This page covers the pre-RIA framework that continues to govern your case, the I-829 source-of-funds re-examination that USCIS now treats as routine, the Battineni and Zhou arguments available against agency over-reach, and the strategy of over-documenting through to I-829 approval.
You filed an I-526 petition before March 15, 2022, or you became a conditional resident on an I-526 that predates the EB-5 Reform and Integrity Act. Your investment was $500,000 in a targeted employment area, or $1,000,000 outside one. The project you invested in was approved under the pre-RIA regional-center program (or, less commonly, a direct investment), and your case has been moving through the queue for years.
What may not have been obvious when you filed is how aggressively the adjudication landscape has changed. USCIS is now reopening source-of-funds questions at the I-829 stage on currency-swap transactions from a decade ago, on bank statements that financial institutions no longer retain, and on cross-references against documents (DS-160s submitted by travel agencies, for example) that the investor never personally completed. Pre-RIA investors who expected a routine removal-of-conditions filing are now receiving lengthy I-829 RFEs that revisit the entire SOF showing.
The pre-RIA framework still applies to your case for the things that matter most: the investment minimum, the sustainment obligation, and the substantive eligibility standards under 8 C.F.R. section 204.6 and section 216.6. But the way USCIS adjudicates that framework has shifted, and the agency's view appears to be that it is not bound by its prior, more lenient interpretive practice. The strategy for pre-RIA investors in 2026 is to accept this reality, over-document, and have the legal arguments under Battineni and Zhou ready in the event of agency over-reach.
Pre-RIA investors are governed by INA section 203(b)(5) as it existed before the RIA's amendments, by the implementing regulations at 8 C.F.R. section 204.6 (eligibility, definitions of "capital," "invest," targeted employment area, new commercial enterprise, documentation), 8 C.F.R. section 216.6 (removal of conditions), and 8 C.F.R. section 204.6(j)(3) (source-of-funds documentation). The pre-RIA investment minimums of $500,000 in a TEA and $1,000,000 outside one continue to apply.
The sustainment requirement for pre-RIA investors is anchored at 8 C.F.R. section 216.6(a)(4)(iii). Capital must remain at risk throughout the two-year period of conditional permanent residence, that is, from the issuance of the conditional green card through the I-829 adjudication. USCIS continues to apply this rule. The post-RIA shift to a sustainment clock that starts at deployment to the NCE and availability to the JCE does not apply to pre-RIA investors. This is important because in many pre-RIA cases the project's loan or equity structure has matured well before conditional residence ended, and redeployment becomes a live issue under USCIS Policy Manual Volume 6, Part G, Chapter 2.
The "at-risk" requirement is governed by 8 C.F.R. section 204.6(j)(2) and Matter of Izummi, 22 I&N Dec. 169 (Assoc. Comm'r 1998). Capital must be subject to risk of loss and chance of gain. Funds returned to the NCE before sustainment ends typically require redeployment within "a reasonable amount of time," which USCIS has interpreted in the policy manual as approximately twelve months. Redeployment must remain within the same NCE, must be commercial in nature (not pure secondary-market trading), and need not stay within a TEA.
I-829 source-of-funds re-examination is the live issue in 2026. The regulations do not authorize a de novo SOF review at I-829, and prior I-526 approvals were historically given some deference. That deference is no longer reliable. USCIS now reopens SOF questions at I-829, particularly for China currency-swap cases (where licensed exchangers in Hong Kong, Singapore, or Australia were used to move capital out of the mainland), for cases involving older inheritance corpora, and for cases where the investor's earlier nonimmigrant filings (DS-160, DS-260, L-1, E-2) contain inconsistencies with the SOF narrative. There is no regulatory authority for this practice, but it is happening, and the response is to over-document rather than to litigate the agency's authority unless the case demands it.
The Battineni v. Mayorkas (D.D.C. October 2, 2024) and Zhou v. Noem (D.D.C. February 6, 2025) decisions have narrowed USCIS's reach into pre-petitioner sources. The federal courts in those cases held that the SOF inquiry is "narrow" and does not require investors to "trace every penny" beyond their immediate source. The rulings are persuasive, but they are not binding on adjudicators outside the parties. They are useful as legal arguments in RFE responses and motions, particularly where USCIS demands sourcing of a gift-giver's predecessor or of funds that passed through a non-bank intermediary, but they should not be relied on alone. Over-documentation remains the default.
The investor is a conditional resident, the I-829 filing window has opened (90 days before the second anniversary of conditional residence), and the original SOF record is at hand.
The default strategy for pre-RIA conditional residents is to file the I-829 timely, with the original SOF record refreshed and supplemented. This typically means: refiling the original SOF binder with updated narrative; pulling any bank statements that the investor's institutions still retain (most banks keep five to seven years); securing CPA or forensic-accountant declarations to fill in primary-document gaps; obtaining, where practical, foreign legal-expert opinions on issues of inheritance or succession law; and documenting any redeployment events with the same care as the original investment. Practitioners report that the cases that clear current I-829 scrutiny without a denial tend to be those where the investor and counsel rebuilt the entire SOF showing rather than relying on the prior I-526 approval. Whether this approach is sufficient is decided case-by-case by the adjudicating officer.
USCIS issues an RFE on the I-829 reopening source-of-funds questions from the I-526 stage.
The response combines two elements. First, a substantive legal argument under Battineni and Zhou where the agency's request reaches beyond the investor's immediate source: arguments that the SOF inquiry is narrow, that the investor is not required to trace every penny back to a predecessor, and that the regulations do not authorize de novo SOF review at I-829. Second, the maximum re-documentation that the file supports, even where the legal argument would, on its own, be sufficient. Practitioners report that adjudicators in 2025 and 2026 are not consistently moved by legal arguments alone, and that the cases that clear the RFE tend to be those where the over-documentation made the legal argument unnecessary. The response schedule must be built backward from the exact date printed on the notice. Whether legal argument plus re-documentation produces approval is decided case-by-case.
The pre-RIA investor's regional center was terminated, and Section M relief is being explored.
Pre-RIA investors whose regional centers were terminated received notices in September 2025 referencing the three Section M options (continue, re-associate, or invest in a new NCE) with a footnote 3 confirming that the original $500,000 or $1,000,000 minimum continues to apply. The footnote-3 position has supported pre-RIA investors in past cases. USCIS has separately taken the position that pre-RIA terminations (those that occurred before March 15, 2022) do not qualify for Section M relief at all, which is a position that practitioners regard as ripe for retroactivity-based litigation. The strategy depends on the timing of the termination, whether jobs and sustainment have already been met, and the willingness of a successor regional center to take on the NCE. See the firm's distressed-project page for detail. Whether Section M relief is available in any specific matter is decided case-by-case.
The original loan or equity structure matured before conditional residence ended, and the regional center directed redeployment of returned capital.
Pre-RIA redeployment is governed by USCIS Policy Manual Volume 6, Part G, Chapter 2, Section A.2. Redeployment must be within the same NCE, must be a commercial undertaking rather than a pure secondary-market financial-instrument purchase, and should typically occur within approximately twelve months. Documentation of the redeployment event, on par with documentation of the original investment, is expected at I-829. Practitioners typically request a redeployment memorandum from the regional center sponsor, supplemented by the underlying transactional documents. Whether the redeployment satisfies the at-risk and same-NCE requirements is decided case-by-case.
The agency has reached an unreasonable result on a record that does not, in counsel's judgment, support denial.
Federal-court litigation is the backstop, not the front line. Mandamus is generally a poor fit for I-526 delay (Da Costa v. IPO, 80 F.4th 330 (D.C. Cir. 2023) cuts off most delay arguments in the D.C. Circuit, though Sixth Circuit and other forums have been more receptive in cases like Chhajed v. Jaddou and Guthikonda v. Jaddou). The 90-day statutory adjudication target at I-829 (INA § 216A(c)(3)(A)) does, however, support mandamus where the agency holds the file beyond that point. Substantive APA challenges to denials are case-specific and depend on the record. Whether litigation is appropriate, and in which forum, is a separate decision with its own scope, timeline, and fees.
EB-5 approval rates have fallen materially over the past several adjudication cycles, and the rate at which USCIS issues Requests for Evidence, Notices of Intent to Deny, and direct denials has risen sharply. The June 2025 reinstitution of the CISNA/EDLO directive (instructing officers to deny rather than RFE in close cases) and the routine pairing of I-829 denials with Notices to Appear in removal proceedings are reshaping how EB-5 practice is done. Profiles that we and other firms saw approved without challenge two or three years ago are now drawing aggressive scrutiny, particularly on I-829 source-of-funds re-examination and the re-tracing of currency swaps and other transactions that occurred a decade or more before filing, and some are being denied outright on records that, on their face, look as strong as records that previously cleared. Officers also vary considerably in how they apply discretionary judgments under the post-RIA framework. This climate is not unique to pre-RIA investors, but it is real, and it informs how we counsel clients before, during, and after filing.
This page describes patterns we have seen across many pre-RIA matters. It is general information about how this type of case is typically analyzed, not a prediction about any specific case and not a representation that meeting any particular evidence pattern will result in approval. EB-5 outcomes turn on the entire record, the strength of the legal and factual arguments, the current adjudication climate, and the discretion of the adjudicating officer.
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Immigration counsel to Fortune 500 employers at a national firm · Adjudicated 12,000+ visas at the U.S. Consulate, Mexico · Working in U.S. immigration since 2008
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