When dealing with EB-5 visa wait time predictions, it is important to remember that wait times do not constitute official guarantees, yet it is equally important not to dismiss them entirely. It is impossible to calculate visa wait times with certainty because of the uncertainty of the variables included in the calculation, but rough estimates are useful for identifying problems with visa availability, even if wait times could be shorter or longer.
The most important factor influencing visa wait times is the volume of I-526 petitions: if many people file I-526 petitions, many people will eventually be eligible for visas. This volume of eligible applicants will lead to backlogs and longer wait times due to the visa quota constraint. Furthermore, people who file their petitions at the beginning of a surge in demand will experience shorter wait times than those who file at the end of such a surge.
A Brief Introduction to EB-5 Visas and Wait Times
Only 10,000 EB-5 visas are available each immigration fiscal year that runs from October 1 to September 30. EB-5 visas are assigned not only to investors but also to their family members, also known as dependents, and for each investor typically around two family members apply too. Consequently, roughly 3,300 EB-5 visas are available for investors from around the world each year. Moreover, 7% of the total number of visas available are assigned to each country. In other words, only 700 visas are available for each country. However, whatever unclaimed visas remain are reassigned to countries with higher demand. In recent years, the demand for EB-5 visas has exceeded supply.
According to U.S. Citizenship and Immigration Services (USCIS), for adjustment to legal permanent resident status to occur, “an immigrant visa must be available to the applicant both at the time of filing and at the time of adjudication.” The Visa Bulletin published by the Department of State each month lists the cut-off dates that determine the availability of visas. Applicants with priority dates before the published cut-off date may apply for permanent residence.
A “cut-off date” refers to a date instituted each month for countries where demand significantly outstrips supply to ensure that the 10,000 available visas are distributed fairly. The cut-off date means that only applicants with priority dates that fall before the cut-off listed in the Visa Bulletin are eligible for immigrant visas or green cards that month. The priority date is the date on which an immigrant files their petition with USCIS.
When application volumes exceed visa availability, visa retrogression occurs. This usually happens at the end of the fiscal year as the number of visas issued begin to approach category or country limitations. Therefore, a priority date might meet the cut-off date one month but not the next. Usually, when the new fiscal year begins on October 1 and the new allocation of visas becomes available, the dates return to their pre-retrogression positions, although this is not always the case. Similarly, the cut-off dates listed on the Visa Bulletin usually move forward, but not always, due to fluctuations in visa demand and applications.
Predicting EB-5 Visa Wait Times
When predicting and interpreting EB-5 visa wait times, it is important to understand the five steps in the EB-5 process.
1. File the I-526 petition
The first step is what starts the EB-5 process. When filing the I-526 petition, the investor receives a priority date, but the constraints related to visa quotas for the EB-5 program do not apply yet. In other words, investors can file petitions whatever the current status of visa limits.
2. Await I-526 approval
Although EB-5 investors can file their I-526 petitions at any time, the petitions are processed based on visa availability, with petitions submitted by investors from countries for which visas are available being prioritized. Before March 2020, petitions were processed in the order in which USCIS received them, whatever the petitioners’ nationalities. However, USCIS changed its policy to speed up the processing of petitions for applicants who are unlikely to face subsequent delays due to visa backlogs.
This stage can take several years, and in addition to being influenced by the availability of visas depends on the efficiency with which the USCIS Immigrant Investor Program Office processes I-526 petitions. The USCIS statistics on I-526 petitions relate only to the number of investors and not their family members, so these numbers should be multiplied by estimated number of family members to derive accurate total visa demand numbers.
3. Become documentarily qualified
This step applies only to applicants who will obtain visas through consular processing. Those already in the United States can file a request for adjustment of status immediately once their I-526 petitions have been approved and the required number of visas are available.
Applicants living abroad must become documentarily qualified at the National Visa Center once they have received their I-526 approval. This process can involve delays caused by everything from difficulties in providing the required paperwork to the USCIS failing to forward the I-526 approval notice to the National Visa Center in a timely manner.
4. Wait for visa numbers
Once applicants have received I-526 approval or become documentarily qualified, they—and their qualifying family members—can apply for conditional lawful permanent residency by filing I-485 adjustment of status applications or through consular processing once visa numbers become available.
During this step of the process, applicants are served in order of priority date and nationality, with the monthly Visa Bulletin showing who can proceed to the final step. This step can take less than a year for applicants from countries shown as “current” on the Visa Bulletin, as these countries are not at risk of exceeding the annual 700-visa limit. For applicants from countries with high EB-5 visa demand, this is the main point of delay. Those born in countries where visa demand exceeds supply can wait years to complete the application process, and the larger the excess demand, the longer the wait.
5. Submit I-829 petition after two years
Applicants must submit Form I-829, Petition by Entrepreneur to Remove Conditions within the 90 days before the end of the two-year conditional residency period. For investors who had to wait years to get an EB-5 visa due to being from countries with high EB-5 visa demand, they will also be filing the I-829 petition long after other investors who are not from countries with high EB-5 visa demand.
Points to Remember
While those beginning the first step of the process can see how long other people waited and which priority dates are currently being processed, it is impossible to know what will happen in the future. Considering how many people are beginning the process and how many applications are in the process of being assessed can provide a rough estimate of wait times, but nothing more.
When attempting to gauge wait times, applicants should also consider backlogs related to visa limits. Thus, the first step is to consider the number of people from the same country with earlier priority dates divided by the number of visas available (700). However, factors such as attrition from I-526 petition withdrawals and denials, deaths, and other similar factors and increases due to family members joining the process will cause fluctuations in the estimate.
By Samuel B. Silverman, Managing Partner of EB5AN and Christian Triantaphyllis, Partner at Jackson Walker LLP