What the EB 5 Program Is

Congress created EB-5 in 1990 to encourage U.S. economic growth through capital investment and job creation. An investor may seek permanent residence by making a qualifying EB-5 Investment in a new commercial enterprise in the United States and satisfying the legal requirements of the category. A qualifying spouse and unmarried children under 21 may generally seek permanent residence as derivative beneficiaries.

At the time of this update, the statutory minimum investment is $1,050,000 for a standard project or $800,000 for a qualifying targeted employment area or infrastructure project. Each EB-5 Investment must be connected to the creation of at least 10 full-time jobs for qualifying U.S. workers. The capital must be lawfully obtained, properly traced, and placed at risk under the governing rules.

An investor may pursue EB-5 through a direct investment or through a designated EB-5 Regional Center. Direct cases generally depend on direct job creation by the new commercial enterprise. EB-5 Regional Center cases may use the job creation rules applicable to that program, including indirect job creation where permitted. In either structure, the immigration case and the investment decision require careful and separate analysis.

Why Moody v Noem Matters

In Moody v. Noem, decided on November 12, 2025, the U.S. District Court for the District of Colorado stayed certain EB-5 fees that DHS had adopted as part of the broader USCIS fee rule effective April 1, 2024. The court concluded that the EB-5 Reform and Integrity Act required DHS to conduct a program-specific fee study before adjusting EB-5 Program fees under that authority.

After the decision, USCIS returned to accepting the EB-5 fees that were in effect before April 1, 2024. This produced the lower fee figures discussed in many EB-5 updates issued after the case. The decision did not eliminate USCIS authority to set EB-5 fees. Rather, it required the agency to use the framework Congress established in the 2022 statute.

The final rule published on September 30, 2026 is DHS's response to that requirement. DHS completed a revised EB-5 fee study, considered comments on its October 2025 proposed rule, and adopted a new fee schedule designed to recover the costs of administering the EB-5 Program and to pursue the processing time goals set by Congress.

The New Final Rule

The final rule becomes effective on November 30, 2026. Applications, petitions, and requests postmarked on or after that date must include the new USCIS fees. The rule does not increase the required EB-5 Investment amount. It changes the government filing fees and adds a new $75 EB-5 Technology Fee to certain investor petitions.

The new Form I-526 and initial Form I-526E fees include a $75 EB-5 Technology Fee. These are USCIS government fees only; they do not include the EB-5 Investment amount, EB-5 Regional Center administrative fees, legal fees, or project costs.

What Has Not Changed

Paying a filing fee does not establish eligibility for an EB-5 Green Card. Investors must still prove that the capital was obtained through lawful means, that the EB-5 Investment satisfies the applicable requirements, and that the project will create the required jobs. USCIS may request further evidence, conduct background and security checks, review the source and path of funds, and examine whether the EB-5 Regional Center or project remains in compliance with the law.

The final fee rule also does not guarantee a processing date or approval. Processing time can be affected by visa availability, case complexity, project documentation, security checks, requests for evidence, and USCIS workload. The rule is intended to provide funding that helps USCIS administer the EB-5 Program and work toward statutory processing time goals.

Practical Steps Before November 30 2026

An investor who expects to file near the effective date should not make a decision based only on the fee difference. A filing must be supported by complete source of funds documentation, a sound immigration strategy, and appropriate project diligence. Filing before a new fee becomes effective may be relevant in some cases, but it does not cure weaknesses in the EB-5 Investment or the evidence.

EB-5 Regional Centers, new commercial enterprises, and promoters should review their filing checklists, offering disclosures, investor communications, and compliance budgets. They should describe government fees accurately and distinguish them from investment amounts and project charges. Before filing, applicants and representatives should confirm the current edition of Form G-1055, the relevant USCIS form page, and any implementation instructions.