Every month, the U.S. Department of State – Bureau of Consular Affairs releases a visa bulletin that reveals which EB-5 investors are eligible to apply for and receive visas. However, the EB-5 Immigrant Investor Program process is complicated—sometimes too complicated for a simple graph. The information in the monthly Visa Bulletin is easy to misunderstand, so this post provides a comprehensive guide on how to understand the information presented in these bulletins.
Example of a Visa Bulletin
The below image is of the Chart A Final Action Dates in the June 2020 Visa Bulletin.
The chart deals with the final action dates for all employment-based visa programs, but only the bottom two rows are relevant for EB-5 investors. Generally, the rows for direct investment and regional center investment are identical, but the chart includes two rows in case of authorization lapses in the regional center program.
Sections marked with “C” indicate applicants from the specified country have a current final action date. That means all investors from that country are currently eligible to receive an EB-5 visa. In the June 2020 visa bulletin, only investors from China, India, and Vietnam are subject to wait times—all other countries are current.
All investors who filed their I-526 petition before the indicated final action date are eligible to proceed with their EB-5 visa process. For example, any Chinese investors who filed before July 15, 2015, are now eligible to receive their conditional permanent resident status, but any who filed on July 15, 2015, must continue to wait.
Not all investors who filed their I-526 petition before the final action date can actually move forward with their EB-5 process, however. A good example is the worldwide U.S. consulate closures as a result of the COVID-19 pandemic, which prevents overseas EB-5 investors from getting visa interviews and moving forward with their applications. In practice, the only investors who can receive EB-5 visas in June 2020 are those already living in the United States who have filed a I-485 petition to adjust their immigration status. Since domestic investors only make up a minority of all EB-5 investors, the final action dates move ahead quickly to accommodate this small group of investors.
A pandemic is not the only situation where applicants who filed their I-526 petition before the final action date are ineligible to claim an EB-5 visa. A “qualified” investor is one who has received I-526 approval and gone through the necessary processes to apply for an EB-5 visa. Even if an investor’s final action date is current, they must still fulfill the requirements to qualify for an EB-5 visa.
Following from this, one should not assume that, for example, most Indian EB-5 investors with a priority date before 2020 have received their EB-5 visa. Instead, many have been lost in the system, still waiting for I-526 adjudication, which has slowed due to the COVID-19 pandemic and the low FY2019 processing volumes at United States Citizenship and Immigration Services (USCIS). When those investors are able to claim their visas, the final action date will need to fall back to accommodate them, resulting in visa retrogression.
How People Think the EB-5 Process Works
Contrary to popular belief, the EB-5 process is not exactly sequential. Though it’s easy to assume that those with earlier priority dates will receive their EB-5 visas earlier, the EB-5 program is too complicated for such a simple process, and as explained above, some investors fall behind in the system for numerous reasons.
This post outlines two scenarios. The first is most people’s assumption of how EB-5 processing works.
In this scenario, each EB-5 investor receives a priority number when they file their I-526 petition. The investors wait in line according to their priority number. The posted final action number in this scenario is 4, which means the first three applicants can receive their visas. If the final action number continues to increase by three per month, all 12 investors will receive their visas within four months. In this hypothetical scenario, investors can easily predict when they will receive their visa based on their priority number, since it is a sequential process.
Unfortunately, this scenario doesn’t reflect reality. In practice, the EB-5 visa process is far messier and is difficult to predict.
How the EB-5 Process Actually Works
In contrast to the first scenario, the second scenario shows that an investor’s priority number does not necessarily predict when they will receive their EB-5 visa. The priority number plays a role only within different stages of the process.
In the second scenario, all investors receive a priority number when they file their I-526 petition, just like in the first scenario. However, instead of waiting in a single line, the applicants end up divided into groups. Some investors’ petitions are delayed, which can happen for a number of reasons, including complicated sources of funds documentation or requests for evidence (RFEs). Since these delays do not adhere to the priority numbers, some applicants with earlier priority numbers fall behind, while others with later numbers move forward.
Then, even once an investor’s I-526 petition is approved, they may not be eligible to receive a visa yet. It may take them a long time to compile and submit their visa application, or they may be unable to schedule a visa appointment—such is the case for overseas EB-5 investors faced with U.S. embassy and consulate closures during the COVID-19 pandemic.
Thus, the only investors in a position to claim a visa are those in the final group. This is the only group the visa bulletin is concerned about. Applicant 10 is the first investor in this group who is unable to claim a visa, so the final action number is set at 10. In this way, even though the final action number in this scenario is 10, investors 2, 4, 5, 7, 8, and 9 are ineligible to claim their visas. If those investors had also been eligible to claim, the final action number would have been 4 instead.
If these investors become eligible to claim a visa in the next month, the final action number will fall back to a lower number, such as 7, to account for the new applicants. Investor 10 should not have necessarily expected their priority number to become current because retrogressions like this can happen anytime.
While messy, this scenario is more reflective of the real EB-5 process. Unfortunately, prediction is extremely difficult, and there’s no surefire way for investors to know when they’ll receive their EB-5 visa.
Real Examples of the Messy EB-5 Process
In October 2018, Charles Oppenheim, chief of the Immigrant Visa Control & Reporting Division at the U.S. Department of State, shared a few tables showing disparities among the pending EB-5 petitions. The process is clearly not linear at all, with some EB-5 investors experiencing extremely long wait times. At the time of Oppenheim’s presentation, a whopping 60 Chinese investors were still waiting for adjudication of their I-526 petitions from as early as 2012 and 2013.
The recent moves forward in final action dates for China, India, and Vietnam from October 2019 to June 2020 are also noteworthy. Of particular interest is India’s rapidly advancing final action date, which has jumped ahead more than two years in the nine-month period. With many Indian EB-5 investors having fallen behind in the system, extreme visa retrogression for Indian investors is entirely possible.