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

First, a negative you can rely on

Any page telling you the Foreign Affairs Manual has franchise rules is wrong. Search 9 FAM 402.9 for “franchise,” “franchisor,” or “franchisee” and you will find nothing. The same is true of the regulation.

Good news and bad. A franchise is not disfavored. But the franchisor’s brand does nothing for you at the consulate. Your petition has to prove what any other E-2 petition proves: capital at risk and irrevocably committed, a real and active enterprise, an investment substantial in proportion to the cost, a business that is not marginal, and your own development and direction of it. See The Nine E-2 Requirements.

What a franchise is, legally

Under the FTC Franchise Rule, 16 C.F.R. § 436.1(h), three elements have to be present: the right to operate a business identified with the franchisor’s trademark, or to sell goods or services associated with it; significant control or significant assistance from the franchisor over your method of operation; and a required payment as a condition of obtaining or commencing the franchise.

The disclosure clock, and why a visa deadline is no reason to compress it

Fourteen calendar days. Under § 436.2(a), the franchisor must give you the current disclosure document at least fourteen calendar days before you sign any binding agreement with, or make any payment to, the franchisor or an affiliate.

Seven calendar days for a revised agreement, under § 436.2(b), where the franchisor unilaterally and materially alters the basic franchise or related agreements. Changes arising from negotiations you initiated do not trigger it, which matters if you are negotiating terms through counsel.

Do not let a broker compress those periods because your visa timeline is tight. The clock is a federal requirement, and a rushed signature is exactly what produces the deal terms that break a petition.

Which Items carry which part of the petition

Item 7 is not the denominator

This is the most common mistake in franchise E-2 filings.

Item 7 is the franchisor’s estimated initial investment, published as a range. The E-2 denominator for a new business is “the actual cost needed to establish such a business to the point of being operational,” proved by invoices, contracts, appraisals, and audits. Item 7 corroborates that figure. It does not substitute for it.

An officer comparing your claimed investment against an Item 7 range you never tracked with real invoices is an officer writing a request for evidence.

Item 19 is optional, and that is a real problem

The Franchise Rule permits a franchisor to make financial performance representations. It does not require them. A franchisor that declines has to say so in the FDD, in words to the effect that it makes no representations about future or past financial performance and does not authorize its representatives to make them.

Where a substantive Item 19 exists, you have franchisor-substantiated unit economics, which is far stronger support for a five-year marginality projection than a self-serving pro forma. You are also entitled under § 436.9(d) to request the franchisor’s written substantiation for it, and that substantiation makes excellent supporting evidence.

Where Item 19 is blank, you build the projection from other sources: Item 7 ranges, Item 20 outlet and closure data, comparable-market analysis, and interviews with existing franchisees whose contact details Item 20 requires the franchisor to disclose.

Where franchise law and immigration law collide

If an earnings claim is not in Item 19, it does not go in your business plan.

Under § 436.9(c), a franchise seller may not disseminate a financial performance representation unless the franchisor has a reasonable basis and written substantiation at the time it is made and the representation appears in Item 19. Under § 436.9(a), no claim may contradict the required disclosures. And under § 436.9(h), a franchisor cannot make you waive reliance on the disclosure document.

So when a broker tells you verbally what “a typical unit earns” for a system whose Item 19 is blank, that statement is very likely a Franchise Rule violation by the seller. It is also radioactive as immigration evidence. Building a marginality projection on it puts an unsubstantiated third-party earnings claim in front of a consular officer, in a document you signed.

I have seen the request for evidence that results. A client’s business plan projected $410,000 in year-three revenue, a figure his broker had given him over coffee and which appeared nowhere in the FDD. The officer asked for the source. There was no source. Rebuilding the projection from Item 20 closure data and three franchisee interviews took six weeks and produced a lower number that held up.

That collision is why the franchise review and the petition should be done by the same office.

Where you have to register, and where you do not

Texas is not a franchise registration state. It regulates through the Business Opportunity Act, Tex. Bus. & Com. Code ch. 51, and franchises are exempt under § 51.003(b)(8) if the franchisor materially complies with the FTC Rule and files a short notice with the Secretary of State before offering or selling. No state agency reviews or registers the FDD, and there is no pre-sale approval.

Illinois is a registration state. Under the Illinois Franchise Disclosure Act of 1987, 815 ILCS 705/10, a franchisor may not sell or offer a franchise in Illinois to an Illinois-domiciled franchisee, or where the offer is made or accepted in Illinois and the business will be located there, unless it has registered with the Administrator. Registration becomes effective on the twenty-first day after filing absent a denial, and franchisors must file annually, no later than one business day before expiration, which falls 120 days after the franchisor’s fiscal year end.

Confirm the franchisor’s registration status in the state where you will operate. A franchisor that cannot lawfully sell to you in Illinois is not a timing problem you can negotiate around.

What is new

The FTC’s inflation-adjusted exemption thresholds rose on July 12, 2024: the minimum payment exemption to $735, the large franchise investment exemption to $1,469,600, and the large franchisee exemption to $7,348,000. The same day, the FTC issued a policy statement on franchisor contract provisions and staff guidance stating that franchisors cannot lawfully impose and collect fees that were not previously disclosed.

And on March 18, 2026, the FTC secured a stipulated order against Xponential Fitness with $17 million in consumer redress, which the agency described as the most redress in its history for an alleged Franchise Rule violation. The allegations included misrepresenting how long studios took to open, failing to disclose material litigation and bankruptcy involving executives, and misreporting information about franchisees whose studios had ceased operating.

Every one of those categories is something an E-2 applicant would have relied on in a business plan.

One thing nobody can tell you

No government agency publishes data on how many E-2 visas involve franchise investments. The State Department reports E-2 issuances only by nationality and post, and no franchise regulator tracks purchaser immigration status. Any specific figure you encounter on this point is an estimate, not a statistic.

Send us the FDD before the fourteen days run. We read it for the franchise terms and for what the petition will need from it. Those are two different reviews, and most buyers get them from two different offices, or from none. Call or text 512.761.8479.

Read next: Buying an Existing Business on an E-2 · How Much Do You Have to Invest · The Nine E-2 Requirements

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

If you hold a treaty passport, want to run the business yourself, and can move quickly, E-2 usually wins on speed and cost. If your children are approaching twenty-one, or your nationality has no treaty, or you want permanence instead of a renewal cycle, EB-5 answers a question E-2 cannot.

Many investors end up doing both, in that order.

The comparison, and the two rows that decide most cases

The two rows that decide most cases are nationality and children.

Four questions

1. Do you hold a treaty passport?If not, E-2 is off the table unless you can acquire treaty nationality, and a passport acquired by investment carries a three-year prior-domicile requirement for a first-time E applicant. See Five Reasons Your Treaty Passport May Not Be Enough.
2. How old are your children?This is the question families underweight and the one that most often forces the answer. A child in E-2 status ages out at twenty-one regardless of anything else, and the Child Status Protection Act does not protect nonimmigrant status. EB-5 does protect the child’s eligibility for the green card, and where a reserved category is current, a concurrent filing can fix the calculation quickly. If you have a seventeen-year-old, run the arithmetic before you choose.
3. Do you want to run the business?E-2 requires it. An EB-5 regional center investment does not. If your capital is looking for a return instead of a job, EB-5 fits the intention and E-2 does not fit it at all.
4. How much capital, and how fast?E-2 has no floor, which makes it the only realistic investor category below roughly half a million dollars. It is also dramatically faster. EB-5 buys permanence that E-2 never delivers.

The sequence most of my clients actually use

Start on E-2, because it is fast and it lets the business begin operating. Then, once the business is established and the family is settled, convert to permanent residence through EB-5, EB-1C, a national interest waiver, or PERM. Green Card Options for E-2 Business Owners covers those routes.

Two cautions on that sequence. E-2 is not a dual intent category, so beginning an immigrant process changes what happens at your next renewal interview. And E-1 and E-2 holders cannot travel abroad with a pending adjustment application and return in status. Both are manageable and both have to be scheduled. See Three Things That Undo an E-2 Family’s Green Card Plan.

Two dated facts worth knowing right now

As of August 2026. EB-5’s reserved categories, rural at twenty percent, high unemployment at ten percent, and infrastructure at two percent, have been current for every country all fiscal year, while the unreserved category went unavailable for India from June 10, 2026 and sat at December 1, 2016 for mainland China. That gap is the practical case for a set-aside project. See EB-5 Concurrent Filing.

And a regional center petition filed on or before September 30, 2026 is protected by statute from a later lapse in program authorization. See The September 30, 2026 Grandfathering Deadline. Direct EB-5 has no such deadline.

The right comparison is not the generic one. It is yours. Send us your nationality, your children’s ages, your capital range, and whether you want to run the business. Call or text 512.761.8479.

Read next: E-2 Visa Requirements · Green Card Options for E-2 Business Owners

Anyone quoting you a floor of $100,000 or $200,000 is quoting a practice rumor, not a rule.

The proportionality test, in the government’s own words

9 FAM 402.9-6(D):

The proportionality test determines whether an investment is substantial by weighing the amount of qualifying funds invested against the cost of the business. If the two figures are the same, then the investor has invested 100 percent of the needed funds in the business; such an investment is substantial. Most cases involve lesser percentages. The proportionality test can best be understood as a sort of inverted sliding scale. The lower the cost of the business the higher a percentage of investment is required. On the other hand, a highly expensive business would require a lower percentage of qualifying investment. There are no bright line percentages that exist for an investment to be considered substantial. Thus, investments constituting 100 percent of the total cost would normally qualify for a business requiring a startup cost of $100,000, for example. At the other extreme, an investment of $10 million in a $100 million business may be considered substantial, based on the sheer magnitude of the investment itself.

And the sentence that should end the myth of a floor:

If all the other requirements for E-2 status are met as described in 9 FAM 402.9-6, the cost of the business per se is not independently relevant or determinative of qualification for E-2 status.

What goes in the denominator

The test is a fraction. Your qualifying capital over the cost of the business. The denominator is defined differently depending on what you are doing.

Buying an established business. The cost “is generally its purchase price, which is normally the fair market value.”

Creating a new business. The cost is “the actual cost needed to establish such a business to the point of being operational,” which “can usually be determined by combining the cost of the assets the investor has already purchased with the cost estimates for the procurement of additional assets needed to run the business.”

The FAM names the proof it wants: invoices or contracts for substantial purchases of equipment and inventory, appraisals of market value of land, buildings, equipment and machinery, accounting audits, and records filed with government authorities.

Note what that means for a franchise. The franchisor’s Item 7 “Estimated Initial Investment” is a published range and a useful benchmark, but it is evidence of the denominator, not the denominator itself. See Franchises and the E-2 Visa.

What goes in the numerator, and where deals fall apart

Only capital that is genuinely yours and genuinely at risk. The regulation requires the investor’s “unsecured personal business capital or capital secured by personal assets.” A loan secured by the assets of the business you are buying does not count, because you have not put anything of your own at risk. And adding personal collateral alongside business collateral does not fix it. Equipment and inventory on hand count. Leases count only in a limited monthly amount. Intangible property counts to the extent its value is reasonably determinable.

This is where an otherwise fine deal falls apart. A client tells me he is putting $400,000 into a business. We trace it, and $250,000 turns out to be an acquisition loan collateralized by the business itself. The numerator is $150,000, not $400,000, and the ratio no longer works.

The trap on the other side

Investing a small amount is a substantiality problem. Investing in a business too small to support you is a separate marginality problem, and solving one does not solve the other.

Take a $60,000 dry cleaner bought outright with $60,000 of your own savings. Substantiality is perfect: one hundred percent proportional, no debt, everything at risk. Now the officer asks the second question. The shop nets $38,000 a year, you are the only employee, and the projection you filed shows the same $38,000 in year five. That is a minimal living for a family of four, there is no economic contribution beyond your own household, and the case fails on marginality even though the money was flawless.

What would have saved it is in the regulation’s second sentence: a credible five-year plan showing either income above a minimal living or a significant economic contribution. Two additional locations. Three employees by year three. A wholesale contract with a hotel. Those are business facts before they are immigration facts, and they have to exist before the petition, not in it.

The two tests pull in opposite directions for small businesses, which is why cheap E-2 cases are harder than expensive ones instead of easier.

So what should you plan on?

The useful question is not “how much” but “how much relative to what.”

What I can tell you is what the number has to survive. It has to be traceable to a lawful source, documented account by account. It has to be at risk in a form the regulation recognizes. It has to be irrevocably committed instead of sitting in an account waiting for a visa. And it has to sit alongside a plan that answers marginality.

Those four constraints decide more cases than the size of the number does.

Tell us the business you are looking at and the money you can commit, and we will run the proportionality and marginality analysis before you make an offer. Getting this wrong is usually not a denial. It is usually eighteen months and a purchase you cannot undo. Call or text 512.761.8479.

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

Here are the nine.

1. You are a national of a treaty country.
2. The business is at least fifty percent owned by treaty-country nationals.
3. You have invested, or are actively investing, capital that is genuinely at risk.
4. That capital is irrevocably committed.
5. The business is real and operating, not a shell.
6. The investment is substantial in proportion to what the business costs.
7. The business is not marginal.
8. You are coming to develop and direct it.
9. You intend to depart when E-2 status ends.

The rest of this post takes them one at a time.

The regulation, in one paragraph

22 C.F.R. § 41.51(b)(1) states the test:

An alien is classifiable as a nonimmigrant treaty investor (E-2) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(E)(ii) and that the alien: (i) Has invested or is actively in the process of investing a substantial amount of capital in bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living; and (ii) Is seeking entry solely to develop and direct the enterprise; and (iii) Intends to depart from the United States upon the termination of E-2 status.

Each defined term in that sentence has a section below.

Nationality, twice over

Yours. You must hold the nationality of a country with a qualifying treaty. Dual nationals may generally apply on the treaty nationality. A passport acquired through a citizenship-by-investment program carries a three-year prior-domicile requirement for a first-time E applicant. See Five Reasons Your Treaty Passport May Not Be Enough.

The company’s. At least fifty percent must be owned by treaty-country nationals who are not U.S. lawful permanent residents, and who are maintaining E status if they are in the United States.

What counts as “invested”

22 C.F.R. § 41.51(b)(7) defines investment as placing capital at risk in the commercial sense with the objective of generating a profit. Three requirements follow, and each of them fails cases.

Possession and control. You must be in possession of and have control over the capital.

Subject to loss. The capital must be subject to partial or total loss if investment fortunes reverse. Which is why where the money came from matters so much:

Such investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets.

A conventional SBA 7(a) acquisition loan is typically secured in part by business assets. That will cost you most of your numerator.

Irrevocably committed. Funds must be committed, and the commitment must be real and irrevocable. Sitting in a bank account is not enough. Signing contracts that could be broken is not enough. The Foreign Affairs Manual is blunt: mere intent to invest, uncommitted funds, or prospective arrangements entailing no present commitment will not suffice. It does bless the obvious solution, an escrow conditioned on visa issuance, which can still qualify as irrevocable.

What else counts. Equipment and inventory on hand. Goods and machinery shipped to the United States for business use. Intangible and intellectual property to the extent value is reasonably determinable. Leases and rents count only in a limited amount, generally the funds devoted to that item in a given month, so a ten-year lease does not contribute ten years of rent to your total.

“Bona fide enterprise” includes your business license

22 C.F.R. § 41.51(b)(8):

The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity for profit and must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.

Read the last clause. Licenses, registrations, permits, and the local requirements for your particular business are part of the immigration test, not a separate errand for later.

I once had a case where everything else was clean. The money was traced, the lease was signed, the equipment was on the floor, and the county had not transferred the food service permit to the new entity because the application listed the wrong owner name. The business was not legally operating, so on the day of the interview it was not a bona fide enterprise, whatever the bank statements showed. The permit took nine days. The visa took another four months.

“Substantial” is a ratio, not a number

There is no minimum dollar figure. The test is proportional, on what the Foreign Affairs Manual describes as an inverted sliding scale: the lower the cost of the business, the higher the percentage of it your investment has to represent. That question has its own post: How Much Do You Have to Invest for an E-2 Visa?

“Not marginal” has two escape routes, and most summaries mention one

22 C.F.R. § 41.51(b)(10):

A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. An enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future capacity should generally be realizable within five years from the date the alien commences normal business activity of the enterprise.

Read the second sentence. It is a separate route, not a restatement of the first. A business that will not support your family on its profits can still be non-marginal if it makes a significant economic contribution, and job creation is the usual proof.

There is no required number of employees anywhere in the regulation.

“Develop and direct” is about control

22 C.F.R. § 41.51(b)(11):

The business or individual treaty investor does or will develop and direct the enterprise by controlling the enterprise through ownership of at least 50% of the business, by possessing operational control through a managerial position or other corporate device, or by other means.

Ownership of half is one way. Documented operational control is another.

What you get, and for how long

Time in the United States. Initial admission is not more than two years under 8 C.F.R. § 214.2(e)(19)(i). Extensions come in increments of not more than two years under § 214.2(e)(20), and the regulation specifies no cap on the number of them, subject to § 214.2(e)(5) and the presumption at § 214.2(e)(22)(ii). Each new admission on a valid visa starts its own two-year period, which is why many E-2 holders never file an extension.

The visa itself is a separate thing. How long the visa is valid, and how many times you can use it to seek admission, is set by the reciprocity schedule for your nationality. It is often much shorter than your period of stay, and it varies enormously by country.

Your spouse can work. Employment is authorized incident to status since January 30, 2022, evidenced by an I-94 annotated E-2S. No I-765 is required.

Your children can stay until twenty-one. They are admitted for the principal’s period of stay, annotated E-2Y, and are not employment authorized. At twenty-one they age out, and the Child Status Protection Act does not help, because it does not reach nonimmigrant status. See Three Things That Undo an E-2 Family’s Green Card Plan.

The two questions this post does not answer

How much money, and what kind of business. Those decide whether you have a case. They are in How Much Do You Have to Invest and Buying an Existing Business on an E-2.

The cheapest hour in an E-2 case is the one before you form the company. Send us your nationality, the type of business, and roughly what you plan to commit. Call or text 512.761.8479.

Read next: How Much Do You Have to Invest for an E-2 Visa? · E-2 vs. EB-5

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

The rule, and the sentence people miss

9 FAM 402.13 says an O-1 beneficiary may not self-petition, and then says in the same breath that a separate legal entity owned by the O-1 beneficiary may be eligible to file a petition on behalf of the beneficiary.

USCIS said the same thing in Policy Alert PA-2025-02, issued January 8, 2025, which updated Volume 2, Part M of the Policy Manual to explain that “a separate legal entity owned by the beneficiary, such as a corporation or limited liability company, may file a petition on the beneficiary’s behalf.”

So a founder is not locked out. A founder is required to build something.

What the petitioning entity has to look like

The entity must be genuinely separate from you, with someone other than you holding real authority over the employment relationship: a board, officers, or investors who can hire, fire, and set terms. You cannot be the sole decision-maker over your own employment and still describe the company as your employer.

One caution. I am not aware of any authority setting a specific ownership percentage for this purpose, and anyone quoting you a number is telling you something the law does not say. What the law imposes is a requirement about control.

If your evidence file predates 2025, rebuild it

The January 8, 2025 update added evidence types for beneficiaries working in critical and emerging technologies, examples of evidence an interested U.S. government agency might submit, and an example of what counts as an occupational change within a technical field. A file assembled before that update was built against a narrower set of examples than USCIS now publishes. If yours is older, it is worth revisiting before you refile.

Two mechanics that trip up founders

Agent as petitioner. Available for beneficiaries who are traditionally self-employed or who work short engagements for numerous employers, and an agent may file one petition covering multiple employers where each authorizes it. A real option for consultants and creatives. A poor fit for someone running one operating company.

The consultation. A written advisory opinion from an appropriate peer group, labor organization, or management organization. It is advisory, not binding on USCIS, and it may be obtained by the agency or waived where no appropriate peer group exists. Founders in emerging fields often assume that no peer group means no petition. It does not.

Where this collides with E-2, and how to fix it

E-2 and O-1 pull in opposite directions on the same document.

Those are not irreconcilable, and the reconciliation is a governance problem, not an ownership problem. Treaty nationals can keep fifty percent or more of the equity, so long as the governing documents put authority over your employment somewhere else. Hiring, firing, compensation, terms: a board or an officer other than you has to hold those powers, and has to actually use them. What breaks is the arrangement that exists only on paper.

I had a founder bring me a beautifully drafted operating agreement last spring. Treaty nationality was clean at sixty percent. The agreement also made him sole manager with exclusive authority over all employment matters, including his own. The E-2 was fine. The O-1 petition from his own company was not, and fixing it meant amending the agreement, documenting a board, and waiting for the amendment to be more than three weeks old. That is a cheap problem before signature and an expensive one after.

Immigration is federal, but the entity, its governing documents, and the authority you vest in a board or officer are governed by the law of the state where the company is organized. This firm is licensed in Texas and Illinois. Elsewhere we work alongside local corporate counsel.

Decide which visa the entity is being built for before you sign the operating agreement, or build it deliberately for both. Call or text 512.761.8479.

Read next: Where the $100,000 H-1B Payment Stands · E-2 Visa Requirements

Either you are trying to hire someone and the H-1B math keeps moving, or you are the someone and you want a category that does not depend on a lottery. Both lead to the same place.

Eleven months, four reversals

The proclamation restricts entry of H-1B beneficiaries who are outside the United States unless the petition is accompanied by a $100,000 payment. It is not a filing fee on every H-1B. Petitions filed before the effective date, and approved amendments, extensions, and changes of status for people already here, fall outside it.

A client of mine has now withdrawn the same job offer twice and re-extended it twice, tracking the litigation each time. In August he asked me whether to pull it again. That is the wrong question, and I told him so. The right question is what he does if the answer changes for a fifth time while his candidate is mid-relocation.

The August 20 development is why. A proposed DHS rule on H-1B fees clearing White House review reads most naturally as an attempt to accomplish through notice-and-comment rulemaking what the district court held could not be done by proclamation. Clearing review is not a rule, and a proposed rule is not a final one. It is still a signal, and it is why this post has a watch date.

Why O-1 comes up

No annual cap. No lottery. No prevailing wage obligation. No labor condition application. For a company that needs a specific person on a specific date, those four facts are the entire argument.

Three things O-1 is not

It has no portability. H-1B has a statutory portability provision at INA § 214(n), 8 U.S.C. § 1184(n), that lets a worker begin with a new employer when a non-frivolous petition is filed, provided he was lawfully admitted, the petition is filed before the current authorized stay expires, and there has been no unauthorized employment. O-1 has no equivalent. A new employer files its own petition, and the beneficiary generally cannot begin work until it is approved. The 240-day rule for timely-filed extensions applies only to the same petitioner. This is how an O-1 professional ends up working without authorization by accident, and it happens to people who have spent a decade in H-1B practice and assume the rules travel.

Its extensions are short. Initial validity runs up to three years for the period needed to accomplish the event or activity, with ten days on either end. Extensions come in increments of up to one year to continue or complete that same event or activity, with no cap on the number. A genuinely new event or activity with the same employer can support a fresh multi-year approval instead of a one-year extension, which is worth structuring for on purpose.

It is not a preview of EB-1A. Published approval rates for O-1 have been high across recent fiscal years while the rate at which requests for evidence issue has climbed. Those are statistics about a population, not predictions about a case. And the standards for EB-1A differ. Published analysis of USCIS data shows EB-1A denial rates roughly doubling between the first quarter of fiscal 2025 and the first quarter of fiscal 2026. Plan the immigrant petition on its own evidence.

If you were counting on H-1B and are now looking at alternatives , the answer depends on your nationality, your company’s ownership, and your timeline. O-1, E-2, and L-1 each fit a different fact pattern. Call or text 512.761.8479.

Read next: Your Own Company Can File Your O-1 · E-2 Visa Requirements

What fiscal 2026 looked like

India’s unreserved allocation was exhausted and the category went unavailable from June 10, 2026 through the end of the fiscal year, while mainland China sat at a final action date of December 1, 2016. Across the same period, the rural set-aside at twenty percent, the high-unemployment set-aside at ten percent, and the infrastructure set-aside at two percent stayed current for every country on both charts, all year.

Numbers reset each October 1. Check the current Visa Bulletin for where the charts stand today. The structural point outlasts any one bulletin.

One clarification, because it is commonly stated backwards. The Visa Bulletin does not gate the filing of an I-526E. That petition may be filed at any time, and it is what creates your priority date. The bulletin governs visa issuance and, through the Dates for Filing chart in months USCIS designates that chart, when an adjustment application may be submitted.

Why “current” is worth more than it sounds

Under INA § 245(n), 8 U.S.C. § 1255(n), added by the 2022 Act, an investor physically present in the United States in a lawful status may file the I-526E concurrently with an I-485, plus an I-765 and an I-131, when a visa number is available. Reserved categories being current means available.

For a treaty investor whose business is healthy but whose status renews on a two-year cycle, the package is the attraction:

• a pending green card application
• an independent work permit that does not depend on the E-2 business
• a filing date that fixes a child’s age under the Child Status Protection Act

That third item is the one that decides cases. A family came to me in February with a daughter who turned twenty as they sat down. Unreserved was hopeless for their chargeability. A rural project was current, they filed concurrently in April, and her age is now fixed at a number that works. Had they waited for the business to have one more good quarter, it would not have been.

Two costs that did not exist in 2024

Discretion. In May 2026 USCIS issued Policy Memorandum PM-602-0199, directing officers to treat adjustment of status as a matter of discretion and applying immediately to pending applications. Early commentary read it as limiting adjustment to extraordinary circumstances. DHS and USCIS then described it as a reminder of authority officers already had. Both readings are still in circulation and I would not tell you either is settled.

What the two readings share is the record. Under either, the discretionary factors are the ones a careful file already documents: tax compliance, a business that operates and employs people, status maintained without gaps, no unauthorized employment, family and community ties, and a coherent explanation of why adjusting makes sense on these facts. Build that record and the dispute over what the memo changed matters less. What is not in dispute is that the memo’s more forgiving discussion concerns the dual intent classifications, and E-2 is not one of them.

Travel. Under 8 C.F.R. § 245.2(a)(4)(ii), the classifications whose holders may travel abroad with a pending I-485 and return in that status are H-1, H-4, L-1, L-2, K-3, K-4, and V. E-1 and E-2 are not among them, which leaves a treaty investor two options and a real cost attached to each. Three Things That Undo an E-2 Family’s Green Card Plan works through what those costs are. Read it before you file concurrently.

If you are weighing a set-aside EB-5 project against staying on E-2, bring us your renewal date, your children’s ages, and your travel calendar. Those three facts decide it. Call or text 512.761.8479.

Read next: E-2 vs. EB-5 · Green Card Options for E-2 Business Owners

Start with the thing everyone reports backwards

Promoter registration already exists. Since the 2022 Act, direct and third-party promoters have been required to register with USCIS on Form I-956K and to certify compliance. The registration carries no filing fee. What has been missing is consequence, and the proposed rule supplies it by pairing the obligation with the penalty regime below.

Two things follow for an investor. If you have never been shown documentation of how the person recruiting you is compensated and whether he is registered, ask for it. And know that an I-956K registration with USCIS does not satisfy or excuse broker-dealer registration under the securities laws. Those are separate regimes at separate agencies, and the SEC has brought cases against people who thought otherwise. That analysis is in When Your Investment Is a Security.

Where a proposed rule ends and a real one begins

In EB-5, the gap between a proposed rule and an effective one has repeatedly decided who got in at which price. That is why a proposal deserves reading now rather than when it is final. The rule is at 91 Fed. Reg. 40676, July 2, 2026, RIN 1615-AC94, DHS Docket No. USCIS-2026-0100.

The three changes that would move money

Redeployment on a three-month clock. Repaid capital would generally need to be redeployed within three months absent a justification.

That sounds procedural. It is not. Right now a fund can hold returned capital while it looks for the next deal, and the investor’s I-829 waits on whatever the fund eventually finds. A client showed me a subscription agreement last year describing redeployment as “at the manager’s discretion, as opportunities warrant,” which in practice meant capital could sit uninvested for as long as the manager liked, with the investor’s conditional residence riding on it. A three-month clock ends that. It also forces managers into whatever deal is available in month three, which is a different risk that nobody is discussing yet.

Sustainment, codified. The rule would fix the two-year sustainment period in regulation, measured from the point all required capital has been contributed to the new commercial enterprise and placed at risk, not from conditional residence. It would also state that capital may be returned once sustainment and job creation are satisfied, even with visas still pending. Both positions are already USCIS policy. What codification buys is durability: Policy Manual guidance can change without notice and comment, and a regulation cannot.

A new investment tier. A higher-investment tier for projects in low-unemployment census tracts within metropolitan areas, sitting above the current standard amount and the targeted employment area amount. Specialist commentators describe that tier at $1.4 million. Read the figure and the qualifying trigger in the rule text instead of in summaries, because published descriptions of how an area would qualify do not agree with one another.

The secondary changes

A graduated sanctions regime, including monetary penalties of up to ten percent of total invested capital, plus suspension, termination, and debarment, and a flat $10,000 penalty for a late Form I-956G. Job creation would no longer be creditable where bridge financing has been repaid. Cryptocurrency would be accepted as a lawful source of funds. The rule would apply prospectively to petitions filed on or after its effective date.

Comment periods are open to anyone

This one closes August 31, 2026. Any investor, project sponsor, or business owner who would be affected can file a comment through the federal docket. Regulators count them and courts read them later. If you are reading this afterward, the docket stays public, and the comments that were filed are the best available preview of the objections that shape a final rule. They are worth reading before you sign a subscription agreement.

How this firm helps, and where the line is

We review EB-5 offering documents for immigration compliance: whether the structure, deployment terms, job-creation methodology, and sustainment and redeployment provisions can support an I-526E and later an I-829. We also advise on the securities exemptions that apply to an investment structure, which is ordinary work for a firm that practices business law alongside immigration.

What we do not do is evaluate the investment. We give no investment or suitability advice, we do not opine on whether a project is a good deal, and we accept no compensation, referral fees, or other consideration from regional centers, issuers, or promoters. For the investment question, retain independent financial advice.

Send us the private placement memorandum and the subscription agreement before you sign. We will read them against the current rule and the proposed one. Call or text 512.761.8479.

Read next: The September 30, 2026 Grandfathering Deadline · When Your Investment Is a Security

Two dates, and only one is close

Both dates concern the regional center program only. Direct EB-5, where you invest in and manage your own new commercial enterprise and prove the ten jobs yourself, is permanently authorized under INA § 203(b)(5)(A), 8 U.S.C. § 1153(b)(5)(A). It has no sunset and no filing deadline. If you are not investing through a regional center, neither date is yours.

September 30, 2027 is when regional center visas stop being made available under 8 U.S.C. § 1153(b)(5)(E)(i). As of this post, no reauthorization bill had been reported out of committee.

September 30, 2026 is the cutoff in the grandfathering provision at 8 U.S.C. § 1153(b)(5)(S), titled “Protection from expired legislation.” As of this post, that is about five weeks away.

What the grandfathering provision actually says

Notwithstanding the expiration of the regional center legislation, the Secretary of Homeland Security shall continue processing petitions filed on or before September 30, 2026. Two forms are named: the I-526 or I-526E, and the I-829. The Secretary may not deny such a petition based on the expiration, and may not suspend or terminate the allocation of visas to the beneficiaries of approved petitions in that group.

The text protects three things: the I-526 or I-526E, the I-829, and visa allocation to beneficiaries of approved petitions. It says nothing about a pending I-485, nothing about processing speed, and nothing that guarantees the program will lapse at all. The filing date controls and approval can come later. It is a statutory hedge, not a guarantee, and it has never had to operate, so how far it reaches has never been tested.

The prerequisite no amount of hurry can cure

An I-526E must be tied to a project for which the regional center has filed Form I-956F, and most sponsors will not accept subscriptions before the I-956F is on file. Confirm in writing that the project’s I-956F has been filed, and ideally approved, before you commit to a deadline strategy. A perfect source-of-funds file attached to a project with no I-956F is not a filing.

What source of funds actually takes

A client came to me in May with a project selected and, as he put it, “the money ready.” The money was ready. It had also moved through a family trading company in one country, a property sale in a second, and a currency conversion in a third, and two of the three had records in a language USCIS does not read. The trace took eleven weeks. He had budgeted four.

Tracing capital from its origin through every account it touched, in a form a USCIS officer will accept, takes real time, and more of it if the money moved through a family business, a property sale, a gift, or more than one currency. Petitions assembled in a hurry draw requests for evidence.

And effective August 5, 2026, USCIS restored its officers’ full discretion under 8 C.F.R. § 103.2(b)(8)(ii) to deny a benefit request outright, without first issuing a request for evidence or a notice of intent to deny, reaching requests already pending. Reported denial rates on I-526E in recent quarterly data have run around twenty percent.

Which side of the line you are on

If your source-of-funds file is substantially built and your project has a filed I-956F, the case for filing before September 30 is strong.

If you are starting from a blank page, understand what you would be racing toward. A petition filed on September 29 with a thin funds trace has secured grandfathering on a case that may not survive adjudication.

If you are already in the United States in another status, and treaty investors especially, this deadline collides with adjustment of status, with children approaching twenty-one, and with the reserved visa categories. See EB-5 Concurrent Filing and Three Things That Undo an E-2 Family’s Green Card Plan.

This deadline is the reason to have a lawyer watching, instead of finding one afterward. If EB-5 is on your list for the next year, a call this month decides whether you file before September 30 or after it. Call or text 512.761.8479.

If you are reading this after September 30, 2026:* the grandfathering window for regional center petitions has closed, direct EB-5 is unaffected, and the planning question becomes whether the program has been reauthorized. Confirm current status before assuming either answer.

Read next: E-2 vs. EB-5 · When Your Investment Is a Security

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

What the government charges, all of it

What is true about the $250

Pub. L. No. 119-21, § 100007, signed July 4, 2025, creates a $250 visa integrity fee on nonimmigrant visa issuance, indexed to inflation beginning in fiscal year 2026. The statute includes a conditional refund mechanism that has never been implemented and that no applicant should build into a budget.

DHS published a notice on July 22, 2025 saying the fee “requires cross-agency coordination before implementing” and would be addressed “in a future publication.” No implementing rule or notice has been published since. The fee does not appear on the State Department’s published schedule of consular fees, and State issued a consular fee rule on June 9, 2026 without mentioning it.

There are scattered reports that some posts have begun collecting it anyway. I have not been able to confirm them, and the sources disagree about when collection supposedly began. Budget for the fee and confirm what a specific post is charging before you send money.

The line item most estimates leave out

The reciprocity fee. If the visa is issued, a nationality-specific issuance fee may apply under the State Department’s reciprocity schedule. It varies widely, and for some treaty countries it runs into the hundreds of dollars per applicant, multiplied by a spouse and two children.

An E-2 cost estimate that gives you $315 and stops is incomplete. Look up your own country before you budget.

One trap that has cost real money

Banks usually want the entity documents before they will open an account, so a foreign founder often files before he has one. That used to be survivable. Since October 28, 2025, USCIS no longer accepts paper checks or money orders, and payment must be by ACH debit on Form G-1650 or credit card on Form G-1450, drawing on a U.S. bank or a U.S.-issued card. The petition now gets rejected over the payment method, not the merits.

A narrow exemption exists on Form G-1651 for applicants without banking access or facing undue hardship. It is an exception you request, not a default you rely on.

Open the account before you file.

The costs that dwarf everything in the table

Legal fees, the business plan, the entity formation, the lease, and the investment itself. The government fees are noise by comparison, and the investment is the only number with no published figure attached to it. That question has its own post: How Much Do You Have to Invest for an E-2 Visa? [/e-2-visa-minimum-investment/]

Send us the E-2 cost estimate someone has given you and we will tell you what is missing from it. A thirty-minute review is cheaper than discovering the gap after you have wired funds. Call or text 512.761.8479.

What changed, and when

The State Department announced on September 18, 2025 that effective October 1, 2025, essentially all nonimmigrant visa applicants require an in-person interview, including applicants under 14 and over 79. The exemptions are a short list: certain diplomatic and international-organization categories, plus B-1/B-2 and H-2A renewals within twelve months of expiration where the prior visa was issued for full validity and the applicant is at least 18. E-1 and E-2 are not on it. One caution in reading the list: the “TECRO E-1” entry is a Taiwan diplomatic designation, not the treaty trader category. State also reserves that consular officers may require an interview case by case for any reason.

Separately, State now instructs applicants to schedule at the embassy or consulate in their country of nationality or residence, with narrow exceptions. E-2 practice used to run heavily through whichever post had the shortest queue and the most experienced E-visa unit. That option is largely closed. Applying in a third country is not flatly forbidden, but the MRV fee is not refundable and not transferable between posts, the wait is longer, and you have to prove residence.

The step that actually drives your calendar

A client called me in March with a flight booked and a visa expiring in six weeks. He had done what worked in 2022: found the post with the shortest published wait and scheduled there. Two problems. He no longer lived in that country, and his company’s registration with the E-visa unit at the post where he did live had lapsed two years earlier. The MRV fee he had paid was not transferable. He lost the flight, the fee, and eleven weeks.

Most posts require the enterprise itself to be registered, or re-registered, with the E-visa unit before the individual applicant can be scheduled. That queue is separate from the applicant queue and is usually the longer of the two. It explains why E units run on their own schedule instead of the general petition-based wait times State publishes.

Build the calendar backward from enterprise registration. The interview date is the last thing you should be looking at.

What the interview means if you are also pursuing a green card

An E-2 renewal now happens in front of a live officer. Under 9 FAM 402.9-4(C), that officer must be satisfied that an applicant with an immigrant visa petition on file intends to leave when the authorized stay ends, and not to stay and adjust. The provision went largely untested for years, because so many renewals were processed without an interview.

Two things cut the other way.

First, the same FAM section says an unequivocal expression of intent to depart 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. Most nonimmigrant categories carry a presumption of immigrant intent under INA § 214(b), 8 U.S.C. § 1184(b). E is more forgiving than that.

Second, on the USCIS side, 8 C.F.R. § 214.2(e)(5) provides that an application for initial admission, change of status, or extension of stay in E classification may not be denied solely because a request for permanent labor certification has been approved or an immigrant visa preference petition has been filed or approved.

So an immigrant petition in your file is a fact you have to be able to explain. Standing alone, it is not a disqualifier.

The alternative to getting on a plane

If you are inside the United States and eligible, consider extending status with USCIS on Form I-129. Premium processing commits USCIS to act within fifteen business days, though the clock runs from receipt of a properly filed request and a request for evidence stops it. An extension of status does not produce a visa for re-entry, so it buys you time, not travel. Note also that each admission on a valid E-2 visa carries its own two-year period, which is why many E-2 holders go years without filing an extension at all.

What to do now

Organize the company’s financials, payroll records, tax filings, and current operations before the appointment, not the night before. Confirm your post’s enterprise registration status and requirements. And if there is an immigrant petition in your file, decide how you will explain it before you book the ticket.

If your E-2 expires within the next twelve months, we will map the enterprise registration timeline for your specific post and tell you whether a USCIS extension is the better move. Call or text 512.761.8479.

Read next: E-2 Visa Requirements: Do You Qualify? · What an E-2 Visa Costs

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 see regularly. An investor sells an apartment building abroad. Part of the proceeds moves through a brother’s account because his bank handles international wires better. Some is converted to dollars through an informal currency broker, because the official channel is slow. The money lands in a U.S. business account; the restaurant it funds is real, the jobs are real, the lease is signed. Then the petition asks one question the investor never planned for: prove, document by document, where every dollar came from.

This is where investor cases are won and lost. The legal standard is that the invested funds be lawfully sourced and fully traceable, and “traceable” means every hop has paper: the sale contract, the tax records showing the income that bought the asset, the bank statements at each step, the exchange records, and signed declarations for anything that moved as a gift or through a relative. A gap in the chain does not mean the money was dirty; it means the case cannot carry its burden of proof, which for the adjudicator is the same thing.

The fix is sequencing. Build the file before the money moves: plan the path of funds with the petition in mind, keep every intermediate record, and make sure the corporate documents (ownership percentages, capitalization, the operating agreement) match what the petition will say. This is also why handling the business and the immigration case under one roof matters. I have handled E-2, EB-5, EB-1, EB-2/NIW, and O-1 matters across industries from real estate and construction to hospitality, retail, farming, and ranching, and the pattern holds in all of them. The petition is only as strong as the business file underneath it.

If you are planning an investor case, build the source-of-funds file before the money moves. Call or text 512.761.8479.

The two best-known investor options solve different problems. An E-2 is a nonimmigrant treaty investor visa: it lets nationals of certain treaty countries operate a business they have invested in, but it does not by itself lead to a green card. EB-5 is an immigrant investor program: a qualifying, job-creating investment that can lead to permanent residence.

E-2 eligibility turns on being a national of a treaty country, making a substantial, at-risk investment in a real operating business, and intending to direct and develop it. “Substantial” is proportional to the business; there is no single magic number, which makes documentation and the business plan decisive.

EB-5 has a two-tier minimum: a lower amount for projects in a designated Targeted Employment Area or qualifying infrastructure project, and a higher amount for standard projects. Those figures are set by federal law and are scheduled to adjust for inflation, so I confirm current thresholds when I evaluate a case rather than quoting numbers that may be stale. Beyond the investment, budget for filing and professional fees, and remember that the funds must be lawfully sourced and fully traceable. For founders and professionals who are not investing capital, merit-based routes exist too: EB-1, EB-2 with a National Interest Waiver, and O-1.

Your nationality, your capital, and your end goal decide which path fits. Call or text 512.761.8479 to talk through yours.