No Changes in EB-5 Final Action Dates
India EB-2 and EB-3 advance one month
EB-5 Set Asides: Remain “Current” for all countries, including China and India; all qualifying investors in the US may file an Adjustment of Status (Form I-485)
Unreserved EB-5 Visas (pre-RIA Investors): No forward movement for China and India
The August Visa Bulletin from the U.S. Department of State shows no change in the EB-5 visa categories compared to last month.
India EB-2 and EB-3: Priority Dates remain backlogged for 12 years but experienced one-month advances to 15-Jul-12 and 22-Oct-12, respectively. No change for China.
Final Action Dates
Chart A: This chart shows when actual visa numbers are available. If an investor’s priority date is earlier than the date listed in Chart A, they are eligible to have their visa issued or their status adjusted.
The chart above outlines the final action dates for employment-based immigrant visas as specified in the August 2024 Visa Bulletin. These cut-off dates determine when immigrant visas are made available based on the applicants’ priority dates. The priority date is established when the United States Citizenship and Immigration Services (USCIS) first receives the Green Card application, which for EB-5 investors is the filing date of Form I-526E. Applicants whose priority date precedes the final action date in their respective category are eligible to proceed with their immigrant visa application. When a final action date is marked as “C” or “current,” it indicates that there is no backlog for that category and nationality, allowing for the immediate issuance of the immigrant visa following I-526E approval.
Reserved Visas: Current for all countries including China and India. Qualifying applicants in the US filing their I-526E Petitions who have invested in Reserved Visa Categories may do Concurrent Filing.
Unreserved Visas (Pre-RIA Investors): Final action cut-off dates are unchanged for China (Dec. 15, 2015) and India (Dec. 1, 2020). All other countries remain “Current”.
Dates for Filing
Chart B: The chart below indicates when applicants can submit their visa or adjustment of status applications in advance of a visa number becoming officially available. This allows investors to prepare and file their applications early, ensuring they are ready for processing as soon as a visa number is allocated.
However, this is subject to USCIS monthly confirmation that there are more immigrant visas available for the remainder of the fiscal year than there are known applicants for such visas.
Note: USCIS will only honor Chart A in August.
Chart B cut-off dates are unchanged for China (Jan. 1, 2017) and India (Apr. 1, 2022). All other countries remain “Current”.
Importance of the Visa Bulletin for EB-5 Investors
For EB-5 investors, comprehending the Visa Bulletin is essential. It not only influences their timeline for securing a visa but also impacts the strategies and planning for their investment and migration journey. Knowledge of how Chart A and Chart B operate, along with understanding the effects of retrogression, aids investors in effectively navigating the complexities of the immigration process. As such, the Visa Bulletin acts not just as a source of information but as a strategic asset for EB-5 investors, guiding them throughout their immigration journey.
In the EB-5 program, investors have two primary pathways to obtain a Green Card: Adjustment of Status (AOS) or Consular Processing. Investors residing outside the U.S. are required to wait for the approval of their Green Card petition before they can schedule an interview at a consulate.
However, applicants in the U.S., who have invested in Reserved Visa Categories (Rural 20%, High Unemployment 10%, or Infrastructure Projects 2%), have the option to do Concurrent Filing. This process allows them to file their I-526E Petitions alongside Adjustment of Status (AOS, Form I-485), Employment Authorization Document (EAD, Form I-765), and Travel Permit (Advanced Parole, Form I-131) simultaneously. As a result, within 2 to 3 months, these investors can access advanced Green Card benefits, which are valid for 5 years. This arrangement streamlines the process, reducing waiting times and providing immediate advantages like work authorization and travel flexibility.
H1-B visa holders from China and India, who face long waits due to retrogression in the EB-2 and EB-3 visa categories, have the option to bypass these delays by investing in a Targeted Employment Area (TEA) EB-5 Project and concurrently filing for Adjustment of Status (AOS). However, investors from these regions should exercise caution due to the potential for upcoming retrogression in the High Unemployment category, even though it is currently listed as “Current.” In contrast, investors in Rural EB-5 projects are less likely to encounter immediate retrogression, benefiting from a larger allocation of set-aside visas in this category. This suggests they may experience less severe future delays compared to other categories.
Retrogression
The priority date is significant because there is a yearly limit (“Visa Caps”) on the number of EB-5 visas that can be issued, and applicants from countries with a high number of applicants can face visa backlogs, similar to a traffic jam. If demand outstrips supply, the government stops issuing visas for that country, and priority dates can stall or move backward, delaying when applicants can receive their visas. This backward movement, known as “retrogression”, can happen abruptly and delay the family’s immigration process for several years.
When a country is retrogressed, all existing applicants that have not yet received their conditional Green Card must wait until the next fiscal year to become eligible for their Green Card to be issued—even if they already have a I-526E (conditional Green Card) approval. Often times, retrogressions have ripple effects into subsequent years. Retrogression presents significant challenges and uncertainties for EB-5 Visa applicants, impacting their immigration timelines, financial plans, and overall well-being.
The Visa Bulletin and Retrogression
EB-5 investors from high-volume countries like China, India, Vietnam, and South Korea are advised to carefully select their project and visa category to avoid visa retrogression. To minimize the risks and impacts of retrogression, applicants should evaluate which EB-5 categories currently have the most visas available. However, the Visa Bulletin, essential for understanding visa statuses, is not effective as a forecasting tool.
The Visa Bulletin provides a monthly snapshot of visa availability but lacks the capability to predict long-term visa trends. It does not incorporate predictive modeling or account for changes in immigration laws, policy shifts, or demand fluctuations. The bulletin is reactive, adjusting only to applications received and processed, and does not offer historical data to analyze past trends or forecast future shifts.
Given these limitations, while the Visa Bulletin is crucial for understanding current visa availability, it should not be solely relied upon for predicting future availability or retrogression trends. Stakeholders, particularly those involved in long-term immigration planning like EB-5 investors, should consult immigration experts and utilize multiple information sources to better anticipate and navigate changes in the visa landscape.
