Visas and the queue

Priority date retention

Also called Priority date preservation, Retention of priority date.

Priority date retention is the carrying of an earlier petition's place in the visa queue over to a later petition, and in EB-5 it is much narrower than investors expect: an EB-2 or EB-3 date cannot be moved to EB-5, and USCIS applies it only to an amended investor petition filed after a regional center, new commercial enterprise or job-creating entity is terminated or debarred.

What it decides

8 CFR 204.5(e) is headed Retention of section 203(b)(1), (2), or (3) priority date and reaches only those three preferences, in both directions. A backlogged EB-2 or EB-3 beneficiary who turns to EB-5 starts a fresh date, and an EB-5 date cannot be carried out into EB-2 or EB-3 either. The wider retention still printed at 8 CFR 204.6(d), which on its face gives an approved investor petition's date to any later section 203(b)(5) petition, came from the 2019 Modernization Rule and was vacated in Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021); USCIS notes that vacatur in its own footnote and rests the retention it does apply on the statute instead. That statute is 8 U.S.C. 1153(b)(5)(M)(v)(I), part of the good faith investor protection: for a petition approved after an amendment following termination or debarment, the Secretary shall retain the priority date of the original petition and prevent age-out of derivative beneficiaries. USCIS states the amended petition must be filed on or after 15 May 2022.

Governed by 8 CFR 204.5(e); 8 CFR 204.6(d), whose retention sentence is vacated 2019 Modernization Rule text and should not be relied on; 8 U.S.C. 1153(b)(5)(M)(v)(I), added by the EB-5 Reform and Integrity Act of 2022 and effective 60 days after enactment under section 103(b)(2) of that Act; USCIS Policy Manual, Volume 6, Part G, Chapter 2, Section F (Priority Dates) and its footnote 140, which cites the statute and Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021); USCIS Policy Manual, Volume 7, Part A, Chapter 6, Section C, subsection 3, under Using Earlier Priority Dates. Note that the Policy Manual footnote miscites the statute as INA 203(b)(M)(v)(I), dropping the (5); the correct cite is INA 203(b)(5)(M)(v)(I). Policy Manual chapter pages print no last-updated date; read 5 August 2026.

Related terms

Priority dateA priority date is the date USCIS properly receives a complete, signed and paid Form I-526 or I-526E, and it fixes the investor's place in the visa queue for their country of chargeability and their EB-5 category.
Good faith investor protectionGood faith investor protection is the rule at 8 U.S.C. 1153(b)(5)(M) that keeps an EB-5 petition or conditional residence alive after USCIS terminates the regional center or debars the new commercial enterprise or job creating entity, provided the investor cures within 180 days of being notified and was not a knowing participant in the conduct behind it.
Regional center terminationRegional center termination is USCIS ending a center's designation, after which the center may not solicit, generate or promote EB-5 investors or otherwise take part in the program, and its investors lose their petitions 180 days after USCIS notifies them unless they move to another center or another new commercial enterprise.
Form I-526EForm I-526E, Immigrant Petition by Regional Center Investor, is the petition an investor files with USCIS to claim EB-5 classification under INA 203(b)(5)(E) for capital pooled in an offering for which a designated regional center has already filed Form I-956F.

Checked against primary sources on 10 August 2026. Back to the glossary