The EB-5 priority date is the date on which an I-526 or I-526E petition is received and filed by United States Citizenship and Immigration Services (USCIS).
Also known as the filing date or receipt date, the priority date is used to determine an applicant’s place in the visa queue after an immigrant investor files their I-526 or I-526E petition. The priority date is particularly important for Chinese and Indian nationals due to visa retrogression.
Investors must understand what the priority date means, as well as how it affects their applications for adjustment of status and their approval for permanent resident status.
What is an I-526 Petition?
Form I-526, or I-526E, is the first immigration petition for foreign investors in the EB-5 program.
The petition must demonstrate the investor has made a qualifying EB-5 investment and that the investor is eligible for conditional permanent residence under the EB-5 Immigrant Investor Program.
Should I File Form I-526 or Form I-526E?
On March 15th, 2022, Congress passed the EB-5 Reform and Integrity Act of 2022.
The bill brings many welcome provisions to the EB-5 Immigrant Investor Program, with the main goals being to restart the EB-5 Regional Center Program and to reduce various processing times across the program.
To reach both of these ends, the EB-5 Reform and Integrity Act divided the former I-526 petition into two new immigration forms:
- Form I-526, Immigrant Petition by a Standalone Investor
- This form is for direct EB-5 investors who invest directly and independently in a qualifying new commercial enterprise (NCE).
- Form I-526E, Immigrant Petition by a Regional Center Investor
- This form is for regional center EB-5 investors, who pool their investment in an NCE with other EB-5 applicants through a USCIS-approved regional center.
Nearly every single EB-5 investor chooses to invest in an NCE through the regional center program and thus will need to file Form I-526E.
The regional center program allows an investor to have much greater flexibility in meeting the EB-5 program’s crucial job creation requirement.
With a vast number of USCIS-approved regional centers covering more than 20 U.S. states and territories, the EB5AN regional center network is one of the most successful and trusted in the industry.
What Are the Requirements for an I-526 Petition?
After selecting a qualifying NCE or job-creating entity (JCE), the investor must make their EB-5 investment and meet USCIS’ criteria for eligibility.
There are three main requirements for an I-526 or I-526E petition:
- Make an Investment
- Sources & Management
- Job Creation
An investor must make a minimum investment of $1,800,000 in an NCE. If the chosen project is located in a targeted employment area (TEA), the required investment amount is only $800,000.
TEAs are geographic areas within the United States that USCIS determines to be either rural or of high unemployment. EB5AN keeps an up-to-date national TEA map.
The investor’s EB-5 capital investment must be lawfully sourced, and the immigrant investor must be involved in the management of the new commercial enterprise.
The investor’s EB-5 capital must be used by the NCE to create at least 10 full-time jobs (35 hours per week).
Direct EB-5 investors can only count direct employees, those employed under a W-2 tax form, towards their job creation requirement.
Regional center investors can count direct employees and indirect jobs created by the project’s construction expenditures. This flexibility makes it much easier for regional center investors to count 10 full-time jobs.
Proving an investor has met all of the above criteria for EB-5 eligibility requires extensive supporting documentation. An immigration attorney usually files Form I-526 or I-526E on behalf of an investor and their family.
What Happens After I-526 or I-526E Approval?
After USCIS approves an investor’s I-526 or I-526E petition, the foreign investor, their spouse, and any unmarried children under the age of 21 will all be approved for two-year Green Cards, granting conditional permanent resident status.
To change their immigration status:
- Applicants residing outside the United States will need to file Form DS-260 in order to enter the country and take up legal residence as conditional permanent residents.
- Applicants already legally residing in the United States on a different visa file Form I-485, Petition for Adjustment of Status, to change their immigration status to conditional permanent resident.
- The EB-5 Reform and Integrity Act now allows for Forms I-526E and I-485 to be filed concurrently. This eliminates an additional waiting period for investors already residing in the United States.
Form I-829, The Final Step
In the last 90 days of this two-year conditional permanent residence, an investor and their family file Form I-829, typically the final form of the EB-5 program.
Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, must demonstrate that the investor’s EB-5 investment has remained “at-risk” for two years and has actually created and sustained at least 10 full-time jobs during that time.
Once an investor’s I-829 petition is approved, an immigrant investor and all eligible family members will receive permanent resident status Green Cards. They may live, work, and study anywhere in the United States.
They will even become eligible for U.S. citizenship, should they choose, beginning five years after their conditional permanent resident status was initially established.
What is a Priority Date For?
The priority date is the date that USCIS receives and files an investor’s I-526 or I-526E petition.
Investors will receive a receipt notice from USCIS in the mail (Form I-797). The investor’s priority date should be included in the receipt notice.
Once an investor’s immigration attorney submits their completed I-526 or I-526E petition to USCIS, along with all supporting documentation, investors can expect to receive their I-797 receipt notice within a few weeks.
All EB-5 applicants need to keep their I-797 filing receipts for their EB-5 submission records.
However, some immigrant investors may need to refer to the date on their filing receipt often if their country is facing a visa backlog, like those from mainland China.
What is Visa Retrogression?
After an investor’s I-526 or I-526E petition is approved, the investor must apply for adjustment of status or consular processing to receive their conditional permanent resident Green Card. However, depending on the investor’s home country, some investors may have to wait to apply.
This is because Congress limits the number of immigrant visas available worldwide each year.
For the EB-5 program, there are usually only about 10,000 total EB-5 visas available each fiscal year, which runs from October 1st to September 31st. Each country is capped at a 7% allowance, meaning only about 700 EB-5 visas are available to any given country in a fiscal year.
Visa retrogression is when the number of applications from a given country exceeds the number of visas actually available.
When visa retrogression happens, the U.S. Department of State sets a cut-off date for the retrogressed country’s applicants based on the order their I-526 submission was received by USCIS. This cut-off date is updated every month in the U.S. State Department’s Visa Bulletin.
Only those whose priority date (from their filing receipt) is earlier than the current cut-off date (from the Visa Bulletin) are eligible to apply for adjustment of status or consular processing and be granted permanent resident status.
How to Understand the Visa Bulletin
Every month, the U.S. Department of State’s Visa Bulletin shows two charts for all employment-based visas: Chart A and Chart B.
Investors can only apply for and obtain their visas if their priority date is listed as current in both charts. In both charts, “C” means “current.”
Foreign nationals from those countries listed in the Visa Bulletin as “C” or “current” may file for adjustment of status or consular processing and receive their Green Cards regardless of the priority date on their filing receipt.
(The charts below are from the February 2023 Visa Bulletin.)
Chart A, “Final Action Dates For Employment-Based Preference Cases”, shows which countries have EB-5 visas available.
After approval for Form I-526/I-526E, immigrants must sit for a consular interview or adjust their status and then receive their Green Card.
Only those immigrant investors who have a priority date on their USCIS filing receipt, which is earlier than their country’s final action date– or cut-off date– may receive a Green Card.
Chart B, “Dates for Filing of Employment-Based Visa Applications,” shows when immigrant investors may file for their visas.
Those investors with a priority date earlier than the date listed for their country in Chart B may apply with Form I-485 or Form DS-260.
If an investor files their I-485 petition based only on the date in Chart B, it may be months or a year before a visa actually becomes available for them in Chart A. During that time, supporting documentation may need to change, or children under the age of 21 may age out of eligibility for the EB-5 program.
What to Do About Visa Retrogression?
As of January 2023, there are only two countries affected by visa retrogression: mainland China and India.
In the February 2023 Visa Bulletin, India’s cut-off date is listed as December 8th, 2019. Mainland China’s cut-off date is listed as January 1st, 2016.
If an investor’s priority date falls after the current cut-off date in the Visa Bulletin, they must wait until their priority date becomes current to file for adjustment of status.
Priority dates cannot be transferred. However, the cut-off date changes frequently as the demand for visas changes. As such, it is important to monitor the Visa Bulletin, which is updated every month.
However, unclaimed EB-5 visas from countries with lower demand get reallocated to retrogressed countries or countries with higher demand. This reallocation happens at the end of every fiscal year.
How Does the Visa Backlog Affect China?
Currently, the demand for EB-5 visas from those immigrant investors born in mainland China is far exceeding the number of EB-5 visas available to Mainland Chinese applicants.
However, EB-5 investors from China shouldn’t give up hope. The passage of the EB-5 Reform and Integrity Act of 2022 proves that the U.S. Congress and President Biden are making progress toward reducing the visa backlog for retrogressed countries and reducing processing times overall for all forms associated with the EB-5 visa program.
Where to Get Started
Many immigrant investors will not need to worry about the priority date listed on their I-797 filing receipt after filing their I-526 or I-526E petition with United States Citizenship and Immigration Services. Most regional center investors will even be able to file for adjustment of status at the same time that they file their I-526E petition.
Only those immigrant investors from countries with a visa backlog will need to wait.
Chinese and Indian nationals will need to pay attention to the State Department’s monthly Visa Bulletin before applying for adjustment of status or receiving permanent residence.
For all EB-5 investors, it is important to have a team of professionals, including an immigration attorney, to help navigate the EB-5 process, especially when it comes to keeping track of the finer details, such as cut-off dates.