Certain EB-5 investors need to pay close attention to the monthly Visa Bulletins published by the U.S. Department of State – Bureau of Consular Affairs. They don’t affect all EB-5 investors—in fact, as of June 11, 2020, they only apply to investors from China, India, and Vietnam. However, the EB-5 landscape is constantly changing, and investors from up-and-coming EB-5 countries, such as South Korea, Taiwan, and Brazil, should keep an eye on the bulletins in case backlogs build up for their countries.

The Visa Bulletin contains two charts for EB-5 investors: Chart A and Chart B. Both contain two rows for EB-5 investors, drawing a distinction between regional center and direct investors. Rarely, however, do the dates for the two rows ever diverge. The countries specifically listed in the Visa Bulletin are also limited, as only a small number of countries are affected by visa backlogs.

In both charts, “C” refers to current, indicating countries that do not have an EB-5 backlog. These investors can move forward in the EB-5 process freely, but investors from a country that is not current must refer to their priority date to determine whether they can proceed. All EB-5 investors receive a priority date when United States Citizenship and Immigration Services (UCSIS) issues a notice of receipt for their I-526 petition, and if the final action date for an investor’s country is after their priority date, they may proceed.

Final Action Date

Chart A in the Visa Bulletin shows the final action dates for EB-5 investors. The dates apply to investors who have already received I-526 approval and have applied for an EB-5 visa. Since only a limited number of visas are allocated to the EB-5 program each fiscal year, countries with high EB-5 demand can build up backlogs, with more investors than available visas. Investors with current final action dates may be issued their EB-5 visa, but the rest must wait.

As of June 2020, the only countries that have been historically affected by final action date backlogs are China, India, and Vietnam. USCIS has predicted that the Indian final action date will become current by summer 2020, and the prediction seems to be coming true. However, the messy and nonlinear reality of EB-5 processing could spell drastic retrogression for Indian investors in the future.

Date for Filing

Chart B shows the dates for filing and is reserved for countries with particularly large backlogs. To avoid an overwhelmingly high number of applications in the system, USCIS asks certain investors to refrain from even filing their visa application until a certain date, known as the “date for filing.” As of June 11, 2020, only Chinese EB-5 investors are required to wait to file their visa application.

COVID-19 Complications

The COVID-19 pandemic has ravaged the planet and temporarily shut down all U.S. embassies and consulates. In June 2020, the pandemic has yet to abate in many parts of the United States, and accordingly, U.S. consular immigration services abroad have yet to resume. This makes it impossible for overseas EB-5 investors to apply for their visas, but investors already living in the United States under a different visa are still able to receive their EB-5 visa by filing an I-485 petition to adjust their immigration status.

This unusual EB-5 processing reality forces the final action date to leap forward to accommodate the small number of domestic EB-5 investors. When the consulates reopen and overseas investors are once again able to claim EB-5 visas, the sudden influx of eligible investors is likely to cause major retrogressions.

Entrepreneurs around the world aim to relocate to the United States for a better and freer life with unlimited business opportunities. With top-quality universities, state-of-the-art health facilities, and unbeatable freedoms, the United States promises immigrants a better and brighter future for themselves and their families. The United States offers a wide range of start-up visas for entrepreneurs and investors, so individuals who wish to start a business, invest in U.S. workers, or otherwise live and conduct business in the United States have plenty of choice.

The following visas are available to eligible immigrants:

1. EB visas
2. H-1B visa
3. E-2 Treaty Investor visa
4. L-1 visa
5. O visas

Immigrant Visas vs. Nonimmigrant Visas

Not all visas are equal, and different visas offer immigrants different rights and privileges. They can broadly be broken up into two classes: permanent resident visas and nonimmigrant visas. Permanent resident visas, also known as immigrant visas, grant the holder permanent resident status, allowing them to live in the United States indefinitely and live, study, and work freely. Nonimmigrant visas allow people to enter the country temporarily for a specific purpose, such as tourism, education, or employment.

Visas for Foreign Entrepreneurs and Investors

Foreign nationals seek to come to the United States for a variety of reasons, so visa programs are available to cover a wide range of needs. Below are some of the best visas for entrepreneurs and investors.

EB-1 Visa: Immigrants with Exceptional Abilities

EB (employment-based) visas are meant for foreign nationals who are looking to work permanently in the United States. There are five different EB visas, ranked in order of preference, and all require specific or highly advanced skills. The first one, the EB-1 visa, focuses on three different classes of individuals:

• Those with exceptional ability in the sciences, arts, education, business, or athletics, recognized by national or international acclaim (job offer not required)
• Extraordinary professors or researchers who are pursuing tenure
• Managers or executives of multinational companies

Requirements vary based on the type of EB-1 visa a foreign national applies for.

EB-2 Visa: Highly Skilled Immigrants

The second-preference EB visa is the EB-2 visa, which is fairly similar to the EB-1 visa. It also requires a high level of skills, but applicants may need to provide more evidence to prove their skills. Individuals in one of the following categories may apply for an EB-2 visa:

• Those with a job offer that requires an advanced degree or a level of experience that equates to an advanced degree
• Those with exceptionally high skills in the sciences, arts, or business
• Those who request the labor certification (PERM) to be waived because their working in the United States would be beneficial to the country

The evidence that each applicant is required to provide differs depending on their unique situation. An applicant may need to provide proof of their experience or present copies of their degree certificates or professional licenses. An EB-2 applicant is also permitted to apply for visas for their spouse and unmarried children under the age of 21.

EB-3 and EB-4 Visas: Immigrants Addressing Skills Shortages and Special Immigrants

The EB-3 visa is also available to professionals, skilled workers, and certain unskilled workers. The skills requirements are not as strict as they are for the EB-1 and EB-2 visas, but the workers should perform jobs no qualified U.S. workers are available for.

The EB-4 visa is available for special immigrants, which include religious workers, broadcasters, international employees of the U.S. government abroad, members of the armed forces, and Afghan and Iraqi translators. The full list of qualifying EB-4 immigrants is available on the USCIS website.

EB-5 Visa: Immigrant Investors

The final EB visa is the EB-5 visa from the EB-5 Immigrant Investor Program. The EB-5 visa focuses on foreign investors, who can gain a U.S. green card by investing, either directly or via a regional center, in a qualifying EB-5 project.

Both investors and immediate family members—their spouse and unmarried children younger than 21—are eligible to receive U.S. permanent resident status if the investment fulfills EB-5 criteria, including the following:

• The investment amount must be at least $1.8 million or $900,000, depending on whether the EB-5 project is in a targeted employment area (TEA).
• The investor must provide evidence that their EB-5 capital has come from lawful sources.
• The investor must keep their investment capital at risk throughout the investment period.
• The investment capital must fund the creation of at least 10 new, full-time jobs for U.S. workers.

The EB-5 program is generally seen as one of the fastest and easiest ways to immigrate to the United States, although processing times can vary based on the investor’s country of origin.

H-1B Visa: Specialty Occupations

The H-1B visa is a nonimmigrant visa available for those who land U.S. employment in a “specialty occupation.” To apply for an H-1B visa, the applicant must have already been offered a job, and the employer must sponsor the applicant to receive the visa. To qualify for an H-1B visa, applicants must generally have a bachelor’s degree or equivalent experience, and the employer must have been unable to find a U.S. worker or resident for the position. The visa process can take a long time, with a delay of several months before the applicant is able to begin working.

E-2 Visa: Treaty Investors

Like the EB-5 visa, the E-2 visa is available to foreign nationals who invest in a U.S. business. In the case of the E-2 visa, eligibility is determined by treaties the United States maintains with the applicant’s country, which means only investors from specific countries are eligible. The EB-5 visa, in contrast, is open to investors from any country.

The E-2 visa does not stipulate a specific amount to invest, like the EB-5 program does, but the investment must qualify as “substantial” according to the Foreign Affairs Manual and relevant U.S. statute and regulations. Applicants are also required to own at least 50% of the business or operational control. This further distinguishes the E-2 visa from the EB-5 visa, since EB-5 regional center investors are not required to engage in managerial work at their new commercial enterprise.

L-1 Visa: Intracompany Transferees

L-1 visas are used to allow employees of a multinational company to transfer from foreign branches, affiliates, or subsidiaries to the United States. It comes in two varieties: the L-1A visa, which is designated for executives and managers, and the L-1B visa, which is for employees with specialized knowledge who are not necessarily managers.

The O-1 Visa: Individuals with Extraordinary Ability or Achievement

The O-1 visa is similar to the EB-1 and EB-2 visas in that it targets foreign nationals with exceptional skill or achievement recognized by national or international acclaim. It is a nonimmigrant visa that allows the applicant to reside temporarily in the United States to work in their field of exceptional talent. The individual must work in either education, business, athletics, the sciences, the arts, or the motion picture industry.

O-2 and O-3 visas are available to allow people close to the O-1 applicant to temporarily relocate to the United States with them. The O-2 visa is allocated for those deemed “essential” for the O-1 visa holder’s work, such as the agent of an actor, while the O-3 visa allows the O-1 visa holder’s spouse and children to move with them.

What’s the Best Option for You?

The United States offers many ways for entrepreneurs and investors to immigrate, but not all paths are viable for all entrepreneurs. Carefully consider what your needs and goals are—do you want to immigrate to the United States permanently? Are you seeking a high-end job for highly skilled individuals? Are you looking to start a business in the United States? Would you like to make an investment in a U.S. commercial enterprise? Whether you opt for the O-1 visa or the EB-5 visa, it’s important to carefully consider your options, ideally with an immigration attorney.

The EB-5 Immigrant Investor Program is one of the fastest and easiest ways for foreign nationals to secure a life in the United States and enjoy all the benefits that come with it. Every year, investors from around the world apply to the EB-5 program for a better future in the prosperous United States. Despite the relative ease, however, the EB-5 program remains a complicated process with numerous factors to consider. Here are three key aspects prospective EB-5 investors should reflect on at the beginning of their journey.

1. How Much Risk Are You Willing to Take On?

All EB-5 investments must remain at risk throughout the investment period, as stipulated by EB-5 requirements. However, the degree of risk is not specified, so investors are free to decide how much risk they are willing to bear.

Most EB-5 investors are primarily concerned with immigration, not financial returns—many are happy to earn only a small return on investment (ROI) to gain a U.S. green card. Thus, it’s vital for investors to conduct careful due diligence on prospective EB-5 projects to ensure minimal immigration risk. If ROI is important to them, they can also take steps to seek projects with lower financial risk.

Depending on their managerial capabilities, some investors may feel more inclined to invest directly in an EB-5 project because it gives them more control over their EB-5 capital. Direct EB-5 investors must partake in the day-to-day management of the project, meaning their managerial skills can influence their ROI.

EB-5 investors who are less experienced in management or who simply wish to spend their time on other matters may prefer to invest through a regional center. While these investors lose direct control over their funds, they enjoy numerous other benefits, such as loosened job creation requirements. In regional center investments, the regional center managers are responsible for the investors’ ROI, but reputable regional center leaders are seasoned professionals in financial management.

For investors who choose the regional center route, due diligence to select a high-quality regional center is also crucial. Regional center terminations have been a trend in FY2019 and FY2020, with an astounding 44 regional centers losing their regional center status between March and May 2020. Without proper due diligence, EB-5 investors may risk their chances at U.S. immigration by working with a low-quality regional center.

2. What Are the Best Funds to Use for the EB-5 Program?

One key EB-5 requirement is that all investors document the lawful sources of their EB-5 capital in their I-526 petition. Investors can dramatically simplify their I-526 petition by selecting fund sources that are easier to document, saving time and stress and possibly even speeding up their processing time. EB-5 investors should work with their immigration attorney to determine the best funds to use in their situation.

3. What Additional Fees Might You Incur?

The minimum required investment amount for the EB-5 program is $1.8 million or $900,000, depending on whether the project is located in a targeted employment area (TEA). However, EB-5 investors inevitably face more fees related to their participation in the program. Below are a few examples of fees EB-5 investors should consider:

• EB-5 immigration attorney fees
• Filing fees for the I-526 and I-829 petitions (and I-485, if applying from within the United States)
• Regional center administrative fees, if investing through a regional center
• Travel and moving fees to relocate to the United States
• U.S. taxes, depending on when in the year the investor relocates to the United States

It’s also helpful for investors to consider potential financial benefits of living in the United States. If they or their unmarried children younger than 21 wishes to attend college in the United States, they may be eligible for in-state tuition benefits. They can also save on travel expenses to visit family or conduct business in the United States.

The EB-5 Immigrant Investor Program has long been marred with stories of fraud and fakery, but the picture the media paints is far from the reality of the program. While there have indeed been cases of fraud in the EB-5 program—there will always be a minority of bad actors in the world—the vast majority of EB-5 projects involve honest businesspeople and entrepreneurs looking to establish a successful business that creates jobs in their community.

The negative press toward the EB-5 program has increased during the COVID-19 pandemic due to unfounded rumors that President Trump was considering relaxing EB-5 requirements as part of a coronavirus relief bill. Senator Lindsey Graham, who was purported to have headed the initiative, has vehemently denied the allegations, but the damage to EB-5’s reputation had already been done.

Combined with the extremely low adjudication volumes at the Immigrant Investor Program Office (IPO) in FY2019, the situation has fueled animosity toward the program domestically and doubt among prospective EB-5 investors abroad. If the EB-5 industry fails to take action, the future of the program could be in jeopardy.

Sharing Positive EB-5 Stories

EB5 Investors Magazine has decided to combat the negative press and launch an initiative to promote all the good impacts the EB-5 program has had on the United States and everyday U.S. citizens. Given the media stories of EB-5 fraud engraved in the public’s minds, the only way to fight back is with positive press showcasing the economic prosperity and jobs the EB-5 program has brought to the United States.

The magazine is inviting EB-5 regional centers and project companies to submit their stories of successful EB-5 projects that have brought benefits to the American people. The idea of the campaign is to show policy makers, industry professionals, prospective participants, and everyday U.S. citizens how the EB-5 program helps the United States and creates wealth and prosperity in the nation.

Holding USCIS Accountable

The negative press only accounts for a portion of the EB-5 program’s woes in 2020. The low adjudication rates at the IPO since the takeover by Sarah Kendall in FY2019 have been eroding trust and confidence in the program among investors and professionals alike, with some investors opting to pursue immigration programs in other countries instead. However, if United States Citizenship and Immigration Services (USCIS) is held accountable for its failure to do its job, the prospects for the EB-5 program may improve and investors may turn back to the program.

The IIUSA Public Policy Committee is preparing to confront USCIS about its slow and unreasonable adjudication practices in FY2019 and FY2020. Requests for evidence (RFEs) and notices of intent to deny (NOIDs) have been issued with increasing frequency under Kendall’s leadership, and a trend of unreasonable requests in these documents has emerged. If you have received an unreasonable request in an RFE or NOID, please black out the personal information and send the document to education@iiusa.org.

Calling on Congress to Recognize the Merits of the EB-5 Program

IIUSA has a second initiative: a public letter of support for the EB-5 program addressed to Congress. The letter details the many benefits the EB-5 program has brought to the United States, including generating $20.6 billion in investments and 731,792 jobs between 2008 and 2015. EB-5 stakeholders, project developers, and businesses all around the country are invited to voice their support for the EB-5 program and all the good it brings to the United States.

The EB-5 Immigrant Investor Program offers a unique opportunity to foreign investors and their immediate family members to obtain U.S. permanent resident status in exchange for a successful qualifying investment in an EB-5 project. An investor can include their spouse and unmarried children younger than 21 on their EB-5 visa application.

At the end of the EB-5 process, the entire family can receive permanent resident status in the United States by each filing an I-829 petition. Investors and their families file the I-829 petition after two years of conditional permanent residency and may remove the conditions if the investment met all the EB-5 criteria, such as the creation of at least 10 new, full-time jobs for U.S. workers.

Unfortunately, however, sometimes an investor may pass away during the EB-5 process. This leaves their dependents not only riddled with grief but also unsure about the future in the United States they had been looking forward to.

Special Legislation for Deceased EB-5 Investors

New legislation to address the concerns of EB-5 families in the event of the primary applicant’s death was enacted in 2009 as part of the Immigration and Nationality Act (INA). The statutory provision, INA 204(l), permits a deceased investor’s dependents to apply “adjustment of immigration benefit” under certain conditions. The main condition is that the investor meets the definition of the term “qualifying relative,” which INA 204(I) does not define. Thus, United States Citizenship and Immigration Services (USCIS) decides who meets the criteria of a “qualifying relative.”

What Are the Requirements to Be a Qualifying Relative for the EB-5 Program?

The term “qualifying relative” refers to the main applicant, not to their relatives who are included in the application. USCIS defines a “qualifying relative” as someone who had applied to the EB-5 program shortly before their death, regardless of whether their petition is pending or approved at the time of death. Spouses and unmarried children younger than 21 of such investors may be eligible to receive EB-5 visas based on their relationship to the qualifying relative.

Eligible family members of qualifying relatives may proceed with their application for a U.S. green card if they satisfy the necessary residency requirements. Fundamentally, qualifying family members will be permitted to proceed with their immigration to the United States as if the principal applicant had not died. It’s not necessary for all family members to meet the residency requirements as long as one does.

What Does the Residency Requirement Entail?

The residency requirement consists of two conditions:

• The family member must have been living in the United States when the qualifying relative passed away.
• The family member must continue to live in the United States following the death of the qualifying relative.

The family member is allowed to have been temporarily abroad at the time of the qualifying relative’s death. The key requirement is that their principal dwelling place was in the United States.

Removing Conditions from Conditional Permanent Residency

Matters are trickier in the case of a recent marriage, given the existence of fraudulent marriages to dishonestly obtain U.S. permanent resident status. If the spouse of an EB-5 investor receives conditional permanent resident status as the result of a recent marriage to the investor and the investor then dies, USCIS will investigate the legitimacy of the marriage before granting unconditional permanent resident status to the bereaved spouse.

USCIS’s Discretion to Deny

Whether the dependent family members of a deceased EB-5 investor are granted U.S. permanent resident status is ultimately determined at the discretion of USCIS officers. Even if a family member seems to satisfy all the relevant requirements, USCIS may still decide to deny their application.

EB-5 is a complicated program to begin with, and the death of an investor only complicates matters further. Any family members bereaved of an EB-5 investor who was a qualifying relative should contact an immigration attorney to help them determine what options are available to them.

For the countless foreign investors around the world who wish to relocate to the United States, the EB-5 Immigrant Investor Program is one of the best options. Established in 1990, the program offers foreign investors permanent resident status in the United States for themselves and their immediate family members in exchange for an investment in a qualifying EB-5 project. The program has surged in popularity as a relatively quick and easy means to U.S. immigration.

One of the reasons the program is popular is that it does not require a sponsor. Many employment-based immigration programs require petitioners to find an employer to sponsor them, which is a difficult task, but for the EB-5 program, applicants simply need to possess the required $1.8 million or $900,000, depending on the targeted employment area (TEA) status of the EB-5 project. Avoiding the need to find a sponsor also renders the EB-5 program a quicker immigration program than most others.

Why Your EB-5 Petition Might Be Denied

While the EB-5 program is generally easier than other immigration programs, approval is not guaranteed. As an EB-5 investor, you can face rejection for a variety of reasons, including the following:

• Failing to provide necessary information on the I-526 or I-829 petition
• Failing to provide required documentation, such as a copy of your birth certificate or passport
• Failing to pay the required fees
• Providing inaccurate or inconsistent information
• Failing to invest the required $1.8 million or $900,000 in an EB-5 project
• Investing in a project that doesn’t qualify for the EB-5 program
• Failing to document that your EB-5 capital was obtained lawfully
• Failing to show that your EB-5 capital is at risk for the duration of the investment
• Failing to meet or failing to provide a business plan that shows how you plan to meet the EB-5 job creation requirement

You can minimize your chances of rejection by paying close attention to the above criteria and working closely with your immigration attorney to ensure strict adherence to EB-5 requirements.

How to Handle an EB-5 Rejection

If you do receive a denial, your EB-5 journey is not necessarily over. While the experience is disheartening and discouraging, there may still be actions you can take to salvage your relocation to the United States.

If you receive a denial notice from United States Citizenship and Immigration Services (USCIS), read it carefully. USCIS explains why your petition was denied and provides resources you may consult going forward. Work closely with your immigration attorney and legal advisor to determine the best course of action for your circumstances. Appropriate courses of action may include filing a legal motion, submitting an appeal, reapplying to the EB-5 program, or looking for alternative routes to immigration.

Filing a Legal Motion

If you have substantial new evidence that could persuade an adjudicator to approve your EB-5 petition, you may be eligible to file a legal motion. A legal motion requests the officer who adjudicated your petition to reevaluate it. You may also file a legal motion if you believe the adjudicator made an erroneous judgment in denying your petition, but you must back up your belief with an in-depth explanation. In this case, you should work with an immigration attorney who has experience working with EB-5 investors and is deeply familiar with EB-5 immigration laws.

Filing an Appeal

If you are unable to file a legal motion, or if you do but it is unsuccessful, you may be able to file an appeal against the denial of your EB-5 petition. Appeals against EB-5 denials are generally presented to the Administrative Appeals Officer.

Filing a New EB-5 Application

If your I-526 petition was denied for certain reasons, you may have success with a new application. For example, if your petition is denied because you invested in an ineligible project, you can simply submit a new petition with an investment in a qualifying EB-5 project.

No matter why your petition was rejected or what your options are going forward, working with an immigration attorney is vital. The EB-5 program is incredibly complicated, and if you aren’t familiar with all the intricate rules, success in the face of denial is wholly unlikely.

The COVID-19 pandemic, an unprecedented crisis in the modern world, has changed the world as we know it. The health crisis has already deeply affected the EB-5 Immigrant Investor Program, forcing the temporary closure to the public of United States Citizenship and Immigration Services (USCIS) offices across the nation and the suspension of routine visa services at U.S. embassies and consulates around the world. As the world begins to lift restrictions and emerge from the pandemic, how will international travel and immigration be affected?

While we have never experienced a pandemic of this magnitude in modern times, we have experienced other crises that have affected travel and immigration demand. The September 11 terrorist attacks initially spurred a major decrease in travel demand, but the dip lasted only a few years before people’s wanderlust returned. Travel and immigration were hit again in 2008, when the global recession saw countless trips canceled and reduced travel budgets at corporations, but again, a few years later, consumers and companies alike took to the roads—and sky—once more to travel around the world.

Neither of these crises caused the same level of global disruption as COVID-19 has, so it may take longer for the travel and immigration industries to recover this time—but nothing is certain. The pandemic has remained unpredictable since its debut, and the aftermath may be equally as unpredictable. Airlines, hotels, restaurants, and other travel-related industries have been hit particularly hard by the shutdowns, but at the same time, people have expressed a desire to travel after being confined to their homes for so long. As the crisis begins to subside and people feel safer and safer, more and more of them will regain their desire to travel and immigrate.

Coming out of the pandemic, some foreign investors may be dissatisfied with the way their country handled the crisis or feel insecure about the poor-quality medical infrastructure in their homeland. They may feel safer in the United States, which boasts the world’s most advanced medical facilities. Coupled with the nation’s world-renowned educational institutions and world-class business opportunities, immigrants will continue to set their sights on the United States for a new and better life.

The EB-5 Program Will Facilitate Immigration After COVID-19

Immigration even outside of a pandemic is a difficult and complicated process. For foreign investors who wish to relocate to the United States, the EB-5 program is one of the fastest and easiest ways to achieve this dream. While countless EB-5 investors have had their new lives put on hold because they couldn’t apply for visas due to the consulate closures, the world is beginning to open back up. On June 4, USCIS began reopening its U.S. offices to the public, allowing appointments and other in-person services that had been suspended during the shutdowns.

Prospective EB-5 investors interested in the program should consult with an immigration attorney to discuss the best options for them. For an investment of $1.8 million or $900,000—depending on the targeted employment area (TEA) status of the EB-5 project—they can gain U.S. permanent resident status for themselves and their immediate family members. Indeed, a post-pandemic life in the United States would spell a brighter future for countless families around the world.

On the United States Citizenship and Immigration Services (USCIS) website, EB-5 investors and regional centers can check the estimated processing time range for their I-526, I-829, and I-924 petitions on the Check Case Processing Times page. The page is constantly updated, and as of June 4, 2020, USCIS gives the following estimates for processing times:

I-526: 29.5 to 44.5 months (2.5 to 3.7 years)

I-829: 21.5 to 47 months (1.8 to 3.9 years)

I-924: 58.5 to 119 months (4.9 to 9.9 years)

Investors can also check the estimated processing times for their I-485 petitions, but the times vary by regional office.

One might assume an estimated processing time range of 29.5 to 44.5 months means USCIS is currently processing petitions that have been pending for 29.5 to 44.5 months, but that isn’t the case. “Estimated processing time range” is a bit of a misnomer because the majority of petitions are processed outside of the estimated range.

What the Range Really Means

The estimated processing time range is more an indicator of delays rather than an estimation of average processing times. The lower number in the range is the time by which 50% of petitions have been processed, and the higher number is the time by which 93% of petitions have been processed. Assuming perfect accuracy, this means only 43% of petitions are processed within the estimated time range.

However, naturally, the time ranges are not perfectly accurate. The EB-5 Immigrant Investor Program is far too complicated to predict such metrics with high precision, and the estimates are based on data from two months prior. The most an EB-5 investor can take away from the estimates is a very general idea of when their petition might be processed.

Understanding the Receipt Date for Case Inquiry

It’s no secret that some EB-5 investors are left waiting a considerable period of time for their petition to be adjudicated. The process is particularly complicated for I-526 petitions, since the adjudication process is anything but linear and USCIS introduced a visa availability approach to I-526 processing at the end of March that sees petitions adjudicated based on the immediate availability of visas for the applicant’s country rather than the date of receipt.

To address unreasonably long delays, USCIS offers a “receipt date for case inquiry”—the date before which USCIS must have received a petition before the petitioner is permitted to send a case inquiry. USCIS uses the higher number of the estimated time range (i.e., the time by which 93% of petitions have been adjudicated) to define the case inquiry date. Why USCIS designates only the 7% of petitioners with extremely long processing delays for case inquiries is unclear when those whose petition has been pending for longer than the lower number are also experiencing a longer than average processing period.

Why the Receipt Date for Case Inquiry Can Move Erratically

EB-5 investors who watch the case inquiry date for the chance to inquire about their unusually delayed petition are often confused by the erratic nature of the date, which can sometimes move ahead suddenly or move backward. It seems strange because generally, the date moves steadily, increasing by one day at a time.

The answer is simple: The receipt date for case inquiry is updated automatically each day, but the estimated case processing times are not. The case processing times are updated at irregular intervals, and since the receipt date for case inquiry is based on the upper limit of the range, it can seem like the case inquiry date suddenly jumps significantly at random times.

Historical Average Processing Time vs. Estimated Processing Time Range

Many EB-5 investors have also pointed out the clear discrepancies between the historical average processing time and the estimated processing time range. While it may initially seem confusing, the first thing that’s important to note is that the estimated processing time range is measuring petitions processed two months earlier and the historical average processing time is measuring the average age of petitions currently pending. Since the metrics measure different things, a bit of discrepancy is only natural.

The second thing that’s important to understand is that, as discussed above, the estimated time range does not indicate the mean average processing time but rather the median. Petitions processed unusually quickly or slowly can skew the overall numbers for the mean average but not for the median, which can sometimes result in large discrepancies.

Detailed Data for FY2019 Q1

USCIS doesn’t release detailed data for most quarters, but it did release a comprehensive report on the figures for October to December 2018 (FY2019 Q1). The period reveals a stark difference between the estimated processing range and the actual processing times. Although USCIS gave an estimated processing range of 20.6 to 26.5 months for I-526 petitions, the majority of petitions were adjudicated within 10 to 15 months. The figures make clear the truth of USCIS’s nonlinear processing tendencies.

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.

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On March 18, 2020, United States Citizenship and Immigration Services (USCIS) closed all its offices to the public to help curb the spread of COVID-19. Nonetheless, USCIS continued to adjudicate I-526, I-829, and I-485 petitions for EB-5 investors because they do not require face-to-face contact. With the pandemic beginning to subside and the country starting to reopen, USCIS is planning to reopen its offices on or after June 4 and resume in-person services in accordance with health guidelines.

Individual offices may remain closed, so USCIS urges EB-5 investors to check its office closures page to check the status of the office in their area. Limited emergency in-person services are, however, available at all locations. Those who require emergency services should contact the USCIS Contact Center.

All visitors are expected to follow the new health and safety guidelines to avoid new COVID-19 infections. USCIS plans to reduce the number of appointments and interviews to adhere to the new guidelines, which is likely to lead to slower service than before the pandemic.

Finally, USCIS urges anyone who feels sick, even if they haven’t tested positive for COVID-19, to reschedule their appointment. Individuals who reschedule their appointment due to sickness will not incur a penalty.

Final Action Dates Move Forward in June 2020 Visa Bulletin

The final action dates for Chinese, Indian, and Vietnamese EB-5 investors have all moved forward in the June 2020 Visa Bulletin. India, which has experienced major leaps forward in recent months, continues to move ahead quickly. With a final action date of January 1, 2020, India is likely to become current by summer 2020, in line with USCIS predictions. However, retrogression is possible in the future, since USCIS has announced they are using the final action dates for I-485 petitions.

Webinar with Charles Oppenheim

On June 16, Charles Oppenheim, the chief of the Visa Control and Reporting Division at the U.S. Department of State, intends to hold a webinar with IIUSA to discuss the allocation of EB-5 visas during the COVID-19 pandemic. The webinar is expected to address the recent leaps forward in the final action dates, particularly for Indian EB-5 investors, as well as discuss what will happen if not all the visas allocated for EB-5 investors are issued in FY2020.