The distinction that runs through all of it is between “no registration required” and “no law applies.” Those are not the same thing, and the antifraud rules never switch off.

Is it a security at all?

The investment contract test. SEC v. W.J. Howey Co., 328 U.S. 293 (1946), asks “whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.” Courts no longer read “solely” literally; the question is whether the efforts of others are the significant ones.

Stock is stock. Landreth Timber Co. v. Landreth, 471 U.S. 681 (1985), held that an instrument called stock, bearing stock’s usual characteristics, is a security, and rejected the “sale of business” doctrine. Control is irrelevant. The companion case, Gould v. Ruefenacht, 471 U.S. 701 (1985), reached the same result on a fifty percent purchase.

Assets are not. The statutory definition at 15 U.S.C. § 77b(a)(1) enumerates instruments: notes, stock, bonds, investment contracts, and the like. Equipment, inventory, goodwill, leases, and customer lists are not among them, and Texas parallels the federal list at Tex. Gov’t Code § 4001.068(a). An asset purchase generally has nothing for the Acts to operate on.

But watch the seller note. Most asset acquisitions are partly seller-financed, and a note is presumptively a security. Reves v. Ernst & Young, 494 U.S. 56 (1990), applies a family-resemblance test with recognized exceptions including a note secured by a lien on a small business or its assets. A single secured acquisition note that is not distributed comfortably fits that exception. It is an analysis, not an automatic pass.

LLC interests depend on the operating agreement. There is no per se rule. Courts run Howey on the governance documents. A member-managed LLC interest held by a member with real governance rights, including the ability to remove managers, is usually not a security. A manager-managed interest held by a passive member usually is. What controls is the objective ability to exercise control under the agreement, not whether you exercise it. See Great Lakes Chemical Corp. v. Monsanto Co., 96 F. Supp. 2d 376 (D. Del. 2000), and Robinson v. Glynn, 349 F.3d 166 (4th Cir. 2003).

General partnerships, and a warning aimed at foreign investors. In the Fifth Circuit, which governs Texas, Williamson v. Tucker, 645 F.2d 404 (1981), holds that a general partnership or joint venture interest generally is not an investment contract, but the presumption is rebuttable. One of the three ways to rebut it is that the partner “is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers.”

Picture the man that describes. He arrived eight months ago. His English is functional but not fast. He has never run a U.S. company, he does not know what a UCC filing is, and his “partner” handles the bank, the payroll, the landlord, and the books. On paper he is a general partner with full voting rights. In practice he signs what he is handed. That is Williamson factor two, and it converts his partnership interest into a security, with everything that follows.

It is one more reason the governance documents matter, and one more reason a foreign investor should not take a U.S. partner’s word for what he is signing.

What that means in practice

The favorable half nobody mentions

Because a stock purchase is a securities transaction, an E-2 buyer misled by a seller’s misrepresentations has a federal Rule 10b-5 claim and, in Texas, a statutory rescission remedy under Tex. Gov’t Code § 4008.052 that an asset buyer would not have. That is a genuine reason a client might prefer a stock deal, and it belongs in the analysis alongside the tax and liability reasons. See Buying an Existing Business on an E-2.

The exemptions, when a security is involved

Section 4(a)(2), 15 U.S.C. § 77d(a)(2), exempts “transactions by an issuer not involving any public offering.” SEC v. Ralston Purina Co., 346 U.S. 119 (1953), asks whether the offerees can “fend for themselves,” and puts the burden of proving the exemption on the issuer. Exemptions are affirmative defenses you have to be able to prove, which is why documentation stays mandatory even when filings are not.

Regulation D. Rule 506(b) permits an unlimited number of accredited investors and no general solicitation. Rule 506(c) permits general solicitation but requires all purchasers to be accredited and reasonable steps to verify it. Rule 506 securities are “covered securities,” which preempts state registration. Rule 504 is not covered, which is why multi-state raises use 506.

Accreditation is not a residency concept. A foreign national qualifies on the same net worth and income tests at 17 C.F.R. § 230.501(a), and non-U.S. assets and income count. E-2 and EB-5 investors are very often accredited. Entity category (a)(8), where all equity owners are accredited, is the workhorse for a foreign family holding vehicle.

Regulation S matters most to this audience. Offers and sales occurring outside the United States are outside § 5, on two conditions: an offshore transaction, and no directed selling efforts in the United States. Equity of a non-reporting U.S. issuer, which describes nearly every EB-5 new commercial enterprise and every private U.S. operating company, falls into Category 3 and carries a one-year distribution compliance period, offering restrictions, purchaser certifications, and legends.

Two things clients consistently misunderstand about Reg S. It does not make the interest “not a security.” And it does not displace antifraud law. Regulation S says expressly that it relates solely to § 5 and not to the antifraud provisions.

What changed in 2025 and matters to EB-5. On March 12, 2025, SEC staff took the position in a no-action letter, with accompanying interpretations, that a high minimum investment amount is itself a relevant factor in verifying accredited status under Rule 506(c). Reported thresholds are $200,000 for natural persons and $1,000,000 for entities. Three conditions attach: the investor represents in writing that he is accredited; he represents that no third party financed the investment in order to make it; and the issuer has no knowledge to the contrary. Every EB-5 investment exceeds the natural-person threshold, which is a practice-changing development for offerings marketed to investors abroad who could not easily produce U.S.-style documentation.

Which state’s rules reach you

The two sections that follow are for two different readers. If your business and your investors are in Texas, read the Texas section and skip Illinois. If you are in Illinois, do the reverse. If your investors are in several states, you need all of them, and the preemption section after that explains why the list is shorter than you fear.

Texas: two exemptions, one filing, and a felony

The Texas Securities Act was recodified into Government Code Title 12, Chapters 4001 through 4008, effective January 1, 2022. The recodification was expressly nonsubstantive, so pre-2022 case law construing former Article 581 remains good authority.

One correction to a belief I hear regularly: the Texas State Securities Board was not consolidated into another agency. It continues as an independent agency, and was continued by the Legislature through 2031.

The exemptions likely to apply:

• 4005.004, isolated transactions.Where the seller is not in the business of selling securities and the sale is an isolated transaction not made in the course of repeated and consecutive transactions, involving personal investment of the seller’s personal holdings or a change in investment. This is the exemption that covers a one-off E-2 stock purchase from an individual owner.
• 4005.012, limited offerings.Sales made without any public solicitation or advertisement, where the issuer’s total security holders do not exceed thirty-five after the sale, or where the issuer sold to not more than fifteen persons in the preceding twelve months. No filing and no fee.
• 7 TAC § 139.19, the uniform accredited investor exemption. Notice of transaction within fifteen days, no fee.

The Rule 506 notice filing. A copy of the Form D through the NASAA Electronic Filing Depository, no later than fifteen days after the first sale in Texas, with a fee of one-tenth of one percent of the offering, capped at $500. No annual renewal.

And the part that makes this post honest. § 4005.001 exempts covered transactions “except as expressly provided otherwise in this title.” Civil liability under § 4008.052 applies “regardless of whether the security or transaction is exempt under Chapter 4005.” Criminal securities fraud under § 4007.203 is graded by amount, and at $100,000 or more it is a first-degree felony. Every EB-5 investment exceeds that threshold.

Illinois: earlier trigger, annual filing, and an independent violation

Under the Illinois Securities Law of 1953, 815 ILCS 5/5, securities must be registered prior to their offer or sale in Illinois unless exempt. Note “offer.” Illinois attaches earlier than the federal Form D trigger at first sale.

Exempt transactions under 815 ILCS 5/4 include the limited offering exemption at 4(G), which requires that sales to Illinois residents in the preceding twelve months have been to not more than thirty-five persons or have involved an aggregate price of not more than $1,000,000, with no general advertising or solicitation in Illinois and compensation not exceeding twenty percent of the sale price; the accredited investor exemption at 4(H); and isolated transactions at 4(Q).

The Illinois trap. Under 815 ILCS 5/2a and 14 Ill. Adm. Code § 130.293, a Rule 506 issuer files Form D with a $100 fee within fifteen days of the first sale to an Illinois resident, and then annually thereafter. Illinois is not a one-and-done state the way Texas is. If the issuer fails to remedy a deficiency within ten business days of notice, the Secretary of State may treat it as a refusal and require registration. And a missed filing is an independent violation under 815 ILCS 5/12(D), not merely a delinquent fee.

What preemption does, and the row people miss

The National Securities Markets Improvement Act, 15 U.S.C. § 77r, preempts state registration and merit review for covered securities, including Rule 506 offerings.

NSMIA preempts state regulation of the security. It does not preempt state licensing of the people selling it.

EB-5, specifically

A regional center EB-5 interest is a security, essentially always. It is a limited partnership interest or a passive LLC interest whose returns depend on a manager’s efforts, which is Howey in textbook form. The SEC has said so in enforcement, charging a regional center operator and thirty-seven affiliated partnerships with offering unregistered EB-5 securities and with broker-dealer registration violations.

Three points for investors.

“Not registered” is not the same as “not regulated.” The SEC and USCIS joint investor alert notes that most regional center offerings are not registered with the SEC or any state regulator. They are unregistered because they are exempt, which is lawful. The alert’s warning is worth quoting: “If your investment through EB-5 turns out to be in a fraudulent securities offering, you may lose both your money and your path to lawful permanent residency.”

Form I-956K is not a broker-dealer registration. The 2022 Act requires direct and third-party promoters to register with USCIS on Form I-956K. That registration does not satisfy, substitute for, or excuse registration under § 15(a) of the Exchange Act or state agent registration. Separate regimes, separate agencies. A person taking transaction-based compensation for soliciting EB-5 investors is acting as a broker, and the SEC has brought cases on that theory. See The July 2026 EB-5 Rule.

A true standalone EB-5 where the investor forms, capitalizes, and actively manages his own enterprise, with no pooling and no promoter, may fall outside the definition of a security on the same reasoning that covers an E-2 founder. Note carefully, though: EB-5 requires only policy formulation, not day-to-day management, so an investor can satisfy the immigration test while remaining entirely passive for securities purposes. The two tests are not the same test, and satisfying the first does not answer the second.

Where that leaves you

For most of our E-2 clients, none of this applies, because no security is involved. For the ones buying stock, the transaction is exempt and the obligation is to deal honestly. For anyone investing in a pooled offering, including every regional center EB-5, the compliance is real, it belongs to the issuer, and it is a reason to read what you are signing.

Regulation D puts it plainly: its exemptions “are not exempt from the antifraud, civil liability, or other provisions of the federal securities laws,” and “nothing in Regulation D obviates the need to comply with any applicable state law relating to the offer and sale of securities.”

If you are buying a business, forming an entity with outside money, or subscribing to an EB-5 offering, the securities analysis belongs before the documents are signed. We handle it in the same engagement as the petition. Call or text 512.761.8479.

Read next: Buying an Existing Business on an E-2 · The July 2026 EB-5 Rule

Why an acquisition is a good E-2 vehicle

The regulation contemplates it directly. 22 C.F.R. § 41.51(b)(9)(i)(A) measures substantiality “in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration.” And the Foreign Affairs Manual gives you the denominator: “The cost of an established business is generally its purchase price, which is normally the fair market value.”

Compare a startup, where the denominator is “the actual cost needed to establish such a business to the point of being operational,” proved with invoices, contracts, and appraisals. A purchase price supported by a valuation is a cleaner number.

An operating business also makes two other showings easier. “Real and active” is nearly self-proving when the doors are open and payroll is running. And marginality projections built on three years of historical financials are far more persuasive than projections built on hope.

Deal term one: how you finance it

This is where good acquisitions fail.

E-2 capital must be “the investor’s unsecured personal business capital or capital secured by personal assets.” A loan collateralized by the assets of the business you are acquiring does not count toward the investment, because you have not put anything of your own at risk. Adding personal collateral alongside business collateral does not fix it. If the business is used as collateral, the borrowed funds are not at risk even where some personal assets are pledged too.

The practical consequence: a conventional acquisition loan, including a typical SBA 7(a) structure, may leave your qualifying investment far smaller than your purchase price. Model the numerator before you sign a term sheet.

Seller financing has a second consequence. A seller-carried promissory note is presumptively a security under federal law, though a single, secured, non-distributed acquisition note ordinarily falls within a recognized exception. It is an analysis, not an automatic pass. See When Your Investment Is a Security.

Deal term two: assets or stock

Buyers usually choose between these for tax and liability reasons. There is a third consequence.

The fourth row surprises people. Buying one hundred percent of a company’s stock is a securities transaction, and the fact that you control the company afterward does not change that. For a one-off private purchase this means no registration and no filings, but the antifraud rules attach, which cuts in your favor: a buyer misled by a seller has remedies an asset buyer would not have. The case law and the Texas rescission remedy are in When Your Investment Is a Security. The point here is that it should be a considered choice, not an accident.

Deal term three: the closing condition

Your capital has to be irrevocably committed, and the Foreign Affairs Manual is unforgiving about halfway measures. Mere intent to invest, uncommitted funds in a bank account, or prospective arrangements entailing no present commitment will not suffice, and neither will “simply signing contracts (which may be broken).”

It also blesses the obvious solution. A purchase conditioned on E-2 issuance can still qualify as an irrevocable investment where the funds or assets are held in escrow for release once the condition is met. That structure protects you commercially and satisfies the regulation at the same time, and it has to be negotiated into the purchase agreement.

Deal term four: who owns the buyer

The acquiring entity must be at least fifty percent owned by nationals of your treaty country who are not U.S. permanent residents.

A buyer I worked with had a broker who preferred equity to a commission. Ten percent, which sounded generous until we put it next to the U.S. citizen partner already holding forty-five. The buyer’s own stake landed at forty-five percent, and the enterprise no longer had treaty nationality. The fix was straightforward, because we caught it in the letter of intent. It would not have been straightforward after closing.

Model the post-closing cap table against the nationality requirement before it is papered. See Five Reasons Your Treaty Passport May Not Be Enough.

The diligence items that are also immigration evidence

• The lease. Assignable? Does the landlord consent? A business you cannot occupy is not real and operating.
• Licenses and permits. § 41.51(b)(8) requires the enterprise to meet applicable legal requirements for doing business in the jurisdiction. A liquor license, a professional license, or a permit that does not transfer is an immigration problem as well as a business one.
• Three years of financials and tax returns. These carry the marginality showing.
• Employee census. Not because a number is required, but because payroll evidences a real operating enterprise and supports the significant-economic-contribution route past marginality.
• A valuation. The FAM benchmarks purchase price to fair market value. An arm’s-length price supported by a valuation is much easier to defend than a friendly one that is not.

Why we do both halves

The four terms above are decided in the purchase agreement, the financing commitment, and the entity documents. An immigration lawyer who reviews the petition after closing can tell you the case is weak. He cannot tell you which clause caused it, and he cannot renegotiate a signed deal. We draft and negotiate the transaction alongside the petition, which is the whole reason to keep them in one office.

Immigration is federal. The purchase agreement, the entity, and the governance are governed by the law of the state of organization. We are licensed in Texas and Illinois. Elsewhere we work alongside local counsel.

Send us the letter of intent before you sign it. The financing structure and the asset-versus-stock decision are worth more to your petition than anything we can do afterward. Call or text 512.761.8479.

Read next: Franchises and the E-2 Visa · When Your Investment Is a Security · How Much Do You Have to Invest

One: the renewal interview

The standard on its face is workable. 9 FAM 402.9-4(C) provides that an applicant’s expression of an unequivocal intent to depart the United States when E status ends is normally sufficient, and that an E applicant does not have to keep a foreign residence he has no intention of abandoning. E is more forgiving on intent than most nonimmigrant categories.

But the same section continues: an applicant who is the beneficiary of an immigrant visa petition will need to satisfy the officer that the intent is to depart at the end of the authorized stay, and not to remain in order to adjust status.

For years that provision went largely untested, because so many E-2 renewals were processed without an interview. Since October 1, 2025, interview waivers no longer reach E-1 or E-2, and applicants are directed to their country of nationality or residence. Every renewal is now a live examination at which a pending or approved I-140 is a fair subject. The mechanics of that appointment are in Your E-2 Renewal Is an In-Person Interview Now.

Note what this does not mean. On the USCIS side, 8 C.F.R. § 214.2(e)(5) provides that an application for admission, change of status, or extension of stay in E classification may not be denied solely because a labor certification has been approved or an immigrant petition has been filed or approved. An immigrant petition is a fact you have to be able to explain consistently with the rest of the file. It is not a disqualifier, and it is treated differently at a consulate than at USCIS.

Two: the airport

Under 8 C.F.R. § 245.2(a)(4)(ii), the classifications whose holders may travel abroad while an I-485 is pending and return in that status without abandoning the adjustment application are H-1, H-4, L-1, L-2, K-3, K-4, and V. E-1 and E-2 are not among them.

That leaves two options when a funeral, a closing, or a supplier meeting requires travel, and both cost something.

A client’s father died in Ankara on a Tuesday. His I-485 had been pending eight weeks. He called me from the airport, and there was no answer I could give him that did not cost him something. He flew on advance parole, which was the right call, and his wife lost her work authorization for four months while the replacement documents were processed. Had we talked in advance, the file would have been built for consular processing instead, and the trip would have been a trip.

Neither option is a disaster if it was planned for. Both are if the ticket was booked first.

Three: your child’s twenty-first birthday

This is the one that sets the outer deadline on everything else, and families consistently discover it late.

The Child Status Protection Act does nothing for nonimmigrant status. A derivative child ages out of E-2 at twenty-one regardless of any pending petition. Our usual answer at that point is a change to F-1 if the child is studying, though H-1B, O-1, an independent E-2, or an immigrant petition can also fit, depending on the child.

CSPA protects only the child’s eligibility for the immigrant benefit, and it does so through a specific calculation:

• Take the child’s age when a visa becomes available.
• Subtract the time the immigrant petition was pending.
• The result is locked only if the child seeks to acquire permanent residence within one year of availability, by filing the I-485 or the DS-260.

For applications filed on or after August 15, 2025, USCIS runs that calculation using the Final Action Dates chart, replacing a 2023 policy that used whichever chart the applicant could file under and was often more generous. Applications pending before that date continue under the earlier guidance.

Run the calculation on a seventeen-year-old before you choose a category, not after. If it does not work, that fact should be steering the choice of category, not discovered inside one.

Two developments to watch

In May 2026 USCIS issued Policy Memorandum PM-602-0199, treating adjustment of status as a matter of discretion and applying immediately to pending applications. How much it changed is genuinely contested; see EB-5 Concurrent Filing for both readings. Separately, since August 5, 2026 USCIS officers may deny a benefit request outright without first issuing a request for evidence, reaching cases already pending.

Neither is aimed at treaty investors. Both mean a thin filing has less margin than it did a year ago.

How to sequence it

Decide adjustment versus consular processing at the beginning, not when the receipt notice arrives. If travel is unavoidable, consular processing may be the safer route. One departure, one interview, and no parole cycle that costs your family its status. If you adjust, plan to stay put. Either way, the children’s ages set the outer deadline and the rest of the schedule is built backward from there.

Bring us three things before you file anything: your renewal date, your children’s ages, and your travel calendar for the next two years. Call or text 512.761.8479.

Read next: Green Card Options for E-2 Business Owners · EB-5 Concurrent Filing

The road most owners never hear about

An owner came to me three years into a PERM. He had run the recruitment, survived an audit, and was waiting on a certification that would then need an I-140 and an I-485 behind it. He also still owned forty percent of the manufacturing company in Lisbon that he had left his brother to run, and that company had been supplying his Texas entity since it opened.

EB-1C requires no labor certification at all. He had qualified for it the entire time, and nobody had asked about Lisbon.

EB-1C, multinational manager or executive. If you still own or work for an operating company abroad and the U.S. entity has been doing business for at least a year, EB-1C requires no labor certification and is not subject to the bona fide job opportunity analysis below. For a treaty investor who kept the foreign company running, it is frequently the fastest route available, and it turns on a fact most intake conversations never reach.

EB-2 with a national interest waiver. NIW is a self-petition: no job offer, no PERM, no ability-to-pay test. For an owner whose entire problem is that the employer is himself, that structure is worth pricing before spending two years proving the job is open to U.S. workers. The standard tightened considerably after a January 2025 policy update and reported approval rates have fallen sharply, so it is not a free pass. It is a different set of obstacles, and often a better-matched set.

Why the PERM road is hard for an owner

Neither EB-3 nor standard EB-2 permits self-petition. Both require a bona fide job offer and an approved labor certification. Your company has to act as a genuine employer of you, and that triggers separate scrutiny at the Department of Labor and at USCIS.

At the Department of Labor

20 C.F.R. § 656.17(l) applies where the employer is a closely held corporation or partnership in which the sponsored worker has an ownership interest, where there is a familial relationship between the worker and the stockholders, officers, incorporators, or partners, or where the worker is one of a small number of employees. Read that list again. A typical treaty business satisfies all three.

Where it applies, the employer must be able to demonstrate a bona fide job opportunity, meaning the job is genuinely available to U.S. workers, and to document the formation papers, the officers and shareholders and their relationships to the worker, the company’s finances, and who actually holds hiring authority.

The governing BALCA authority is more encouraging than the regulation sounds. In Modular Container Systems, 1989-INA-228, decided en banc on July 16, 1991, the Board adopted a totality-of-the-circumstances test. Ownership is not a categorical bar, and certification can issue where the employer shows genuine independence and vitality not dependent on the worker’s financial contribution.

Decided the same day, Malone & Associates, 1990-INA-360, denied certification where the firm was founded and wholly owned by the sponsored worker and bore his name.

Two cases, one Board, one day, opposite results. And the losing one is the ordinary treaty-investor fact pattern: sole owner, small headcount, company named for the founder. If your business card and the company’s name are the same word, start from Malone and work back.

Practically, the owner should not conduct the recruitment or review the résumés, the job requirements must not be tailored to the owner’s own background, which is what sank Malone, and the recruitment has to be run in good faith with a real willingness to hire a qualified U.S. worker.

At USCIS

8 C.F.R. § 204.5(g)(2) requires the petitioner to establish a continuing ability to pay the offered wage from the priority date until the worker becomes a permanent resident, evidenced by annual reports, federal tax returns, or audited financial statements. Employers with 100 or more employees may substitute a financial officer’s statement, which almost no treaty business can use.

A totality analysis is available for a company reinvesting instead of showing profit, but it has to be documented with funding sources, growth trajectory, and profit potential. Young, thinly capitalized businesses are precisely the profile that fails a straight net-income test.

And the clock

As of August 7, 2026, DOL was reviewing PERM applications filed in September 2025, with an average analyst review time of about 372 calendar days. Prevailing wage determinations stood at April 2026 receipts for OEWS-based requests.

Add the mandatory recruitment and the quiet period, then the I-140, then the I-485. That is roughly two to two and a half years before you can even file for adjustment, and the priority date wait has not started. The monthly figures move. The length of the sequence does not.

A proposed DOL rule published March 27, 2026 would also raise prevailing wage levels substantially, moving the first level from roughly the 17th to the 34th percentile. It is proposed, not final. If it is finalized, it lands hardest on the small business already facing an ability-to-pay question.

Before you start, read the other half

Whichever road you take, an E-2 holder faces two structural problems in the transition that have nothing to do with the category: the renewal interview and international travel. See Three Things That Undo an E-2 Family’s Green Card Plan.

If you have held E-2 for three or more years, a thirty-minute call can tell you which of the three roads your facts support. Bring the foreign company, if there still is one. Call or text 512.761.8479.

Read next: Three Things That Undo an E-2 Family’s Green Card Plan · E-2 vs. EB-5

One: the company has a nationality too

This is the half of the question the list does not answer, and I watch it fail several times a year.

The business must be at least fifty percent owned by nationals of the treaty country. Owners who are U.S. lawful permanent residents do not count toward that fifty percent, and owners inside the United States must be maintaining E status. For the principal investor, the control requirement sits at 22 C.F.R. § 41.51(b)(11), satisfied by owning at least fifty percent or by holding operational control through a managerial position or other corporate device.

You can hold a qualifying passport and still put the company outside the category without touching your own eligibility. Give half the equity to a U.S. citizen partner. Bring in a brother who became a permanent resident last year. Let a broker take twenty percent instead of a fee. Each of those is a reasonable business decision and each one can end the case, and all of them get made at the cap table months before anyone talks to an immigration lawyer.

Two: a treaty country can still be under an entry restriction

Proclamation 10998, signed December 16, 2025 and effective January 1, 2026, fully suspends entry, immigrant and nonimmigrant alike, for nationals of nineteen countries.

Only one treaty country is on the full-suspension list: the Republic of the Congo. That is Congo-Brazzaville. The Democratic Republic of the Congo is a different country, a separate treaty country, and is not on the list. A Congo-Brazzaville national should expect an E-2 application to be refused while the suspension stands. The exceptions are narrow but real: lawful permanent residents, holders of visas issued before the effective date, dual nationals applying on the passport of a country that is not designated, and case-by-case national interest exceptions.

The partial list is where clients panic unnecessarily. A second group of countries is restricted only as to B-1/B-2, F, M, J, and immigrant visas. Senegal and Togo are both on that partial list and both are treaty countries, and their nationals remain eligible for E visas under the proclamation’s terms. I have had more than one conversation with an investor who abandoned a U.S. project because a headline said “travel ban” and named his country.

Read which categories are actually suspended. Note also that a proclamation of this type reaches visa issuance and entry, not a change or extension of status granted by USCIS to someone already here.

Three: some countries appear with an expiration date

Ecuador is the live one. E-2 is available to Ecuadorian nationals only for investments established or acquired before May 18, 2018, and grandfathered nationals are entitled to E-2 status until May 18, 2028.

That is under two years away. If you are Ecuadorian and holding an E-2 on a pre-2018 investment, your planning horizon is shorter than your visa validity suggests, and every alternative, whether EB-5, EB-2, or an employment-based path, takes longer than the time you have left. The clock is the whole case. Bolivia has a similar structure with a 2012 cutoff.

Four: a purchased passport is not automatically a treaty passport

Since the 2022 amendment to INA § 101(a)(15)(E), 8 U.S.C. § 1101(a)(15)(E), an applicant who acquired the relevant nationality through a financial investment, and who has not previously been granted E status, must have been domiciled in that country for a continuous period of not less than three years at some point before applying.

I see this most often with Grenada, Turkey, and the Caribbean programs. The passport arrives in months. The eligibility takes three years of actual residence. The requirement is in the statute itself, so if you have been told otherwise, ask to be shown the language that says so.

Dual nationals who hold a treaty nationality by birth or descent may generally apply on that nationality, which is often the simplest answer available.

Five: the post you planned on may have moved

Effective August 1, 2026, State realigned visa services across Africa, with twenty-five posts ceasing routine processing and twenty regional hubs absorbing the work for both nonimmigrant and immigrant visas, including petition-based cases. Separately, visa operations at Juba, Kinshasa, and Kampala were suspended in May 2026 during an Ebola outbreak. Confirm the operating status of a specific post before you build a timeline around it.

None of this is a reason to abandon a good business

It is a reason to finish the nationality question before you spend money on the investment question.

Before you sign a lease or a purchase agreement, we will run the full analysis: your passport, the cap table, the applicable proclamation, and the post you will actually use. It is the cheapest hour in an E-2 case. Call or text 512.761.8479.

Read next: E-2 Visa Requirements · Buying an Existing Business on an E-2

Get the source of funds tracker.

A one-page working document: every exhibit a source of funds file needs, with columns for who holds it, when you asked, when it arrived, and whether it has been translated. It is the sheet we work from, and it is the one clients actually use.

Two rules run through all of it

Everything in a foreign language needs a certified translation. Full document, separate signed certification, translator attesting to competence. The rule is at EB-5 Source of Funds.

Every document should exist because it answers a question an officer will ask, not because it was in a template. You must prove eligibility by a preponderance of the evidence, and the standard turns on quality rather than quantity. Four hundred pages of bank statements with no narrative connecting them is quantity. A forty-page trace with a cover memo explaining each transfer, cross-referenced to exhibits, is quality.

And one rule that decides why this is a pre-filing list. Under Matter of Izummi, 22 I&N Dec. 169 (AAO 1998), a petitioner must establish eligibility at the time of filing, and a petition “cannot be approved at a future date after the petitioner becomes eligible under a new set of facts.” A petitioner also “may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements.” You do not get to fix a structural problem later. If the entity is wrong, or the workers are misclassified, or the capital came from somewhere it should not have, that is decided before you file and not after.

Which file are you building?

The document sets are not the same, and a checklist that ignores the difference wastes months.

The last row is the point. Whichever route you choose, the source of funds file is the same size and takes the same months. Nothing about a regional center makes that part easier.

Section 1: identity and family

Do this first, and it takes ten minutes. The children’s dates of birth determine whether you are on a clock, and since August 15, 2025 the calculation that decides it is less forgiving than most published material says. See Will My Child Age Out?.

Section 2: lawful source of funds

INA 203(b)(5)(L) and USCIS Policy Manual Volume 6, Part G, Chapter 2 govern. Note the seven-year lookback for petitions filed on or after May 14, 2022.

Always:

By source type:

Salary and employment income. Employment contracts, pay records, employer letters on letterhead confirming role and compensation history, and bank records showing matching deposits.

Business profits or a business sale. Formation documents, ownership evidence, financial statements, board or shareholder resolutions authorising distributions, the purchase or sale agreement, the closing statement, and proof the proceeds landed in your account.

Sale of real property. Title chain, purchase contract, sale contract, closing statement, proof of receipt, and evidence of how you originally acquired the property. That last item is the one people forget and the one that generates the request for evidence.

Inheritance. Death certificate, will or probate or succession documentation, evidence of the estate’s composition, and evidence the decedent acquired the assets lawfully.

Gift. Executed gift instrument, and then the whole source of funds analysis again for the donor. Expect the inquiry to move one generation back.

Loan. Executed loan agreement with real terms, evidence of disbursement, and documentation of the lender’s lawful funds. Unsecured third-party loan proceeds count as capital.

Digital assets. Lawful source of the original money used to purchase, complete exchange and wallet history, know-your-customer records from a regulated exchange, conversion records, and tax reporting of gains.

Section 3: path of funds

Source is where the money came from. Path is how it reached the enterprise’s account. They are graded separately, and path is where more files fail than people expect.

• Bank statements for every account the money touched, covering the full period, not selected months
• Wire transfer confirmations for each leg, with SWIFT records where available
• Currency exchange records and the applicable rate for each conversion
• Foreign exchange quota documentation for each remitter where currency controls apply, plus that remitter’s own source documentation
• An explanation, in writing, for every deposit that is not obviously accounted for. Unexplained deposits are the single most common request-for-evidence trigger in the trace.
• A funds flow chart. One page, boxes and arrows, exhibit numbers on each leg. Required by no regulation and the most valuable page in the file.

The document nobody asks for and everyone should prepare: a source and path memorandum. A narrative, ten to twenty pages, telling the story in order and citing the exhibit for each assertion. The officer’s job becomes verification instead of reconstruction. Files that read well get approved more often, and this is why.

Section 4: the new commercial enterprise

Tracking 8 C.F.R. 204.6(j)(1) and (j)(2).

For regional center cases, add the approved regional center designation and the I-956F project approval or evidence of its filing.

Section 5: the business plan and job creation

For a direct investment the business plan is the case, and the standard is Matter of Ho, 22 I&N Dec. 206 (AAO 1998), which requires a market analysis, permits and licenses, the production process where relevant, executed contracts, the marketing strategy, organizational structure and personnel experience, staffing requirements with a hiring timetable and job descriptions, and projections with their objective bases, and which says that above all “the business plan must be credible.”

Job creation exhibits, per 8 C.F.R. 204.6(j)(4): Forms I-9 for each qualifying employee; payroll records and quarterly wage reports; federal and state employment tax filings; job descriptions confirming positions require at least 35 hours a week; evidence of each employee’s qualifying status; for regional center cases the economic impact analysis and the model used; and for a troubled business, pre-investment employment levels and evidence of maintenance.

What is not on this list, deliberately: anyone in nonimmigrant status, and any independent contractor. Neither counts.

Section 6: the personal immigration filings

• Form I-526E, or Form I-526 for a standalone direct investment, with the full exhibit set
• If concurrently filing and a number is available: Forms I-485, I-765, I-131, medical examinations on Form I-693, and civil documents for each family member
• If consular processing: DS-260, civil documents, police certificates, and the medical exam at the designated facility
• Later, Form I-829 within the ninety days immediately preceding the second anniversary of conditional residence. That filing has its own evidence list, and it is not the same one.

Check current form editions on the day you file. USCIS rejects outdated editions and they change without much notice.

Section 7: what your accountant needs, in parallel

This is not tax advice. But four of these have deadlines and one of them has a cliff.

• FinCEN Form 114 (FBAR), for foreign financial accounts exceeding $10,000 in aggregate at any point in the year
• IRS Form 8938, for specified foreign financial assets, thresholds beginning at $50,000
• IRS Form 3520, for gifts from a nonresident individual or foreign estate exceeding $100,000
• FinCEN Form 105, for physically transporting more than $10,000 across the border

And the part that is not a form. Your residency starting date under IRC 7701(b) is generally the first day you are present as a lawful permanent resident, and from that date you are taxed on worldwide income. Almost everything useful a cross-border tax advisor can do happens before that date, and some of it cannot be done afterward at any price.

The order to do this in

1. Children’s birth certificates and passports.Ten minutes, and it tells you whether you are on a clock.
2. The source and path trace.Months. Start here, not with project selection.
3. Cross-border tax consultation.Before money moves and long before the visa issues.
4. Project or business selection.In parallel with 2, never after it.
5. Business plan, for a direct case, once the business is chosen.
6. Assemble, translate, index, and write the memorandum.
7. File.

Most people do this list in roughly the reverse order, choose a project first, and discover in month four that the money cannot be documented the way they assumed.

I ask for two things at the first meeting: the children’s birth certificates and a one-paragraph description of where the money came from. That is usually enough to know whether the case has a timing problem, a documentation problem, both, or neither. It has never once taken more than twenty minutes, and it has more than once saved somebody a year.

The cheapest hour in an investor visa case is the first one.

Before you wire anything, send us the funds story and the family’s dates of birth. We will tell you what the file is going to require and how long it will take, while you can still change the plan.

Schedule a call · Send us your situation · Call or text 512.761.8479

Client scenarios in this post are composites drawn from multiple matters, with identifying facts changed. They are illustrations, not predictions. No outcome is typical and none is promised.

This post is general information about immigration law. It is not investment advice, securities advice, or tax advice, and we are not your tax advisors. Bring in independent financial and cross-border tax counsel before money moves.

Kyle M. Kinzy is the principal of Kinzy Law, in West Lake Hills, Texas. He has practiced immigration law since 1998 and is licensed in Texas and Illinois. His practice combines immigration with business and transactional work, which is the combination most investor visa cases actually require: the visa question and the deal question are usually the same question, and they are usually answered by the same document.

Not certified by the Texas Board of Legal Specialization.

This page is reviewed quarterly. Last reviewed September 1, 2026.

Which of these three is you?

The rest of this page is three worked situations. Start with the one that matches.

The two dates on the calendar

September 30, 2026, and what it actually protects

The Regional Center Program is authorized through September 30, 2027. If it is not reauthorized after that, a separate provision protects petitions already filed.

That provision is INA 203(b)(5)(S), “Protection from expired legislation,” codified at 8 U.S.C. 1153(b)(5)(S). It reads:

“Notwithstanding the expiration of legislation authorizing the regional center program under subparagraph (E), the Secretary of Homeland Security, (i) shall continue processing petitions under sections 1154(a)(1)(H) and 1186b of this title based on an investment in a new commercial enterprise associated with a regional center that were filed on or before September 30, 2026; (ii) may not deny a petition described in clause (i) based on the expiration of such legislation; and (iii) may not suspend or terminate the allocation of visas to the beneficiaries of approved petitions described in clause (i).”

Three things in that text are worth reading twice, because most summaries leave them out.

It protects petitions filed, not money committed. “Filed on or before September 30, 2026.” An investor who has selected a project, wired funds into escrow, and not filed is outside it. The filing is the act that counts.

It runs all the way through removal of conditions. The two statutes named are 8 U.S.C. 1154(a)(1)(H), which is the immigrant investor petition, and 8 U.S.C. 1186b, which is removal of conditions. So a protected investor is protected at the I-829 as well as at the I-526E. That is a more complete protection than the one usually described.

The date is one year before the sunset, and nobody has a good explanation for the gap. Authorization runs to September 30, 2027. Protection covers filings through September 30, 2026. Practitioners have flagged that year-long gap since the statute was enacted and there is no clean legislative history accounting for it. Read it as drafted: if you want the protection, the date that matters to you is 2026.

If you intend to file a regional center petition and want this protection, that deadline is roughly five weeks from the date of this post.

January 1, 2027, and the investment amounts

INA 203(b)(5)(C)(iii) requires the minimum investment amounts to be adjusted for inflation every five years, and the first adjustment is January 1, 2027. The statute says the adjustment applies “for petitions filed on or after the effective date of each adjustment,” based on the cumulative change in the unadjusted consumer price index.

Current amounts are $800,000 for a targeted employment area and $1,050,000 otherwise.

Separately, the proposed rule published July 2, 2026 at 91 Fed. Reg. 40676 would add a higher tier for high-employment areas, reported at $1.4 million. That is a proposal and it is not law. The statutory indexation, by contrast, is scheduled and automatic.

What none of this means. It does not mean file something incomplete to beat a date. A petition filed to meet a deadline and denied on source of funds has bought you nothing and cost you the fee. The deadlines change the schedule you should be working on. They do not change the standard.

What actually determines timing

1. Your chargeability.Which country’s per-country limit applies. Usually your country of birth, not your citizenship, with a cross-chargeability rule that lets a spouse borrow the other spouse’s country in some cases.
2. Your children’s ages.A derivative child must be under 21, and the Child Status Protection Act allows the time your petition was pending to be subtracted from the child’s age. The rules on this changed on August 15, 2025 and most published material has not caught up. See Will My Child Age Out?, which is the page to read if a child is anywhere near 21.
3. Which category you can file into.INA 203(b)(5)(B)(i) reserves 20 percent of visas for rural projects, 10 percent for high-unemployment areas, and 2 percent for infrastructure. These set-asides have been Current for every country of chargeability, including China and India, while the unreserved category has not.
4. How fast the category is adjudicated.Not the same question as visa availability, and often the more important one. See below.
5. Whether money needs to move now or later.Source of funds preparation takes months. See EB-5 Source of Funds.

Where the visa numbers stand

As of the September 2026 Visa Bulletin:

Three things follow.

The set-asides are the story. For an investor chargeable to India or China, the difference between a rural or high-unemployment project and an unreserved project is not a preference. It is the difference between a number available now and a number unavailable or nine years back.

India unreserved is not merely slow, it is closed. The Department of State made the category unavailable for the remainder of fiscal 2026, through September 30, 2026. Unavailable is a different thing from a distant date, and it matters most for a child’s age. A Child Status Protection Act calculation needs a date on which a visa became available, and where the chart shows U there is no such date.

Which chart controls, and for what. USCIS moved employment-based adjustment filings to the Final Action Dates chart in mid-2026, which is why the dates-for-filing row above is cold comfort for an India-chargeable unreserved investor. And since August 15, 2025 the Final Action Dates chart is also the chart used for the CSPA age calculation. One chart, two consequences. Confirm which chart USCIS is honoring for the month you intend to file. It is announced monthly.

If a child in your family is within four years of 21, the table above is the most important thing on this page and it changes monthly. [Send us their date of birth] and we will tell you where you actually stand.

Rural is not just a visa category, it is a queue

This is the planning fact most often left out, and for many investors it matters more than the visa bulletin.

INA 203(b)(5)(E)(ii)(I) directs that the Secretary “shall prioritize the processing and adjudication of petitions for rural areas.” That is a statutory direction, not a service aspiration.

It is happening. Data obtained under the Freedom of Information Act covering April 2022 through July 2025, across more than thirteen thousand adjudicated petitions, shows rural petitions making up roughly 81 percent of adjudications against roughly 9 percent for high-unemployment.

Reported adjudication times reflect it. Rural I-526E petitions have been reported in the range of eleven to seventeen months, against roughly three years or more for unreserved petitions. Those are aggregator figures and they move, so treat them as orders of magnitude and see How Long Does EB-5 Take? for the caveats.

The consequence. For an investor whose real constraint is a child’s age, a rural project is faster on two independent axes: the visa number is available, and the petition is adjudicated sooner. Nothing else in EB-5 offers that combination.

Example one: the Indian software executive with a fifteen-year-old

Facts. Forty-four, born in India, in the United States on an H-1B, EB-2 India priority date from 2013 going nowhere useful. Married, children aged fifteen and eleven. Roughly $1.1 million available after selling a property in Bengaluru and taking a documented family loan. He has been told to wait for the EB-2 line to move.

The answer: file now, into a rural project, and treat the fifteen-year-old as the deadline.

Start with the child, because she decides everything else. Under CSPA her age at the point a visa becomes available is reduced by the days the petition was pending. Since August 15, 2025 that availability is measured on the Final Action Dates chart, and for India that chart currently reads: unreserved unavailable, set-asides Current.

So the two routes are not close. An unreserved petition gives her no availability date at all right now, which means no calculation and no protection. A rural or high-unemployment petition puts her in a category that is Current, where a number is available on approval and the pending time works in her favor.

Then add the queue. Rural petitions are adjudicated on the priority track. That shortens the interval between filing and the moment her age is fixed, which is the interval during which everything can go wrong.

What we would do. Start the funds trace immediately, because the family loan and the property sale are both documentation projects. Target a rural project specifically, not merely a set-aside. File the I-526E, and file the I-485s concurrently as soon as a number is available and the funds record supports it. Concurrent filing brings employment authorization and advance parole for the whole family, which for a household living on one H-1B decouples their status from one employer. Do not wait for EB-2.

The eleven-year-old. She is fine. The fifteen-year-old is the constraint, and every date in the plan is built backward from her.

The caution we would give in writing. A category that is Current today can retrogress. A child’s age is not conclusively fixed simply because the family filed while the chart was green. That risk is real, it is not hypothetical, and it is another argument for the faster queue rather than the slower one. See Will My Child Age Out?.

Example two: the Brazilian manufacturer who should slow down

Facts. Fifty-two, Brazilian citizen and Brazilian-born, sold a plastics business eighteen months ago, roughly $2 million liquid. No children under 21. Outside the United States, visiting on a B-1/B-2 a few times a year. He wants to file “before the deadline” because a project promoter told him September 30 is the last chance.

The answer: he is not on either deadline the way he was told, and rushing costs him more than waiting.

Start with the numbers. Brazil is chargeable to “all other countries,” which is Current across the board, unreserved and set-asides alike. Nothing about the queue is pressuring him. He has no child near 21. Two of the three variables that matter are neutral.

Now the deadlines. INA 203(b)(5)(S) protects regional center petitions. If he invests directly, in a business he runs, the September 2026 date does not apply to him at all, because there is no regional center in his structure and no program authorization to expire. If he does want a regional center project, the date is real and the question becomes whether he can build a defensible source of funds file in five weeks. He sold a company. That means purchase agreements, closing statements, corporate records, seven years of Brazilian tax filings, and certified translations of all of it.

The January 1, 2027 indexation is the deadline that actually applies to him, and it is four months out, not five weeks.

What we would do. Take the autumn to build the file properly and decide direct against regional center on the merits rather than on a promoter’s calendar. If regional center wins on the merits and the file is not ready by September 30, weigh the statutory protection against the cost of a thin petition. Section (S) protects a petition from a program lapse. It does not protect a petition from being denied on its own merits.

The general point. A deadline is only your deadline if the thing it governs is the thing you are doing. Ask which program, which date, and whether either applies to your facts. I have had this conversation more times than any other in this practice, and in most of them the honest answer was that the person on the phone had five months rather than five weeks, and had been told otherwise by someone who was paid on the outcome.

Example three: the Chinese investor whose child turns twenty-one in fourteen months

Facts. Chinese national, born in China. Daughter turns 21 in fourteen months. Capital is available but sits partly in a company account and partly with relatives who used their own foreign exchange quotas to move money abroad two years ago. He has been “getting organized” for a year.

The answer: this is an emergency, and the emergency is the funds trace, not the filing.

Unreserved EB-5 for China sits at a December 1, 2016 final action date. That is not a queue you can plan a child’s future around. The set-asides are Current for China, so a rural project is the only realistic structure, and it is also the faster queue.

Now the child. Fourteen months. Her CSPA age is her age when a visa becomes available, on the Final Action Dates chart, reduced by the days the petition was pending. With a set-aside Current, a number is available at approval, so the pending period is the entire cushion. Filing sooner directly lengthens it. Every week spent not filing is a week that does not count in her favor.

But he cannot file until the funds record exists, and his is the hardest kind. Money moved through relatives’ quotas two years ago, which means each relative is a person who transferred funds on his behalf and must be identified under INA 203(b)(5)(L)(ii), and each relative’s own funds must be lawfully sourced. Two years after the fact, with no contemporaneous documentation, that is a reconstruction project. See Source of Funds for Chinese Investors.

What we would do. Everything in parallel and nothing in sequence. Funds trace, relative-by-relative documentation, certified translations, and project selection all start the same week. Where a relative’s records are unrecoverable, restructure the contribution rather than paper over it.

What we would tell him plainly. The year he spent getting organized was the expensive year. Not because a deadline passed, but because his daughter got a year older while the file did not get built.

So when should you apply?

Apply now if a child is within a few years of 21; you are chargeable to India or China and can use a set-aside; your funds are documented or documentable in weeks; you want a regional center project and want the protection of section (S); or you would rather invest at $800,000 than at whatever the indexed figure turns out to be.

Apply later if your source of funds record is genuinely not ready, no child is near 21, and you are chargeable to a country where the category is Current. The cost of waiting is the indexation. The cost of rushing is a denial.

Do not apply at all yet if you have not decided between direct and regional center, or you have not had the cross-border tax conversation, or the capital is not actually yours to invest.

The thing nobody tells you. The filing date is not the variable you control. The readiness date is. Almost every EB-5 case I have handled that ran late ran late for the same reason, and it was never project selection.

The cheapest hour in an investor visa case is the first one.

Send us three things and we will tell you your date: your country of birth, your children’s dates of birth, and a one-paragraph description of where the money came from. That is enough for a first read.

Schedule a call · Send us your situation · Call or text 512.761.8479

Read next: Will My Child Age Out? · The EB-5 Document Checklist · EB-5 Source of Funds

Client scenarios in this post are composites drawn from multiple matters, with identifying facts changed. They are illustrations, not predictions. No outcome is typical and none is promised.

This post is general information about immigration law. It is not investment advice, securities advice, or tax advice, and we are not your tax advisors. Bring in independent financial and cross-border tax counsel before money moves.

Kyle M. Kinzy is the principal of Kinzy Law, in West Lake Hills, Texas. He has practiced immigration law since 1998 and is licensed in Texas and Illinois. His practice combines immigration with business and transactional work, which is the combination most investor visa cases actually require: the visa question and the deal question are usually the same question, and they are usually answered by the same document.

Not certified by the Texas Board of Legal Specialization.

This page is reviewed monthly on release of the Visa Bulletin. Last reviewed August 25, 2026.

Consider a composite of situations I encounter regularly. A founder from a treaty country forms a Texas LLC through a ninety-nine-dollar filing website in an afternoon. For convenience, ownership is split casually with a U.S.-based cousin who will “help with the bank account.” Capital arrives in a series of informal transfers from family. The business is genuine; inventory is ordered and space is leased. Then the founder applies for an investor visa, and the afternoon’s shortcuts surface one by one.

The casual ownership split matters, because treaty-investor eligibility depends on the nationality of those who own and control the company; give away too much to accommodate a relative, and the company may no longer qualify as an investment by a treaty national. The informal transfers matter, because the invested funds must be documented and traceable, and “family sent it” is not a paper trail. The missing books, payroll, and business plan matter, because the petition must show a real operating enterprise that the investor will direct and develop, not just a certificate of formation.

None of these problems is exotic; every one is avoidable with sequencing. Design the ownership structure around the visa requirements first. Document every dollar of capital as it moves, not months later. Set up the books, the payroll, and the corporate records so the company the government examines matches the company the petition describes. This is what an integrated immigration-and-business practice is for. Where another country’s law is involved, I coordinate with foreign counsel so nothing falls between the two systems. Because immigration is federal, I can assist wherever in the world you are starting from.

If you are a foreign owner planning a U.S. business, sequence the company and the visa as one project. Call or text 512.761.8479 before you file the formation papers.

Mixed-status families add another layer. U.S. citizen heirs may receive different tax treatment than non-citizen heirs, and non-resident heirs may face withholding on certain U.S. assets. Beneficiary designations and trust structures can be tailored to these realities, but only if the plan acknowledges them in the first place. This is one of the clearest examples of where a combined immigration and estate practice benefits a family: the immigration facts drive the estate design.

I coordinate with foreign counsel where a matter requires expertise in another country’s law, so the plan works on both sides of the border.

If your family, your accounts, or your property cross a border, your estate plan should be built by someone who thinks across it. Call or text 512.761.8479.