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

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Indian citizens who want to become U.S. permanent residents currently face several challenges. For example, according to the January 2023 Visa Bulletin, both the EB-2 and EB-3 cut-off dates for Indian applicants respectively fall in 2011 and 2012. 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, have led to a decline in demand.

The EB-5 Immigrant Investor Program offers an alternative path to permanent residency for Indian nationals. In exchange for investing the necessary capital into a U.S.-based new commercial enterprise and creating new jobs, foreign investors can obtain a Green Card.

The EB-5 investment process offers one of the few direct paths to U.S. permanent residence. Moreover, immediate family members are also eligible for the EB-5 visa alongside the primary foreign investor.

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.

In this article we will provide an overview of the EB-5 program, visa backlogs, and how Indian investors can navigate visa retrogression.

What is the EB-5 Immigrant Investor Program?

Congress created the EB-5 Immigrant Investor Program in 1990 to stimulate the economy through job creation and foreign investment. Under the program, a foreign investor becomes eligible for a Green Card if they invest 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.

The EB-5 immigrant investor visa program and the EB-5 Regional Center Program are overseen by United States Citizenship and Immigration Services.

For many foreign nationals wishing to move to the United States, the immigration process can be time-consuming and tedious. Obtaining a Green Card through the EB-5 program offers many benefits to applicants, including the following.

Lawful U.S. permanent resident status

Naturally, this is the main goal of EB-5 program participants. The EB-5 visa allows the investor, their spouse, and unmarried children under the age of 21 to lawfully live, work, and study in the U.S.

Quicker path to permanent residency and citizenship

The EB-5 investment process can lead to a Green Card faster than many other types of visas. The initial conditions on the visa can be removed in as little as two years, and foreign investors become eligible for United States citizenship five years after receiving conditional permanent residency.

No visa sponsorship requirement

Unlike some other types of visas, EB-5 immigrant investors are not required to be sponsored by an American individual or entity.

EB5 Investment Requirements

Regardless of the investment method an EB-5 investor chooses, the basic requirements remain the same: invest the minimum required capital into a U.S. business and create at least 10 jobs for U.S. workers.

Minimum investment amount

For EB-5 projects located in a targeted employment area, the required minimum investment is $800,000. Projects outside of targeted employment areas (TEAs) require $1,050,000 in investment funds. TEAs are regions deemed in particular need of economic growth and job creation.

Qualifying New Commercial Enterprises

EB-5 investors must invest in a qualifying new commercial enterprise. U.S. Citizenship and Immigration Services defines a new commercial enterprise as “any for-profit activity formed for the ongoing conduct of lawful business.” They can be privately or publicly owned.

Nearly any legitimate business qualifies as an EB-5 business, including real estate development projects, hotel operations, manufacturing, retail, and many other industries.

Job creation

Every EB-5 investment must lead to the creation of at least 10 full-time jobs filled by U.S. workers. Job creation requirements differ depending on the investment model. With direct investment, investors can only count direct jobs towards the employment total, whereas investments made through regional centers can count direct, indirect, and induced jobs.

Capital investment

What are the Causes of EB-5 Visa Backlogs?

The simple answer is that demand exhausts supply—the number of applications U.S. Citizenship and Immigration Services has received exceeds the number of visas available. The overall limit for the number of EB-5 visas is 10,000 per year, and a per-country limit of 700 typically applies. The visas left over by countries for which demand is low are assigned to countries with higher demand at the end of each fiscal year, which 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.

Understanding priority dates

Upon filing Form I-526, (the first application for an EB-5 visa), the applicant receives a priority date. For an investor 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.

If an applicant receives approval for Form I-526, they can then apply for a conditional green Card and relocate to the United States. The conditions on the Green Cards are later removed through Form I-829, which proves compliance with the job creation requirement.

Do country restrictions apply to the 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. This is known as cross-chargeability.

When Are EB-5 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 they have also filed to adjust their immigration status before the backlog, it is possible to apply for an employment authorization document (EAD) and advance parole (AP) as part of the adjustment application.

EB-5 applicants must consult their immigration attorneys 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.

EB-5 visa set-asides

It is possible to bypass the visa backlog by qualifying for a reserved visa. Of the annual EB-5 visa pool, 32% is set aside for projects in targeted employment areas (and infrastructure projects). EB-5 applicants who qualify for reserved visas are guaranteed to obtain one upon approval of Form I-526 regardless of their nation’s EB-5 visa demand and availability.

For EB-5 applicants from high-demand countries, such as Indian investors, a reserved visa can shorten their wait time by several years.

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 upon approval of Form I-526.

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 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. However, there is no guarantee that USCIS will allow this at any point. Applicants should check the USCIS website for information on this within a week of the 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.

In fact, as of March 2022, EB-5 investors living in the United States can file forms I-485 and I-526 concurrently to adjust their immigration status immediately.

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EB-5 Capital Investment for Indian Investors

The EB-5 Immigrant Investor Program offers one of the quickest direct paths to U.S. permanent resident status. Indian nationals often face visa retrogression that can add years to EB-5 wait times. Fortunately, knowledge about how visa backlogs work and retaining an immigration attorney can make the process easier to deal with.

EB-5 Affiliate Network (EB5AN) works with foreign investors from around the world, matching them with ideal investments. Prospective EB-5 applicants with questions about program regulations and navigating visa retrogression can schedule a free call with EB5AN today.