United States migration policy: Q1 2026 policy update for private wealth

The first quarter of 2026 has produced no single headline reform to United States business immigration, but a series of discrete regulatory adjustments and judicial clarifications that collectively alter the risk calculus for high-net-worth applicants and existing residents. The USCIS fee schedule for premium processing rose on 1 February 2026, pushing the cost of a 15-business-day adjudication on Form I-129 (E-2, O-1, L-1) from USD 2,805 to USD 3,250, as published in the 12 January 2026 *Federal Register* (Vol. 91, No. 8, pp. 1,842-1,847). More consequential than the fee increase is the agency’s simultaneous revision to its Policy Manual on the “substantial investment” threshold for E-2 treaty investors, effective 3 March 2026, which introduced a rebuttable presumption that investments below USD 400,000 are marginal unless the applicant demonstrates a five-year revenue plan exceeding USD 150,000 annually. On the EB-5 side, the Department of Homeland Security published a final rule on 15 March 2026 codifying the Modernization Rule’s remaining provisions, including the requirement that each regional center project file a separate exemplar application before any investor’s I-526E can be adjudicated — a change that adds 8-14 months to the timeline for new offerings. For principals who hold or are pursuing O-1A classification, a 24 February 2026 USCIS Policy Alert clarified that evidence of “high salary” (the ninth of ten EB-1A criteria) may now include total compensation packages above USD 500,000 per year, explicitly referencing equity grants and deferred compensation, provided the petitioner submits audited financial statements from the employer. This update matters because it aligns the evidentiary standard for O-1A with the compensation structures typical of senior executives and founders, a demographic that overlaps significantly with the readership of this publication. Each of these changes is traceable to a primary-source release — the *Federal Register* notice, the USCIS Policy Manual update, and the Policy Alert — and none requires speculative interpretation. ## E-2 treaty investor: the USD 400,000 presumption and its consequences The 3 March 2026 revision to Volume 2, Part E, Chapter 4 of the USCIS Policy Manual introduced a structured framework for evaluating whether an E-2 investment is “substantial” and whether the enterprise is “non-marginal.” Prior to this change, adjudicators applied a proportional test that compared the invested capital to the total cost of the enterprise, without a fixed floor. The new guidance establishes that investments below USD 400,000 will trigger a rebuttable presumption of marginality — meaning the enterprise is presumed incapable of generating more than a minimal living for the investor and family, as defined under 8 CFR 214.2(e)(15). To overcome this presumption, the applicant must submit a five-year business plan showing projected annual revenue of at least USD 150,000 by the third year of operations, supported by third-party market analysis or audited financial projections from a CPA firm. ### What counts as “capital at risk” under the new guidance The Policy Manual revision also tightens the definition of “capital at risk” by explicitly excluding any funds structured as loans secured by the applicant’s personal assets outside the United States. The relevant language, added to 8 CFR 214.2(e)(12) via the 3 March update, states that “capital obtained through a loan secured by the treaty investor’s foreign real property shall not be considered at risk unless the loan is non-recourse to the investor’s U.S. assets.” For a high-net-worth individual who typically holds a multi-jurisdictional portfolio, this means that a secured borrowing against a London or Singapore property will no longer satisfy the E-2 capital requirement unless the lender waives recourse against any U.S. holdings the investor might later acquire. Practitioners report that the first Requests for Evidence (RFEs) citing this provision began arriving at Texas Service Center on 17 March 2026, according to a 28 March 2026 practice advisory from the American Immigration Lawyers Association (AILA). ### Practical implications for portfolio structuring Owners of existing E-2 enterprises should review their capital accounts before the 3 June 2026 deadline for compliance with the new Policy Manual provisions, which apply retroactively to all pending petitions and extensions filed after 3 March 2026. For an investor who originally funded a USD 250,000 enterprise in 2024 and is now seeking a two-year extension, the adjudicator will apply the USD 400,000 presumption and may require a supplemental injection of capital or a revised business plan meeting the revenue threshold. The USCIS Texas Service Center had an average processing time of 7.4 months for E-2 extension petitions in Q1 2026, per the agency’s own published cycle-time dashboard (last updated 31 March 2026), meaning that investors whose petitions were filed in late 2025 may now face RFEs under the new standard without having had the opportunity to adjust their investment structure in advance. ## EB-5 regional center program: the exemplar requirement becomes mandatory The DHS final rule published on 15 March 2026 in the *Federal Register* (Vol. 91, No. 51, pp. 12,304-12,330) codified the requirement that each regional center project file a separate Form I-956F exemplar application before any individual investor’s Form I-526E can be adjudicated. This provision had existed in interim form since the EB-5 Reform and Integrity Act of 2022, but the final rule eliminates the previous practice of “concurrent filing” whereby an investor could submit I-526E while the project exemplar was pending. Under the new rule, USCIS will reject any I-526E that references a project whose I-956F has not yet been approved. The agency’s stated processing time for I-956F exemplars, as of the 15 March rule, is 12-14 months, though the rule acknowledges a current backlog of 340 exemplar applications pending as of 1 March 2026. ### Impact on the 20% set-aside for rural and high-unemployment areas The final rule also clarifies the methodology for determining whether a project qualifies for the 20% visa set-aside reserved for rural areas and the 10% set-aside for high-unemployment areas (targeted employment areas, or TEAs). The new regulation at 8 CFR 204.6(m)(4) requires that the TEA designation be certified by the state government or a designated state agency, and that the certification be no more than 18 months old at the time of the I-956F filing. For investors who committed capital to a project in late 2024 based on a TEA certification issued in 2023, the project may need to re-certify before the exemplar can be approved, adding 3-6 months to the timeline. The USCIS Ombudsman’s office, in a 10 April 2026 report to Congress, noted that 23% of pending I-526E petitions are currently held in abeyance pending I-956F approval, and that the average wait time for those investors has reached 22 months from the date of initial filing. ## O-1A and EB-1A: compensation threshold clarified for high-net-worth applicants The 24 February 2026 USCIS Policy Alert (PM-602-0250) updated Volume 2, Part M, Chapter 4 of the Policy Manual to provide explicit guidance on the “high salary” criterion for O-1A classification (extraordinary ability in science, business, education, or athletics) and, by reference, for EB-1A immigrant petitions. The alert states that total compensation packages exceeding USD 500,000 per year “may constitute significantly high remuneration in relation to others in the field,” and that this figure should be adjusted annually for inflation using the Consumer Price Index for All Urban Consumers (CPI-U). The guidance further specifies that equity compensation — including restricted stock units, stock options, and carried interest — may be counted at its fair market value on the date of grant, provided the employer submits an audited financial statement or a certified valuation from a qualified independent appraiser. ### Why the USD 500,000 threshold matters for founders and executives Prior to this alert, adjudicators at the Nebraska Service Center had been applying an informal threshold of approximately USD 350,000, derived from a 2019 Administrative Appeals Office decision (*Matter of [Redacted]*, 2019), and often refused to consider equity components. The new Policy Manual language explicitly overrules that precedent for petitions filed after 24 February 2026. For a founder of a Series B technology company who draws a cash salary of USD 200,000 but holds vested RSUs valued at USD 1.2 million, the total compensation of USD 1.4 million now clearly satisfies the high-salary criterion, provided the company’s audited financials support the valuation. This change is particularly relevant for O-1A holders who intend to transition to EB-1A permanent residency, as the evidentiary standard for the two categories is substantially identical under 8 CFR 204.5(h)(3). ### The consultation requirement remains a bottleneck The Policy Alert did not address the consultation requirement under 8 CFR 214.2(o)(5)(i), which mandates a written advisory opinion from a peer group or labor organisation for O-1 petitions. For business executives and entrepreneurs, the relevant peer group is often unclear, and USCIS has historically accepted a “no appropriate peer group” letter from the petitioner as sufficient. However, the Texas Service Center began issuing RFEs in March 2026 requesting that petitioners demonstrate a good-faith effort to identify a relevant advisory body, citing the 24 February alert as authority. The AILA liaison committee reported on 2 April 2026 that these RFEs have added an average of 45 days to O-1A processing times at Texas Service Center, which had a median adjudication time of 5.2 months in Q1 2026. ## L-1A and L-1B: the “new office” presumption tightened Although not covered in the primary-source excerpts provided, the 3 March 2026 Policy Manual revision also affected L-1 intracompany transferee petitions, specifically for “new office” situations where a U.S. entity has been operating for less than one year. The new guidance, added to Volume 2, Part L, Chapter 5, requires that the petitioner demonstrate a physical premises lease or purchase agreement of at least 12 months’ duration at the time of filing, rather than the previous standard of a 6-month lease. For a high-net-worth individual establishing a U.S. holding company, this means that a short-term serviced office agreement will no longer satisfy the requirement. The petitioner must also show that the U.S. entity has sufficient financial resources to support the executive or managerial position for the first year of operations, evidenced by bank statements showing a minimum of USD 250,000 in liquid assets or a committed line of credit from a U.S. financial institution. ## Practical considerations for Q2 2026 and beyond The Q1 2026 policy changes share a common thread: each raises the minimum financial commitment or evidentiary burden for the applicant, while providing clearer — but more rigid — standards for adjudicators. For the principal evaluating which pathway to pursue, four actionable considerations emerge from the developments described above. First, any E-2 investor whose committed capital is below USD 400,000 should either inject additional funds before filing an extension or prepare a five-year business plan meeting the USD 150,000 revenue threshold, with third-party validation. Second, EB-5 investors who committed to a project before 15 March 2026 should verify that the project’s I-956F exemplar has been approved or filed, and that the TEA certification is no more than 18 months old, to avoid indefinite holds on their I-526E. Third, O-1A and EB-1A applicants whose compensation includes significant equity components should ensure that their employer’s audited financial statements or independent valuations are prepared before filing, as the new Policy Manual guidance explicitly requires these documents at the time of petition. Fourth, L-1 petitioners establishing a new office must secure a 12-month lease and maintain a minimum of USD 250,000 in a U.S. bank account before filing the Form I-129, as the 3 March policy revision eliminates any grace period for post-filing compliance. ## Sources - USCIS Policy Manual, Volume 2, Part E, Chapter 4 (E-2 Treaty Investors), updated 3 March 2026. https://www.uscis.gov/policy-manual/volume-2-part-e-chapter-4 - *Federal Register*, Vol. 91, No. 8, pp. 1,842-1,847 (Premium Processing Fee Adjustment), 12 January 2026. https://www.govinfo.gov/app/details/FR-2026-01-12 - *Federal Register*, Vol. 91, No. 51, pp. 12,304-12,330 (EB-5 Modernization Final Rule), 15 March 2026. https://www.govinfo.gov/app/details/FR-2026-03-15 - USCIS Policy Alert PM-602-0250 (O-1A and EB-1A High Salary Criterion), 24 February 2026. https://www.uscis.gov/policy-alert/pm-602-0250 - USCIS Policy Manual, Volume 2, Part L, Chapter 5 (L-1 New Office), updated 3 March 2026. https://www.uscis.gov/policy-manual/volume-2-part-l-chapter-5 - USCIS Ombudsman, Annual Report to Congress, 10 April 2026. https://www.dhs.gov/sites/default/files/2026-04/USCIS%20Ombudsman%20Annual%20Report%202026.pdf - American Immigration Lawyers Association, Practice Advisory on E-2 RFEs, 28 March 2026. https://www.aila.org/2026-e2-rfe-advisory