EB-5 Set Asides: Remain “Current” for all countries including China, Taiwan and India; all qualifying investors in the US may file Adjustment of Status (Form I-485)
Unreserved Visas (pre-RIA Investors): No advancement for China or India
The June Visa Bulletin from the U.S. Department of State shows no change in the EB-5 visa categories from last month.
Note: Impending EB-2 and EB-3 Retrogression: According to the State Department’s June Visa Bulletin, high demand in the EB-2 and EB-3 categories will most likely trigger a retrogression in the worldwide EB-2 and EB-3 Final Action dates in next month’s July Visa Bulletin. If you are in H1-B and/or waiting for EB-2 or EB-3 visa number, you may want to consider investing in an approved reserved-visa EB-5 project to expedite your immigration process.
Importance of the Visa Bulletin for EB-5 Investors
For EB-5 investors, understanding the Visa Bulletin is critical. It not only impacts their timeline for obtaining a visa but also affects their strategy and planning for their investment and migration journey.
Being aware of how Chart A and Chart B function, and the implications of retrogression, helps investors navigate the complexities of the immigration process more effectively. Thus, the Visa Bulletin serves not just as an informational document but as a strategic tool in the hands of EB-5 investors, guiding them through their immigration journey.
In the EB-5 program, investors can receive a Green Card through two main processes: Adjustment of Status (AOS) or Consular Processing. Investors outside the U.S. must wait for the Green Card petition approval before scheduling a consulate interview.
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 of 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, these investors can access advanced Green Card benefits within 2 to 3 months, 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, experiencing long waits due to EB-2 and EB-3 visa retrogression, can circumvent lengthy delays by investing in a High Unemployment or Rural TEA EB-5 Project and filing for AOS concurrently. However, caution is advised for investors from these regions due to potential upcoming retrogression in the High Unemployment category, despite it currently appearing as “Current.” Conversely, Rural EB-5 investors are less likely to face immediate retrogression, benefiting from a higher allocation of set-aside visas in this category, which suggests less severe future delays compared to other categories.
Final Action Dates
Chart A: This chart indicates when the actual visa numbers are available. If an investor’s priority date is earlier than the date listed in Chart A, their visa can be issued, or their status adjusted.
The chart above shows the final action dates for employment-based immigrant visas as detailed in the June 2024 Visa Bulletin. These cut-off dates establish when immigrant visas become available, depending on the applicants’ priority dates.
The priority date marks the time when the United States Citizenship and Immigration Services (USCIS) first receives the Green Card application. For EB-5 investors, this is the filing date of Form I-526E.
Applicants whose priority date falls before the final action date in their category are eligible to move forward with their immigrant visa application.
When a final action date is denoted as “C” or “current,” it means that there is no backlog for that category for the specific nationality, allowing for immediate issuance of the immigrant visa upon 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 pursue 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 shows when applicants may file their visa applications or adjustment of status applications before a visa number becomes officially available. It’s used to allow investors to prepare and submit their applications in advance, ensuring they are ready for processing as soon as a visa number is available.
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 June.
Chart B cut-off dates are unchanged for China (Jan. 1, 2017) and India (Apr. 1, 2022). All other countries remain “Current”.
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 outpaces 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, 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
We advise EB-5 investors from high-volume countries like China, India, Taiwan, Vietnam, and South Korea to carefully select their project and visa category to avoid visa retrogression. To mitigate the risks and effects of retrogression, applicants should analyze which EB-5 categories currently have the most visas available. However, even though the Visa Bulletin iscrucial for understanding visa status, it falls short as a forecasting tool.
The Visa Bulletin serves as a monthly snapshot of visa availability but lacks predictive capabilities, making it an unreliable tool for forecasting long-term visa trends. It doesn’t include predictive modeling or account for changes in immigration laws, policy shifts, or demand fluctuations. The bulletin is inherently reactive, adjusting only to applications received and processed, without providing historical data to analyze past trends or anticipate future shifts.
Given these limitations, while the Visa Bulletin is essential for understanding current visa availability, it should not be relied upon exclusively to predict future availability or retrogression trends. Stakeholders, especially those involved in long-term immigration planning like EB-5 investors, are advised to consult immigration experts and stay informed through multiple channels to better anticipate and manage changes in the visa landscape.
