The programme
Grandfathering
Also called protection from expired legislation, grandfathered petition, 203(b)(5)(S).
The rule at 8 U.S.C. 1153(b)(5)(S) that requires DHS to keep processing a regional center investor's petition, and to keep visas flowing to approved ones, even if the legislation authorizing the regional center program expires, provided the petition was filed on or before 30 September 2026.
What it decides
Subparagraph (S), headed "Protection from expired legislation", directs the Secretary of Homeland Security to do three things notwithstanding the expiration of the legislation authorizing the regional center program under subparagraph (E). Clause (i): continue processing petitions under 8 U.S.C. 1154(a)(1)(H) and 1186b "based on an investment in a new commercial enterprise associated with a regional center that were filed on or before September 30, 2026". That covers the regional center investor petition, Form I-526E and legacy regional center Form I-526, and the petition to remove conditions, Form I-829. Clause (ii): such a petition may not be denied because the legislation expired. Clause (iii): the allocation of visas to the beneficiaries of approved such petitions may not be suspended or terminated. The date attaches to the filing, not to the approval, so a petition filed on 30 September 2026 is covered and one filed a day later is not. Two things that date is not. It is not the program's expiration: subparagraph (E)(i) makes regional center visas available "through September 30, 2027", a year later. And it does not gate direct EB-5, because clause (i) reaches only petitions tied to a regional center, and the sunset in (E) applies to the regional center route alone. "Grandfathering" is practitioner usage; the word appears nowhere in the statute. Subparagraph (M) is a different rule and is regularly mistaken for this one. It protects good faith investors after a regional center, new commercial enterprise or job-creating entity is terminated or debarred. The petition or conditional resident status ends 180 days after DHS notifies the investor, unless the investor cures under (M)(ii) by associating the enterprise with an approved regional center, investing in another new commercial enterprise, or, on debarment of an enterprise or job-creating entity, joining one in good standing and adding capital to meet the remaining job creation. An amendment under (M)(iii) is due within the same 180 days, and (M)(v) preserves the original priority date.
Where this is explained properly
Pages here that go into grandfathering rather than mentioning it.
Related terms
- Sunset and reauthorizationThe regional center program's visa authorization runs through 30 September 2027 under 8 U.S.C. 1153(b)(5)(E), and only an act of Congress can extend it.
- Program lapseThe period from 1 July 2021 to 14 May 2022 when no statute authorized the EB-5 regional center program, so no investor could file a regional center petition. USCIS rejected regional center petitions received on or after 1 July 2021 and suspended adjudication of those already pending. Standalone petitions were unaffected.
- Regional centerA regional center is an economic unit, public or private, that USCIS has designated to sponsor pooled EB-5 investment within a defined, contiguous and limited geographic area, and it is the only route on which a petition may count indirect and induced jobs.
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