The U.S. Department of State’s Monthly Bulletin, also called the Visa Bulletin, is a key source of visa availability information for foreign nationals who want to move to the United States. Every month, the U.S. Department of State – Bureau of Consular Affairs releases an update with charts that show which foreign nationals are eligible to apply for and receive visas.

Applicants who invest under the EB-5 Immigrant Investor Program can track their visa applications and find out when they can apply for adjustment of status to become lawful permanent residents.

However, the EB-5 process is complicated. The information in this monthly Visa Bulletin is easy to misunderstand.

This article will provide information regarding the Visa Bulletin in the context of the EB-5 program.

Why Do We Need a Visa Bulletin?

A Visa Bulletin is important because many people want visas, but not everyone can get one when they want one due to backlogs. These delays happen when there is greater demand for immigrant visas than supply in a certain category or from a certain country.

The U.S. government generally limits the number of visas available to EB-5 applicants from each country. When there are too many applicants for the available supply, the visas are oversubscribed. Qualified applicants must wait until more visas are available before their applications can be adjudicated.

If visas are oversubscribed, something called visa retrogression can happen. Retrogression means the priority dates for a visa category move backward. The State Department “retrogresses” priority dates to make sure annual limits are not exceeded. This means applicants have to wait until their priority dates become current again before their applications can continue to move through the process.

By reading the Visa Bulletin, an investor can sometimes receive warning of retrogression before it happens and gain a better understanding of the process for determining visa availability.

How to Read the Visa Bulletin

To improve your chances of having your petition accepted, study the structure of the Visa Bulletin carefully.

Here are some key terms you should be familiar with.

Visa Categories

The Visa Bulletin groups visas by their particular category, such as family-sponsored or employment-based preference categories. The family preference category is for those who are related to U.S. citizens or lawful permanent residents. Employment-based preference applicants have special skills or qualifications.

Some individuals also fall under other categories, such as the Diversity Visa Lottery Program, Special Immigrant Visas, or adjustment of status applicants.

Priority Date

A priority date—also called a priority number—is the date when the immigrant petition is submitted to the United States Citizenship and Immigration Services (USCIS) or the Department of State. Like a place in line, it determines when an applicant can move forward with their application.

Different visa categories and countries have different priority dates. The application can advance in the process when the priority date is earlier than the listed final action date and becomes “current.”

Current

This means there are enough visas under a visa category and country for all applicants. There is no backlog. Applicants who have received approvals of their petitions can move forward in the process without delay.

Chargeability Area

This is the country or region used for processing an individual’s visa application. This is usually the applicant’s country of birth. This information helps to determine visa availability and priority dates.

Immediate Relative

Generally applies to a spouse, unmarried child under the age of 21, or parent of a U.S. citizen or lawful permanent resident. Immediate relatives are prioritized in the immigration process and are not subject to quotas, so these categories are usually displayed as “current” in the Visa Bulletin.

Cut-Off Date

If an individual’s priority date is earlier than the listed cut-off date, they can continue with the visa application process. Cut-off dates are displayed under the “Final Action Date” section of the Visa Bulletin.

Final Action Date

The Visa Bulletin contains information for each immigrant visa category and country related to the “Final Action Date.” This is the cutoff date for when an individual who has an approved immigrant petition (Form I-526 or Form I-526E) can adjust status, provided they are physically located in the United States.

Dates for Filing

This shows when individuals can start the visa or adjustment of status application process before visas are available. This information is mainly for those who are applying from outside the United States, and shows when required documents can be mailed to the State Department’s National Visa Center.

Country-Specific Columns

Each of these columns reflects a country where demand for visas is high, so waiting times are likely to be longer for applicants from these countries. The column has information about visa processing such as final action dates and dates for filing for that country or region. An applicant can look up their country in this column and better track their own application or find out when they can continue the application process.

What Does the Visa Bulletin Say About the EB-5 Program?

Below are the final action dates for employment-based visas from the April 2024 Visa Bulletin.

The chart deals with the final action dates for all employment-based visa programs, but only the bottom four rows are relevant for EB-5 investors.

EB-5 investors should understand the differences between unreserved and set-aside visas.

Unreserved

Ordinarily, the Immigration and Nationality Act restricts the number of available EB-5 visas to no more than 7% of the total for each participating nationality outside the United States. That number applies to “unreserved” visas.

To qualify for an unreserved visa, an individual must invest at least $1,050,000 in a new commercial enterprise that creates at least 10 full-time jobs for American workers.

Investors under the unreserved category are more likely to face visa retrogression.

As mentioned earlier, sections marked with “C” indicate applicants from the specified country have a current final action date. All investors who have been accepted to the EB-5 program from that country are currently eligible to receive an EB-5 visa. In the April 2024 visa bulletin, only investors from China and India are subject to wait times—all other countries are current.

All investors who filed their I-526E or I-526 petition before the indicated final action date are eligible to proceed with their EB-5 visa process. For example, a Chinese investor who filed for an unreserved visa before December 15, 2015, is now eligible to receive their conditional permanent resident status, but one who filed for an unreserved visa on or after December 15, 2015 must continue to wait.

Reserved

There is a way for EB-5 investors to avoid the 7% cap. They can do this by pursuing a reserved visa instead. This is especially important for investors from populous, high-demand countries like China and India.

To qualify, an individual can invest a lower amount of at least $800,000 in a new commercial enterprise located in a targeted employment area (TEA).

Every fiscal year, 32% of EB-5 visas are reserved for those who invest in TEA projects. Most TEAs are for projects located in rural or high-unemployment areas. The allocations are as follows:

• 20% for rural projects.
• 10% for high-unemployment projects.
• 2% for public infrastructure projects.

As per the latest Visa Bulletin at the time of writing, all reserved categories are current.

Current Status Doesn’t Automatically Mean Your Application Will Proceed

Not all investors who filed their I-526 or I-526E petition before the final action date can move forward with their EB-5 process. Here are some examples of such situations.

Problems With the Immigration System

A good example is the worldwide U.S. consulate closures that happened during the first year of the COVID-19 pandemic. This prevented overseas EB-5 investors from getting visa interviews, effectively putting their applications on hold.

In practice, the only investors who could receive EB-5 visas in June 2020 were those already living in the United States who had filed an I-485 petition to adjust their immigration status. These investors did not need a consulate interview to proceed with their application.

Form Processing Delays

A “qualified” investor is one who has received I-526E approval and gone through the necessary processes to apply for an EB-5 visa. However, even if an investor’s final action date is current, they must still fulfill the requirements to qualify for an EB-5 visa.

Failing to meet these requirements or submitting incorrect or incomplete documentation can cause processing delays.

Large Volume of Applicants

A large number of applications at an overloaded and understaffed USCIS field office can also contribute to delays.

How People Think the EB-5 Process Works

Contrary to popular belief, the EB-5 process is not exactly sequential. It’s easy to assume that those with earlier priority dates will receive their EB-5 visas earlier.

However, 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.

The diagram below shows the way most people assume EB-5 processing works.

In this scenario, each EB-5 investor receives a priority number when they file their I-526E 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, as mentioned earlier, this scenario doesn’t reflect reality.

How the EB-5 Process Actually Works

The scenario below 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-526E petition, just like in the first scenario. However, instead of waiting in a single line, the applicants are divided into groups.

Some investors’ petitions are delayed. This 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.

Even once an investor’s I-526E petition is approved, they still may not be eligible to receive a visa. As previously noted, 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 was the case for overseas EB-5 investors faced with U.S. embassy and consulate closures during the first year of 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 refers to. 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.

Get Your Green Card With EB5AN

Tracking the Monthly Visa Bulletin is a good idea for prospective Green Card applicants who plan to obtain lawful permanent resident status in the United States through the EB-5 program.

Working with EB-5 professionals who have a long track record of success is a great idea.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

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