The EB-5 Immigrant Investor Program offers foreign nationals and their families a unique opportunity to obtain U.S. green cards by investing in a qualifying EB-5 project. Although the EB-5 program is one of the fastest and easiest ways to immigrate to the United States, it can still be a very complicated process. It is not uncommon for applicants to experience various delays in the process and longer than usual processing times.
One issue that can create delays in one’s EB-5 journey is a visa backlog. For each fiscal year, United States Citizenship and Immigration Services (USCIS) allocates approximately 10,000 visas to the EB-5 program, and no country is supposed to get more than 700. This means that some countries experience a visa backlog when the demand for EB-5 visas is higher than the number of visas available. To help applicants with this problem, the U.S. Department of State – Bureau of Consular Affairs publishes a monthly Visa Bulletin that shows which countries currently have a visa backlog and includes important dates for applicants.
Understanding the Visa Bulletin
The Visa Bulletin consists of two separate charts: Chart A and Chart B. Both charts separate EB-5 investors into two categories: regional center investors and non-regional investors. Although the Visa Bulletin differentiates between the two different groups of investors, it is rare for the dates to ever differ between the two. For both charts, “C” is used to illustrate which countries are current, meaning they do not have a visa backlog.
Final Action Dates
Chart A in the monthly Visa Bulletin contains the final action dates for EB-5 applicants. This date applies to applicants that have filed their I-526 petition and already received approval. Those from countries with current final action dates can proceed with their EB-5 process and receive their visa. However, those from countries that are not current must wait.
Applicants that do not have a current final action date must refer to their priority date. EB-5 investors receive a priority date from USCIS when they file their I-526 petition. Those with a priority date before the final action date may proceed with the process. If an EB-5 investor has a priority date after the final action date, they must wait for the final action date to move ahead of their priority date.
As of August 2020, China and Vietnam are the only countries affected by final action dates, with India having become current in July 2020. However, all EB-5 investors should continue to monitor the Visa Bulletins for any possible changes. Investors from up-and-coming EB-5 countries like Brazil, Taiwan, and South Korea should keep an eye on the Visa Bulletin in case of a possible visa backlog due to growing demand.
Dates for Filing
Chart B of the Visa Bulletin shows the dates for filing, which only applies to countries with unusually large backlogs. USCIS asks applicants from these countries to wait to file their visa applications until a certain date to avoid a large number of applications in the system. Currently, only Chinese EB-5 investors are required to wait to file their applications.
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Other Factors to Consider
Unfortunately for EB-5 applicants, the EB-5 process is very messy and complicated. Final action dates and dates for filing are not the only issues that can leave applicants waiting for what feels like an eternity. Many times, an EB-5 investor’s final action date may be current, but due to other setbacks, they are not eligible to receive their visa. The applicant may still be waiting for their I-526 petition to be approved or may not be able to secure an interview appointment to file their visa application.
Often times, there are outside factors that cause halts in the EB-5 process. For example, due to the COVID-19 pandemic, the United States temporarily closed all U.S. embassies and consulates. These closures make it impossible for any overseas EB-5 investors to apply for their EB-5 visas. This unique circumstance forced the final action date for domestic investors to leap forward to prioritize the small number of domestic applicants. The anticipated influx of applications that will occur when the U.S. embassies reopen could cause major visa retrogressions.
Visa retrogressions occur when the number of applications exceeds the number of available visas. When this happens, final action dates move backward to account for the influx of eligible visa applicants. Therefore, a priority date that is before the final action date one month might not make the cut off the next month due to these fluctuations. Because of this, it can be difficult for applicants to gauge their wait times during their EB-5 journey.
Visa Availability Approach
In April 2020, the Immigrant Investor Program Office (IPO) implemented a new visa availability approach for the processing of I-526 petitions. Under the new approach, EB-5 applications from countries with readily available visas are prioritized over applications from countries experiencing backlogs. The IPO states that they use Chart B of the monthly Visa Bulletin for this new approach. If, under Chart B of the Visa Bulletin, an EB-5 applicant would not be eligible to apply for a visa in a given month, their I-526 petition will not be processed for adjudication.
Knowing this, EB-5 applicants can use Chart B of the monthly Visa Bulletins to help estimate the potential wait times for I-526 approval. This new approach means that applicants from backlogged countries will now experience longer wait times than those from non-backlogged countries.
While not all investors are affected by final action dates and dates for filing, it is important that all EB-5 investors remain up to date with the monthly Visa Bulletin. This can ensure that investors are aware of any changes or delays in the process, as well as new backlogs that may occur. Aside from the monthly Visa Bulletins, investors can also use the Check Case Processing Times page on USCIS website to help estimate their I-526 petition processing time.
Written on behalf of Sam Silverman of EB5AN: Sam has extensive real estate development, management, financing, and brokerage experience in Florida, Pennsylvania, California, Georgia, and internationally in the People’s Republic of China. Prior to EB5AN, Sam served as the director of corporate strategy and expansion for professional golfer Jack Nicklaus in the People’s Republic of China, living full time in Beijing. Sam was also previously employed by the Boston Consulting Group, one of the top management consulting and business strategy firms in the world, where he worked directly with Fortune 500 companies in the food service, media, manufacturing, hospitality, and real estate spaces in the U.S., Europe, and Middle East. Sam is also a Forbes 30 Under 30 National Winner for Social Entrepreneurship. Sam holds a B.A. Economics with a concentration in Mandarin Chinese from Yale University, a Certificate in Financial Accounting from the London School of Economics and Political Science, and an M.B.A. from the Stanford Graduate School of Business.