By the spring of 2024, two years after the EB-5 Reform and Integrity Act (RIA) was signed into law, stakeholders and practitioners had found their footing with the reformed program. USCIS had approved I-956F project applications, regional centers had filed their first Form I-956G annual statements, and the Program seemed more predictable than it had been in years. The new set-aside categories for rural, high unemployment, and infrastructure investment had proven to be more than a policy experiment. Investor demand for them had put new life into a program that had weathered years of lapses, litigation, and backlogs. When Michael Handley, a data scientist at the U.S. Department of State, took the stage as keynote speaker at the IIUSA EB-5 Industry Forum in Atlanta on May 20, 2024, the industry was eager for a clear read on how the new framework was performing. Handley offered plenty of useful insight. But in the hallways afterward, one idea dominated the conversation: could an investor who elected a reserved set-aside category when filing Form I-526E later switch to an unreserved visa?
The appeal was obvious. Rural is the largest set-aside category, with 20% of annual EB-5 visas reserved for it, compared with 10% for high unemployment and 2% for infrastructure, also comes with priority processing. An investor could take advantage of that faster processing and later draw from the available unreserved visas, an option especially valuable for rest-of-world applicants. Rapidly advancing final action dates for India suggested that Indian applicants would soon gain the same access. However, China-born investors had no such option. The China unreserved category was still backlogged with a queue of pre-RIA petitions, so post-RIA Chinese investors had no choice but to stay in the reserved lane until that backlog cleared. Every reserved visa that went to an investor who could have used an unreserved one was a visa denied to someone with no other option. For anyone who has lived through earlier versions of this program, using every visa as efficiently as possible is worth the effort. For a moment it looked like the campaign was simple: persuade filing attorneys to have their clients choose unreserved once the I-526E was approved.
Then reality set in. The choice is only available in consular processing. Once the I-526E petition is approved and the applicant is deemed eligible to move forward, the National Visa Center has required consular applicants to select a single reserved or unreserved class before their interview can be scheduled. In short, an applicant who made a Rural investment in their I-526E could switch to an unreserved visa. Adjustment of status applicants, whose cases USCIS adjudicates, have no equivalent process, and USCIS still hasn’t announced one. Concurrent filing of the I-485 while the I-526E is pending has been one of the RIA’s biggest wins. It also means a large share of post-RIA investors, including many Indian investors and roughly 2,000 rest-of-world high unemployment investors, are in adjustment of status with no clear way to elect an unreserved visa.
The cost is no longer theoretical. Under the October 2026 Visa Bulletin, the unreserved Final Action Date for India-born applicants is December 1, 2023. That means post-RIA Indian investors with earlier priority dates could be issued an unreserved visa today. The Date for Filing reaches May 1, 2024, opening the unreserved queue to more of them. Nearly all of these investors made rural or high unemployment investments and hold I-526E approvals that list unreserved as an approved classification. Those processing through consulates can select it; those who are adjusting status cannot.
That gap between what seemed possible in Atlanta and how the rules actually work deserves a closer look. This two-part series examines it.
In the first piece, Suzanne Lazicki looks at what is at stake for each group of investors: India-born applicants who could take over 500 unreserved visas in FY2027, rest-of-world high unemployment investors heading toward retrogression, China-born set-aside investors facing potentially multi-decade waits, and the policy goal of rewarding investment in distressed areas. She draws on the pre-2022 practice, when DOS allocated set-aside and unreserved visas proactively, and recommends clear election procedures, published demand data, and coordinated allocation between DOS and USCIS.
In a companion piece publishing Thursday, November 19, Joey Barnett of WR Immigration traces what has happened since: AILA’s letters to USCIS from September 2024 through May 2026 asking for an election process for adjustment applicants, two of which have gone unanswered. He also covers the September 2026 RFEs for new medical exams, a proposed RIA rule that is silent on category selection, and a year in which only 423 of more than 8,000 available reserved visas were used.
Together, the two pieces show why the choice between reserved and unreserved visas matters, what has been done to secure that choice for adjustment applicants, and what it will take to deliver the investment incentives the RIA was designed to create.
The conversation that started in Atlanta needs to move from the hallway to action. Every visa left unused or misallocated is a lost opportunity for an investor who has already committed capital to an American project, and the investors with the most at stake are often the ones with the least ability to change the outcome. We urge everyone with a stake in EB-5 to take up this fight. Filing attorneys should advise consular clients on their category election and track which approach serves them best. Regional centers and developers should raise the issue with their investors and in their engagement with the agencies. And the whole industry should add its voice to AILA’s calls for USCIS to give adjustment of status applicants the same election process consular applicants already have, and for the final RIA rule to include one. The RIA gave investors more than one route to a green card. It is up to all of us to make sure they can use it.
Start with part one, Suzanne Lazicki’s breakdown of the visa allocation choices at stake. Part two, with Joey Barnett of WR Immigration, publishes November 19.
About the Author
Christine Chen is Chief Operating Officer of CanAm Enterprises, where she has shaped strategy and operations since 2002. She oversees several EB-5 business functions and more than 40 staff worldwide. Her work includes launching CanAm’s in-house FINRA broker-dealer, opening offices in China, and expanding into new investor markets. She holds degrees from the University of Chicago and Columbia University.
