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H1-B Visa Applicants: Why Staying the EB-5 Course May Be Best


The last two years saw H1-B visa candidates flocking to the EB-5 Immigrant Investor Program, thus creating a niche domestic market for developers involved in the EB-5 program. Part of the reason was that visa retrogression drove investors such as those from India to turn to the EB-5 program as a faster alternative route on their journey to U.S. permanent residency status. That may be changing, however.

Following the release of the October 2020 Visa Bulletin by the Department of State (DOS) in late September, there are rumblings among these niche investors. It seems they may be a bit more hesitant when considering the EB5 investment program. In large part, the shift is due to a significant date jump in employment-based EB-2 and EB-3 visa categories. The change may give the impression that extended wait times for visas are nearing an end. This is not necessarily true.

Yes, Dates for Filing (under Chart B) have vaulted. EB-3 dates, for instance, advanced from February 2010 to January 2015, while EB-2 dates jumped from August 2009 to May 2011. Yet Final Action Dates (Chart A) have advanced only by mere months. This is welcome news among India-born applicants, but there are still a number of important factors to consider.

Read on to learn more about the significance of these date advancements and to understand other key considerations when making decisions about which visa program makes the most sense for your unique circumstances.

Why These Visa Bulletin Date Advancements Are Significant

When it comes to immigrant visa processing, DOS has focused on two cut-off dates since late 2015: the Final Action Dates published in Chart A, and the Dates for Filing published in Chart B. When an applicant has a priority date that is current under Chart B, they and their eligible family members are allowed to apply for an adjustment of residency status. Upon filing their I-485 petition for adjustment of status along with an I-765 and I-131, they become eligible for unrestricted employment authorization (EAD) and advance parole (AP) for travel within 90 days. USCIS currently issues an authorization card including both employment and travel.

While a shift in dates shown in the October 2020 Visa Bulletin is significant, the most exciting news embedded in the changes is that USCIS is accepting I-485 petitions at all. In the last five years, USCIS has rarely used Chart B. The acceptance of these filings will allow new levels of flexibility among EB-2 and EB-3 applicants and their families outside of simply extending an H1-B visa for another term. How so? Within 180 days of approval, they would be allowed to change employers as long as they stay in a similar occupation.

That said, there are still important considerations for EB-2 and EB-3 applicants to make when reevaluating their immigration plans. There are a number of key issues to keep in mind.

What to Make of the Jump in Chart B

USCIS guidelines dictate that Chart B becomes available to applicants already inside the U.S. who wish to adjust their residency status only when more immigrant visas are available than there are applicants in a given fiscal year. In such an unprecedented year—a pandemic and the subsequent closures and delays in USCIS and U.S. Consulate processing on a global scale—we can only speculate that the numbers are skewed. We may see a correction or even a retrogression over the next few years as we navigate back to some sense of normalcy.

Another major contributing factor to the date changes was likely the start of the new fiscal year on October 1, 2020. This creates the possibility of stasis in the Visa Bulletin over coming months.

I-485 Applicants and Further Green Card Delays

Even as there has been significant advancement in dates under Chart B for EB-2 and EB-3 applicants, Chart A dates moved only slightly in these categories. What is certain is that the October 2020 Visa Bulletin’s Chart B allows I-485 petitions to be filed. It is also certain that each I-485 application for an adjustment of status will be placed in a queue until the applicant’s priority date is listed as current in Chart A.

From there, when an applicant’s Final Action Date is current under Chart A, a USCIS adjudicator will take up their Form I-485 to determine eligibility for permanent residency. An approval at this time signals an applicant is eligible for a green card. However, the dates in Chart A can be many years away for a significant number of applicants. In turn, so could their green cards be further delayed.

When Child Applicants Are Waiting on Chart A

USCIS guidelines also say that Chart A is what determines the date for calculating a child’s age. This means a child applicant must wait for their parents’ priority date under Chart A to reach current status before their eligibility for a green card may be determined. While the Child Status Protection Act (CSPA) does allow a child applicant under 21 to freeze their age once their I-140 petition has been filed, once it is approved, the child’s age clock begins to run again. So, when there are significant backlogs on Chart A under the EB-2 and EB-3 categories, there is an increased risk of the child aging out prior to receiving a green card.

Downgrading from an EB-2 to an EB-3 May Be Risky

It’s true, the EB-3 date under Chart B advanced five years and EB-2 dates advanced only two years. And this seems to have been a catalyst for downgrades as a strategy. While downgrading from EB-2 to EB-3 status seems to be trending among Indian nationals since these date changes, EB-2 applicants may want to think twice before making the shift. Should applications to downgrade be submitted en masse, the result is likely to be a further backlog in Chart A under the EB-3 category. Additionally, a downgrade will require a new I-140 submission, which has the potential to increase the risk for children who may be close to aging out already. Furthermore, we imagine a sudden influx of EB-2 applicants away from the program could shift dates ahead of the EB-3 category.

Proposed Increases in Filing Fees and a Flurry of Applicants

Early in the fall of 2020, USCIS announced its intentions to implement fee changes, which included increases on a number of applications and petitions. While the fee increases were delayed past the October 2, 2020 date, by the end of the month the new fee schedule was in effect. Now, an additional fee is required for Forms I-765 and I-131, which accompany an I-485 petition ($490 and $585 respectively). In light of the new acceptance of I-485 applications beginning October 1, thousands of applications poured in to beat the fee increase later in the month. This could lead to processing chaos that won’t be unearthed for months yet.

Why H1-B Candidates Should Continue the EB-5 Investment Process

Further delays in final action dates. Some immigrant applicants scrambling to downgrade from EB-2 to EB-3. Others who attempted to beat the fee increases. All of these reasons and more are good ones for EB-3 or EB-2 applicants who have chosen the EB-5 investment journey to stay the course. For Indian-born EB-5 investors with priority dates that are not close to 2009 or 2010, the EB-5 program is still the faster option.

While withdrawal may seem an attractive option right now, it is important to consider the bigger picture before shifting your path again. It could be years still before you receive an EB-2 or EB-3 green card if that is the route you take. If you still feel a change is your best option, it is always advisable to seek experienced legal counsel to ensure your immigration goals for you and your family are ultimately met.