfathering cutoff and September 30, 2027 is the sunset; petitions filed between them are not grandfathered.
- Protection covers the full chain of I-526E, I-485 or DS-260, and I-829, including family members.
- The clause does not guarantee approval, accelerate processing, add visa numbers, or reduce project risk.
- The filing date is the USCIS receipt date, and preparation typically takes months; deadline pressure is no reason to shortcut due diligence.