Direct EB-5 and regional-center EB-5 occupy different ends of the program: direct EB-5 is a permanent, hands-on path with one investor per business and W-2 jobs only, while regional-center EB-5 is a pooled, indirect-job-leveraged path that depends on a periodically reauthorized program and the September 30, 2026 grandfathering deadline.
Both pathways trace to INA § 203(b)(5) and the implementing regulations at 8 C.F.R. § 204.6. The statutory split appears in INA § 203(b)(5)(E), which authorizes the regional-center program, and in the regulatory definitions of "new commercial enterprise" and "investment" at 8 C.F.R. § 204.6(e). Direct EB-5 has no separate statutory hook; it is what remains of the program when regional-center mechanisms are stripped away.
The EB-5 Reform and Integrity Act of 2022 (RIA), signed March 15, 2022, restructured both pathways but treated them differently. For direct EB-5, the RIA imposed a single-investor rule: only one investor may use a single direct EB-5 business to qualify under INA § 203(b)(5). This is the most significant post-RIA change for direct EB-5 and effectively ended the prior practice of pooling small direct-investor groups. Direct EB-5 is otherwise a permanent program; it is not subject to reauthorization, not subject to the September 30, 2027 statutory expiration that affects the regional-center program, and not subject to the September 30, 2026 grandfathering deadline under RIA Section S.
For regional-center EB-5, the RIA reauthorized the program through September 30, 2027 and added INA § 203(b)(5)(E) through (Q): RC operations, project applications (Form I-956F), annual statements (Form I-956G), background checks (Form I-956H), promoter registration (Form I-956K), the Integrity Fund, source-of-funds documentation, and investor-protection provisions. RIA Section S (uncodified) provides that DHS shall continue processing I-526E and downstream I-829 petitions filed before September 30, 2026 even if the program expires September 30, 2027. The RIA also imposed the 90/75 percent caps on indirect-job counting, the construction-period discount, and Targeted Employment Area authority resting exclusively with USCIS.
The USCIS Policy Manual at Vol. 6, Part G addresses both pathways. The two are distinct administrative tracks, with separate forms, separate compliance regimes (regional centers carry annual reporting and Integrity Fund obligations that direct EB-5 investors do not), and different practical risk profiles.
Direct EB-5 requires the investor to invest $1,050,000 (or $800,000 if the project independently meets TEA criteria) in a single new commercial enterprise that the investor will typically operate. The NCE must create 10 full-time W-2 jobs (35+ hours per week per position) within the required period. The Policy Manual requires a comprehensive, Matter of Ho–compliant business plan; supporting documentation includes the formation documents of the NCE, the operating agreement, evidence of the investor's role, and a job-creation timeline tied to the operating budget. The NCE may be a small operating business (a franchise, a restaurant, a manufacturing operation, a professional service firm, or a self-developed hotel are common), but it must produce direct W-2 employment rather than indirect or induced jobs.
Regional-center EB-5 routes the investor's capital through a designated regional center that has filed a Form I-956F project application before any investor's I-526E is filed. The investor's capital flows to the new commercial enterprise (NCE), which in turn deploys to a job-creating entity (JCE) typically through a loan or equity structure. The investor counts direct, indirect, and induced jobs through an economic methodology (typically RIMS II or IMPLAN), subject to RIA caps: indirect jobs cannot exceed 90 percent of total if construction lasts at least two years, or 75 percent if construction is shorter, with direct construction jobs further discounted by a fraction equal to construction months divided by 24. Tenant-occupancy jobs remain possible but cannot be relocated. The investor typically has no operational role; the regional center and the JCE manage the project.
The post-RIA adjudication environment, since the June 2025 reinstitution of the CISNA / EDLO directive, has reshaped both pathways. Direct EB-5 cases now draw aggressive scrutiny on the Matter of Ho business plan, the W-2 job-creation timeline, and the investor's actual operational role; thin business plans that cleared in 2018-2019 are drawing direct denials. Regional-center cases draw aggressive scrutiny on the project-side documentation (I-956F sufficiency, fund-administrator status, integrity-fund compliance, annual I-956G filings), the source-of-funds package (now requiring seven years of tax returns under RIA Section L), and the project's real-world operational status. AILA practitioners (Andrew DeRoll Black, Ricky Murray, Robert Devine) report that things approved 8-9 months ago now draw RFEs, NOIDs, or direct denials.
The 2026 regional-center termination wave is a defining feature of the current environment. USCIS issued termination notices to investors of every terminated RC in September 2025. Termination notices typically list three options under RIA Section M (INA § 203(b)(5)(M)) but do not always provide a substantive explanation of the underlying USCIS action. Most affected investors are conditional residents whose children have aged out of derivative status, which makes the 180-day Section M window operationally tight. As of March 2026, no NCE/JCE debarment has been issued despite the RIA's authority, and there is no mechanism for investors to request a debarment because proposed Form I-527 has stalled (comment period closed December 22, 2025).
Direct EB-5 documentation typically includes:
- A Matter of Ho–compliant business plan with capital deployment timeline, hiring plan, marketing plan, and detailed financial projections tied to the W-2 job-creation timeline. - Formation documents for the NCE, operating agreement, and evidence of lawful organization in the relevant jurisdiction. - Lease agreements, equipment-purchase contracts, and other evidence that the investment has been (or will be) deployed in operational substance. - Evidence of the investor's role: title, duties, time commitment, and where applicable, employer-sponsored work authorization (typically E-2, L-1, or O-1 prior to or alongside EB-5). - Source-of-funds package documenting the lawful origin of the entire $1,050,000 (or $800,000 in TEA) plus any administrative fee, with seven years of tax returns under RIA Section L.
Regional-center EB-5 documentation typically includes:
- The regional center's I-956F receipt or approval notice for the specific project, the subscription agreement, the NCE operating agreement, and the private-placement memorandum (PPM). - The third-party economic-impact analysis with construction and operations splits, tied to the project budget. - The Matter of Ho business plan at the project level (not the investor level). - Evidence of fund-administrator status (or audited-NCE waiver under RIA Section Q). - The investor's source-of-funds package, with seven years of tax returns under Section L, donor or lender SOF documentation under Section L(iii) where applicable, and a path-of-funds chart documenting the wire route to the NCE. - Where the project has filed annual I-956G statements (due December 29 for the prior fiscal year), copies confirming compliance.
Whether any particular package satisfies USCIS expectations is decided case-by-case by the adjudicating officer.
Direct EB-5 business-plan adequacy. USCIS has issued RFEs and direct denials on direct EB-5 petitions where the Matter of Ho business plan lacks the operational specificity USCIS expects: hiring timeline, role descriptions tied to W-2 employment authorization, marketing plan, and revenue projections tied to job creation. Practitioners typically respond with revised business plans, supporting documentation of operational deployment, and declarations from the investor confirming role and capital deployment. Whether the response is persuasive depends on the entire record.
Direct EB-5 single-investor compliance. USCIS may issue RFEs questioning whether the direct EB-5 NCE has a single investor, particularly where the NCE has multiple equity holders or where pre-RIA pooled-investor arrangements have not been fully unwound. Responses typically include the cap table, operating agreement, and evidence of the post-RIA structure.
Regional-center I-956F insufficiency. Where the underlying I-956F is incomplete, outdated, or inconsistent with the current project state, USCIS has issued RFEs at the I-526E level questioning the project's bases of eligibility. Responses typically include amended or updated I-956F filings and project-side reconciliation memoranda. Whether the project-side documentation satisfies USCIS expectations is decided case-by-case.
Regional-center termination notices. As described above, the 2025-2026 termination wave has produced termination notices citing administrative or substantive grounds. The 180-day Section M window applies; investors have three options (continue, re-associate the NCE with another approved RC, or new qualifying investment) at a reduced filing fee of $3,675. Whether any particular Section M response succeeds depends on the underlying USCIS action and the investor's posture.
Source-of-funds RFEs across both pathways. SOF RFEs are common in both direct and regional-center cases. Vivian Zhu has described SOF as an area where USCIS has significant discretion and where standards evolve without formal announcement. The federal courts in Battineni v. Mayorkas (D.D.C. Oct. 2, 2024) and Zhou v. Noem (D.D.C. Feb. 6, 2025) narrowed USCIS's reach by limiting de-novo demands for sourcing of pre-petitioner owners and by holding that immediate-source documentation is sufficient, but the rulings are not binding on adjudicators outside the parties.
"Approvable when filed" denials. Under 8 C.F.R. § 103.2(b)(1), USCIS has issued direct denials on petitions missing the seven years of tax returns now required under RIA Section L, missing judgment statements, or missing business-registration documents. Both pathways are affected; direct EB-5 cases face additional exposure where the business plan does not satisfy Matter of Ho at the petition stage.
The choice between direct and regional-center EB-5 turns on operational appetite, control preference, capital structure, and timing. Direct EB-5 suits investors who want to operate a small business in the United States, who can absorb the operational burden of running an NCE (managing W-2 employees, maintaining payroll, sustaining the business through the 10-job creation period), and who are not relying on the September 30, 2026 grandfathering deadline. Regional-center EB-5 suits investors who prefer a passive role, who want indirect-job leverage to satisfy the 10-job requirement through a larger project, and who are willing to accept the program's reauthorization risk.
For investors approaching the September 30, 2026 grandfathering deadline, the choice has a temporal dimension. Regional-center filings before the deadline are protected under RIA Section S; the program continues to process those filings even past the September 30, 2027 statutory expiration. Direct EB-5 filings are not subject to the grandfathering deadline because the standalone program is permanent. For investors who cannot complete a regional-center filing before September 30, 2026, direct EB-5 may remain an option after the deadline, though the operational burden and the single-investor rule constrain the population for whom direct EB-5 is realistic.
For investors with country-chargeability concerns, both pathways face the same Visa Bulletin and the same set-aside categories. As of March 2026, all EB-5 set-aside categories (rural 20 percent, HUA 10 percent, infrastructure 2 percent) are current for all countries, enabling concurrent I-485 filing for in-country investors in lawful nonimmigrant status. AILA practitioners have flagged that rural may retrogress before HUA because of higher approval throughput, but the case-specific question depends on USCIS adjudication pace and visa-number availability at the moment of filing.
For investors in the 2026 regional-center termination wave, the strategic posture depends on the underlying USCIS action and the investor's stage. Conditional residents whose RC has been administratively terminated may invoke Section M Option 1 (continue under the existing project) where sustainment and job creation have already been met. Investors at earlier stages may invoke Option 2 (re-associate the NCE) or Option 3 (new investment) within the 180-day window. The reduced filing fee under Section M is $3,675, with no $1,000 Integrity Fund fee. John Pratt has flagged that USCIS's interpretation of Section M as applying only to post-RIA terminations is "ripe for litigation" on retroactivity grounds for pre-RIA investors whose RCs were terminated before March 2022.
For direct EB-5 investors specifically, the post-RIA single-investor rule creates an operational reality: the NCE must be structured around one investor. Pre-RIA structures that pooled multiple direct investors must be unwound, restructured, or migrated to regional-center vehicles. Practitioners typically counsel direct EB-5 candidates that the operational and capital commitment is more substantial than the regional-center alternative, and that the timeline savings (no I-956F dependency) may not offset the operational and Matter of Ho burden in the current adjudication environment.
Whether any of these strategic frames applies to a particular investor depends on the entire record, the operational profile, and the timing of the contemplated filing.
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 direct-EB-5 business-plan adequacy and on regional-center project-side compliance, 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 investors choosing between direct and regional-center pathways, 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 investor cases. It is general information about how the two EB-5 pathways are 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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