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How to Calculate the EB-5 Visa Queue

Understanding Employee Qualifications for Direct EB-5 Investments

It’s no secret that EB-5 applicants are subject to long waiting times, especially if they come from a country like China or Vietnam with extensive backlogs due to heightened demand. However, it can be difficult to interpret the backlog and understand the figures involved, especially since I-526 processing is complicated, messy, and nonlinear, which can lead to frustration for EB-5 investors. The key factors are the number of investors in the queue and the pace at which the queue moves forward, but both are complicated and can be difficult to predict.

Each year, roughly 10,000 visas are earmarked for the EB-5 program, which receives approximately 7.1% of all annual EB visas. Of the 10,000 EB-5 visas, each country can receive roughly 700 visas. The numbers are not set in stone and change every year, and it is expected that FY2021 will see increased numbers of visas allocated to the EB-5 program due to unused family visas rolling over. In FY2021, there could be as many as 14,000 visas allocated to the EB-5 program.

One can conceptualize the EB-5 visa queue in numerous ways. It is difficult to calculate because of the many different stages EB-5 investors must go through and the lack of data United States Citizenship and Immigration Services (UCSIS) provides on some of the stages.

Approaches to calculating the EB-5 queue

The first way to look at the EB-5 visa queue is to break it down in terms of USCIS and the Department of State. This is the approach adopted by Visa Control Office Chief Charles Oppenheim, who uses it to calculate the estimated wait times for EB-5 visas, but his is less nuanced: He only counts EB-5 investors with pending I-526 petitions and pending applicants at the National Visa Center (NVC). Since USCIS does not have data on EB-5 investors with I-526 approval who have not yet submitted a visa application nor pending I-485 applications, he omits these populations in his estimates, which may result in inaccurate figures. While the number of I-485 petitions has historically been low, the number of EB-5 investors with I-526 approval who have not yet filed their visa application could be significant, particularly in China.

The second approach to looking at the EB-5 visa queue is to divide it by I-526 approval and visa availability. The number of I-526 petitions pending at USCIS is a readily available statistic, but the addition of a newly added figure—the number of approved EB-5 investors with I-526 approval waiting for visa availability—has made this approach possible. The only factor left is EB-5 investors with I-526 approval waiting for their priority date to become current on the Visa Bulletin, but presently, no such data is available. However, it partially addresses a gap in the first approach: EB-5 investors with I-526 approval who have not yet filed their visa application are a subgroup of those with I-526 approval still waiting for visa availability.

The third method for calculating the EB-5 visa queue is the easiest: It simply subtracts the number of visas issued since a certain date from the number of I-526 petitions filed since the same date. The approach easily avoids the pitfalls of the others, although it provides no information on where investors are in the process.

Breaking Down Data from October 2019 and April 2020

In the below tables, the number of EB-5 applicants from China, India, and Vietnam who have I-526 approval and are waiting for visa availability is displayed. The first is from October 2019, and the second pulls data from April 2020.

Approved EB forms awaiting visa availability, apr. 20,2020

Approved EB forms awaiting visa availability, Nov. 12,2019

EB-5 Visa Figures for China

The data shows a clear decline between October 2019 and April 2020 in the number of Chinese EB-5 investors with I-526 approval awaiting visa availability. In October 2019, a total of 27,251 Chinese investors had approved I-526 petitions and priority dates more recent than November 1, 2014, which was the final action date for Chinese investors in the November 2019 Visa Bulletin. By April 2020, this figure had fallen to 23,511, with the final action date moving forward to May 15, 2015.

Even in April 2020, the number of Chinese investors waiting for visa availability was humongous, and the majority of these investors have been in the backlog for a while: The movement of the final action date from November 2014 to May 2015 only accounted for an extra 3,740 investors. A decrease in this number does not mean thousands of Chinese EB-5 investors received visas—it simply means there are more Chinese investors with visas available.

One also mustn’t forget that many EB-5 applicants apply for visas for their spouse and dependent children as well. Historically, each Chinese EB-5 investor has been granted 2.7 visas, which means 63,889 EB-5 visas need to be available to Chinese investors as of April 2020 to account for all those waiting for their priority dates to become current.

EB-5 Visa Figures for India

The figures for India are significantly lower because China has long maintained the dominant position in the EB-5 program. In October 2019, 189 Indian EB-5 investors had I-526 approval and a priority date more recent than December 8, 2017, and in April 2020, that number had decreased to 51, despite the final action date advancing all the way to January 1, 2019, in a shockingly rapid advancement that eventually led to a “current” final action date in the July 2020 Visa Bulletin.

When immediate family members are considered, India’s 51 EB-5 investors waiting for visa availability grows to an estimated 124 Indian nationals waiting for a U.S. green card. Since the Department of State still has approximately 200 visas to allocate to Indian investors and their families in FY2020, there may be enough visas to completely clear the Indian backlog in FY2020.

EB-5 Visa Figures for Vietnam

While the difference between the October 2019 and April 2020 figures for Vietnamese EB-5 investors is smaller than that for Chinese and Indian investors, there were still fewer Vietnamese EB-5 investors with I-526 approval waiting for their final action date to become current in April 2020 than in October 2019. In October 2019, with a final action date of November 15, 2016, there were 491 Vietnamese investors with I-526 approval waiting for visa availability. By April 2020, this number was down to 443, with the final action date having moved ahead to February 8, 2017.

The small difference between these two figures suggests either a large number of I-526 approvals and a large number of investors reaching the final action date, or a small number of I-526 approvals and a small number of investors reaching the final action date. The figures alone cannot reveal which situation Vietnamese EB-5 investors are in.

Vietnam’s final action date has not moved forward as quickly as India’s likely because there are not enough visas available to account for all Vietnamese EB-5 investors with I-526 approval. When spouses and dependent children are considered, the figure exceeds 800, which is more than the approximately 700 EB-5 visas available for Vietnamese nationals in FY2020.