The EB-5 Modernization Rule took effect on 21 November 2019 and raised the minimum investment from $500,000 to $900,000 inside a Targeted Employment Area, and from $1,000,000 to $1,800,000 everywhere else. It lasted nineteen months. On 22 June 2021 a federal judge in the Northern District of California vacated the whole rule in Behring Regional Center LLC v Wolf, holding that Kevin McAleenan had not been lawfully serving as Acting Secretary of Homeland Security when he signed it, so he had no power to issue it at all. The price fell back to $500,000 overnight. Nothing in the ruling touched the question of whether the higher amounts were sound policy.
That window is shut. Since 15 March 2022 the floor has been $800,000 in a Targeted Employment Area and $1,050,000 outside one. Congress fixed those figures by statute rather than by regulation, which is why no court has disturbed them.
What the 2019 rule actually changed
Money was the headline. The rest mattered more to how deals were built.
- TEA designation moved to Washington. States had been issuing TEA letters, and some of them strung together long chains of census tracts to reach a poor neighborhood from an expensive site. DHS took the pen and confined a high unemployment TEA to a census tract or directly adjacent tracts.
- Inflation indexing arrived. The rule set automatic adjustments every five years, an idea that outlived its own vacatur and reappeared in the 2022 statute.
- Priority date retention. An investor with an approved petition could carry the original priority date to a later one, which matters enormously to anyone born in a backlogged country.
- Cleanup for conditional residents. Procedures were clarified for derivative family members who file separately to remove conditions on residence.
Deal structuring reacted at once. Projects in expensive urban cores that had relied on creative tract mapping lost the TEA claim, and sponsors either repriced to $1,800,000 per investor or moved the project.
Behring Regional Center and the signature problem
Behring, a California regional center, attacked the rule on administrative law grounds rather than economic ones. Its argument was about who held the pen. Under the order of succession at the Department of Homeland Security, the official who promulgated the rule was not validly exercising that office. A rule issued without authority is void. Judge Jeffrey White agreed and set aside the entire regulation.
USCIS updated its filing guidance within weeks and went back to accepting petitions at the pre-2019 amounts. Investors who had already filed at $900,000 kept their petitions at the amount they had paid. No refund mechanism existed, and none was created.
Eight months when $500,000 worked again
Here is the detail people forget. Congress let the regional center program lapse on 30 June 2021, eight days after the vacatur. So the restored $500,000 price was available only for a direct investment, where you build and manage the business yourself and put ten full time employees on your own payroll. Regional center filings were frozen outright until March 2022. A handful of investors used that opening. Most could not, because the direct model demands an operating company rather than a passive position in somebody else's project.
Who paid for the chaos
The 2019 to 2021 cohort did. Somebody who filed a Form I-526 standalone investor petition at $900,000 in March 2021 watched a neighbor file at $500,000 that autumn for the same category of green card. USCIS did not equalize the two. Sponsors carried a second cost, because offerings had to be restructured around whichever threshold happened to be in force that month. Marketing material printed in 2019 was obsolete before anyone handed it out.
Can you still file at $500,000?
No. Any Form I-526E petition for a regional center investor filed today requires $800,000 for a project in a Targeted Employment Area or a qualifying infrastructure project, and $1,050,000 anywhere else. An EB-5 offer priced at $500,000 in 2026 is stale marketing at best. The amounts sit in the visa allocation statute at 8 USC 1153, where anyone can read them without paying for advice.
How the RIA settled the price in 2022
Congress passed the EB-5 Reform and Integrity Act inside the Consolidated Appropriations Act, 2022, signed on March 15, 2022 as Public Law 117-103. A statute cannot be vacated because the wrong official signed a regulation, which is precisely why the 2022 numbers have held.
- Minimums of $800,000 and $1,050,000, with the first inflation adjustment due on 1 January 2027 and further adjustments every five years after that.
- Visa set-asides of 20 percent for rural projects and 10 percent for high unemployment areas, plus 2 percent for infrastructure, a niche examined in EB-5 Infrastructure Projects 2026.
- TEA designation by DHS, valid for two years, with high unemployment measured against 150 percent of the national average.
- Regional center authorization running through September 30, 2027. Petitions filed by September 30, 2026 are grandfathered if the program lapses.
Mechanics of the new TEA regime, which replaced the old state letters, are unpacked in TEA After RIA 2022. Superseded investment amounts still sit in the unamended regulation at 8 CFR 204.6, which DHS has not rewritten since the statute passed. Read the statute when the two disagree.
Regulatory risk belongs in your underwriting
A rule can vanish for reasons that have nothing to do with its merits. Behring turned on an appointment defect, and the same theory can reach future rulemaking whenever an agency is run by acting officials. Timing risk cuts both ways. Investors who rushed to file before 21 November 2019 locked in $500,000 and were vindicated, while investors who filed in early 2021 paid $900,000 for a rule a judge erased months later.
Legislation outranks regulation, which is the practical lesson for 2026. Anyone modeling a filing this year should keep two dates on the wall, since the 30 September 2026 grandfathering deadline and the 1 January 2027 inflation adjustment both fall inside the planning horizon of a petition prepared now. The full sequence of changes since 1990 is laid out in Key EB-5 Amendments and Extensions, and the way USCIS applies current standards to files already under review is covered in USCIS Red Flags in EB-5 2026.
Do not buy a deal because a price might rise. Buy it because the project can repay.