EB-5 visa warning: India may face green card delays as risks emerge

US Visa Bulletin warns India may face EB-5 cut-off soon. Experts explain timelines, risks, and why September 30, 2026 matters

The May 2026 US Visa Bulletin, released last week, arrived with a new warning, particularly for Indian investors. The US State Department said that “sufficient demand and increased use by India in the EB-5 unreserved visa categories may necessitate retrogression of the final action date or render the category unavailable to maintain number usage within the FY 2026 annual limit.”  Visa retrogression occurs when the US Department of State moves a visa category’s priority date backwards in the Visa Bulletin, meaning more applications are filed than available visas. It results in longer wait times, forcing applicants with once-current dates to wait until their status becomes current again before proceeding with their green card process.

   

This is the first time in FY 2026 that such a direct warning has been issued for India in EB-5 Unreserved.

 

What is EB-5 visa?

 

The EB-5 Immigrant Investor Program allows foreign nationals to obtain a US Green Card (permanent residency) by investing in a new commercial enterprise that creates at least 10 full-time jobs for qualified US workers. Investors, along with their spouses and unmarried children under 21, gain permanent residency, generally requiring a minimum investment in a Targeted Employment Area (TEA) or for non-TEA projects.

 

Business Standard spoke to immigration experts who explained what the warning means and how Indian investors can respond to this development. 

 

How soon could retrogression happen?

 

According to Sukanya Raman, immigration attorney and country head at Davies & Associates, EB-5 visa issuances to Indian nationals have increased over the past decade, with a sharp rise after the EB-5 Reform and Integrity Act (RIA) of 2022.

 

“A key driver has been the ability for applicants already in the US on non-immigrant visas to file concurrently, enabling them to obtain employment authorisation document (EAD) and advance parole (AP) within approximately 3 to 6 months, even while their I-526E petition remains pending. As a result, EB-5 has evolved from a niche offering for ultra-high-net-worth individuals into a mainstream, strategic immigration pathway for Indian professionals and entrepreneurs seeking long-term stability in the United States,” she told Business Standard.

 

She added that the programme is now in a pre-retrogression warning phase. The next one to three Visa Bulletins will be crucial, especially as the September 30, 2026 deadline approaches.

 

Rohit Turkhud, Member, CSG Law, said the warning is limited to the “Unreserved” category.

 

“The State Department has not commented on any backlog in the Reserved categories. We don’t know if that is an error, which is entirely possible, or if it reflects their correct concern. Just knowing the large number of cases in the Reserved categories, it would not be surprising if they announce a cut-off date for those Reserved categories too. This could come to pass as early as June 2026. At this point every month could end up establishing a cut-off date,” he told Business Standard. 

 

Nicholas Mastroianni III, President & CMO of US Immigration Fund (USIF), explained how applicants can track developments.

 

“For applicants tracking this themselves, the Visa Bulletin is published monthly at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html. Section E is where the State Department's Unreserved concern currently appears. The USCIS chart designation at uscis.gov/visabulletininfo determines whether applicants inside the United States can continue filing for adjustment of status. And the clearest signal of change would be any specific date replacing the ‘C’ notation under Final Action Dates for India in the Reserved categories,” he told Business Standard.

 

Rising demand from Indian investors

 

“FOIA data from USCIS shows that of approximately 13,520 EB-5 petitions filed worldwide between April 2022 and July 2025, India accounts for roughly 22 per cent. That places India as the second-largest source country in the programme after China,” said Mastroianni III.

 

Turkhud said several factors are driving demand:

 

• Emotional readiness to pursue EB-5

• Decision to make the US a long-term personal and career base

• Economic ability to invest

• Large backlogs in EB-2 and EB-3 categories

• Access to capital through ESOPs and RSUs

• The September 30, 2026 sunset-linked deadline

 

Mastroianni III pointed to the May 2026 Visa Bulletin, which shows EB-2 India at a Final Action Date of July 15, 2014 and EB-3 India at November 15, 2013.

 

For an Indian professional filing today in either category, that translates into a wait of several years.

 

Recent policy changes have also added pressure. These include:

 

• The September 19, 2025 announcement of a $100,000 fee for new H-1B hires

• The October 30, 2025 removal of the automatic 540-day extension for H-4 EAD renewals

• The weighted H-1B lottery introduced on February 27, 2026

 

Turkhud described the combined effect of the H-1B and H-4 changes as “disastrous”, citing cases where spouses were stranded in India after cancelled visa appointments, with no return possible until 2027. He also said F-1 applicant numbers have dropped by around 40 per cent.

 

What happens if EB-5 becomes unavailable?

 

“A cut-off date changes one thing immediately for Indian applicants: the ability to apply for a US green card at the same time as filing the EB-5 investor petition. Once a cut-off date is in place, that combined filing is no longer possible. There is a second chart the government sometimes permits as an alternative, but I would not advise anyone to rely on it when they have the option to file before a cut-off is announced.

 

One important distinction. The deadline that really matters under the current law is for filing the investor petition itself, not the combined green card application. The petition can be filed at any time on or before September 30, 2026, and once filed, it secures the applicant's place in the queue. Not every applicant is in a position to file the combined application anyway. What protects their position for the long run is getting the investor petition in.

 

For those already in the system, having an approved investor petition is not the same as having a green card. I have seen cases where the green card application remains under review for over a year after the petition itself was approved. If an applicant is currently on an H-1B or similar visa, my general advice is to stay on that status through to the green card rather than depending only on the work authorisation that comes with EB-5,” Turkhud said.

 

Mastroianni III said India remains “Current” in EB-5 Reserved categories under the May 2026 Visa Bulletin.

 

“For anyone planning to apply in 2026, the practical point is straightforward. India in the EB-5 Reserved categories (Rural, High Unemployment Area, and Infrastructure) remains at ‘C’ for Current under the May 2026 Visa Bulletin. Filing today in a Reserved category locks in the applicant's position before any cut-off can be established. Waiting means taking the chance that the situation changes first,” he said.

 

How should investors assess timelines and risks?

 

Under the May 2026 Visa Bulletin, India in EB-5 Rural, High Unemployment Area, and Infrastructure remains Current on both the Final Action Dates chart and the Dates for Filing chart.

 

“With that in place, three things deserve weight in an investor's assessment.

 

The first is source of funds documentation. Turkhud described the practical standard he applied before advising clients to wire funds as near-complete documentation, not the statutory ‘preponderance of evidence’ threshold. For staggered payment cases, he said investors need a clear roadmap for remaining contributions.

 

The second is the operational track record of the regional centre. EB-5 is a five to seven-year relationship. The investment is at risk under statute, and the programme's primary purpose is to obtain a US green card, not to generate investment returns.

 

The third is category selection. Rural projects have been approved in under 6 months under the current process, with some approvals coming in as fast as 2 months,” Turkhud said.

 

He added that approval of the investor petition does not automatically lead to a green card and that adjustment of status can remain pending for more than a year after approval.

 

EB-5 still a viable route

 

“As best as one can guess from the trend over the last 11-plus years, EB-5 is and will continue to be a viable alternative for India-born applicants. I am very hopeful for the longevity of the EB-5 programme.

 

It is the only programme that brings money into the US at no cost to taxpayers. It is the only programme that creates jobs for US workers. It is the only programme that funds itself through USCIS filing fees. I cannot think of one good reason why it should not continue as a viable immigration programme,” said Turkhud.

 

Mastroianni III said the September 30, 2026 grandfathering deadline is the most important date for Indian families considering EB-5. Petitions filed on or before that date will continue under current rules, regardless of future changes after the programme’s September 30, 2027 sunset.

 

“No one should cross that September 30, 2026 deadline if they want to protect their EB-5 interests,” Turkhud said.

 

“Given the current trajectory, we are advising clients who are seriously considering EB-5 to move forward with their petitions at the earliest opportunity to mitigate the risk of future backlogs and visa unavailability,” Raman said.