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Understanding the EB-5 Visa Option and Visa Retrogression for Indian Nationals

Indian citizens who want to become U.S. permanent residents, or green card holders, currently face several challenges, including long wait times and changes to visa programs. For example, according to the June 2019 Visa Bulletin, both the EB-2 and EB-3 cut off dates for Indian applicants fall in 2009. Although the H-1B visa program has historically been a popular choice, recent changes to immigration laws and policies, such as stricter scrutiny of H-1B visa applications, has led to a decline in demand.

The EB-5 program offers an alternative path to permanent residency for Indian nationals. Although the program has become more popular with Indian investors in recent years, which has also led to delays and backlogs, wait times for EB-5 visas are still shorter than for other types of immigrant visas.

To make an informed decision about the visa options available, learn about the basics of the EB-5 visa and the mechanics and implications of visa retrogression for Indian nationals.

What is the EB-5 program?

The EB-5 Immigrant Investor Program was established by Congress in 1990 as an economic stimulus based on job creation and foreign investment. Under the program, a foreign entrepreneur becomes eligible for a green card if the person invests the prescribed amount in a U.S. commercial enterprise and if the investment leads to the creation of 10 full-time, permanent jobs for U.S. workers.

To qualify for the minimum investment amount (currently $900,000), the investor must invest in a project that falls within a rural or high unemployment targeted employment area (TEA). For projects outside these areas, the required investment amount is $1.8 million.

Investors can meet these requirements through direct or regional center investments. Investing in a regional center project is a popular choice, as these often qualify for the minimum investment amount and require limited managerial input, which simplifies the immigration process.

To begin the EB-5 visa process, the applicant must file Form I-526 with United States Citizenship and Immigration Services (USCIS).

What are the causes of visa backlogs?

The simple answer is that demand exceeds supply—the number of applications USCIS has received exceeds the number of visas available. The overall limit for the number of EB-5 visas is 10,000 per year. A per-country limit of 700 typically applies, although the visas left over, or those that have not been taken up by countries for which demand is low, are assigned to countries with higher demand at the end of each fiscal year. The fiscal year runs from October 1 to September 30.

When the number of applications exceeds the number of visas available, the government sets a cut-off date, a process known as visa retrogression. This cut-off date is published monthly by the Department of State in the Visa Bulletin.

Upon filing Form I-526, the applicant receives a priority date. To move forward with the application, this priority date must fall before the cut-off date, if one has been set. Therefore, applicants with priority dates that fall before the cut-off date can apply for green cards, but those whose priority dates fall after the cut-off date must wait until their cut-off dates become current. Priority dates related to approved immigrant petitions can be retained, provided applicants are not guilty of fraud or misrepresentation. However, each priority date can be used only once, and priority dates cannot be transferred.

Cut-off dates change as demand fluctuates, so it is important to monitor the monthly Visa Bulletin.

Does the country restriction apply to country of birth or country of residence?

EB-5 visas are allocated according to country of birth, so Indian nationals living abroad will still be subject to the country limit imposed for India. However, those whose spouses were born in countries with lower demand can use their spouses’ countries of birth to avoid the visa backlog. Unfortunately, this does not apply to petitioners’ children, so even if the children were born outside India, the whole family will remain subject to the backlog experienced by Indian nationals.

When are applicants no longer subject to visa backlogs?

Visa backlogs do not affect those who hold conditional permanent residency before the cut-off date is set. It affects applicants in all other stages of the EB-5 visa process.

If an applicant’s I-526 petition has been approved and the adjustment of status application was filed before the backlog and remains pending, it is possible to apply for an employment authorization document (EAD) and advance parole (AP) as part of the adjustment application. This will allow the applicant to work in the United States and travel internationally.

Applicants must consult immigration counsel to determine whether securing an EAD and AP is the best option for them. Moreover, they must not work without authorization or travel without securing AP. Even if they apply for an EAD and AP, they will still have to wait until their priority dates are current before USCIS will adjudicate their adjustment applications.

Can applicants submit conditional green card, EAD, or AP applications if their priority dates fall after the cut-off date?

The monthly Visa Bulletin contains two charts showing important dates for visa applicants: Chart A and Chart B. Chart A shows the final action dates, or cut-off dates, and visas are available for those with priority dates that fall before the dates listed in Chart A (“C” means “current”). Chart B shows when applicants may file their green card applications. In other words, those with priority dates that fall before the dates listed in Chart B can file their adjustment of status applications.

Filing applications from outside the United States

Consulates and the National Visa Center always allow applicants to use Chart B, so EB-5 investors who opt for consular processing after the approval of their I-526 petitions can begin their immigrant visa applications once their priority date is current on Chart B. However, they will not receive their visas—or be scheduled for interviews—until their priority dates become current under Chart A.

Filing a petition based on the date in Chart B might speed the application process once visas become available according to the date in Chart A. But there is a risk that months might pass before the date in Chart A becomes current, and applicants might need to update some of their supporting documents. Additionally, filing an application based on the date listed in Chart B does not protect against children aging out of the program.

Filing applications from within the United States

Those who are applying from within the United States must file their petitions with USCIS, which decides on a month-by-month basis whether applicants are permitted to use the dates listed in Chart A or B. Thus, applicants who are currently in the United States can file their adjustments, EAD, and AP applications according to the dates listed in Chart B only if their priority dates are current on Chart B and USCIS is allowing applicants to use Chart B that month. The rest of the time, they must wait until their priority dates become current on Chart A.

The benefits of filing an application in line with the date listed on Chart B include being able to file EAD and AP applications, which allows applicants to work in the United States and travel internationally. Applicants can renew their EAD and AP until their conditional permanent resident status is approved.

Historically, USCIS has allowed the use of Chart B toward the beginning of the fiscal year. There is no guarantee that USCIS will allow this at any point, and it is impossible to say when this will occur again. Applicants should check the USCIS website for information on this within a week of publication of the monthly Visa Bulletin.

What are the benefits for Indian nationals of applying for an EB-5 visa now?

Even if there is a backlog in EB-5 applications for Indian nationals, applying for an EB-5 visa now holds several benefits. First, the current wait time is not as long as the wait times for other visa categories. This will change as the program becomes more popular with Indian investors. The more people apply, the longer the potential wait times.

Second, applicants in the United States may be able to apply for EADs and AP when they submit their adjustment of status applications. Therefore, they will be able to work and travel while waiting for the adjudication of their conditional permanent residency applications without facing the restrictions imposed by other visa categories. For example, applicants would not need to find petitioning employers or face the uncertainty of the lottery system, as is the case with H-1B visas.

EB5 Affiliate Network has a team of experts waiting to help. Contact us today to learn whether the EB-5 program suits your needs.