The EB-5 Immigrant Investor Program may be one of the quickest and simplest pathways to U.S. permanent residency, but that doesn’t mean the process is necessarily quick or simple. Lengthy wait times have long plagued the EB-5 program, particularly for investors from backlogged countries. Excessive EB-5 demand is clearly one contributing factor to long wait times for an EB-5 visa, but it’s far from the only one, and those making an EB-5 investment should bear in mind the multitude of factors at play.
Obtaining conditional permanent resident status through the EB-5 program is a two-stage process: first, investors must file Form I-526, and then, upon I-526 approval, they must apply for the U.S. green card itself. As EB-5 investors from backlogged countries know all too well, simply receiving I-526 approval does not necessarily mark the end of the wait. To balance the excessive demand with the lower supply of EB-5 visas, United States Citizenship and Immigration Services (USCIS) releases monthly Visa Bulletins that limit the number of investors who can claim an EB-5 visa based on their priority date, or the date USCIS received their I-526 petition.
Most foreign nationals with an active EB-5 investment may file for their EB-5 visa immediately upon receiving I-526 approval, but for particularly backlogged countries—as of November 2020, only China—investors must wait even to file their green card application. Investors from countries not marked as “current” in Chart B of the monthly Visa Bulletin must hold off even on submitting their application for U.S. permanent resident status, elongating their wait indefinitely.
However, simply being from a “current” country does not free an EB-5 investor from hurdles and delays in their EB-5 journey. Anyone considering making an EB5 investment must also take into account that factors such as USCIS productivity and manpower or U.S. embassy and consulate closures could delay their journey to an EB-5 visa. Some such obstacles, such as the COVID-19 pandemic, whose subsequent global shutdown has thrown countless EB-5 investors into processing limbo, are unforeseeable. Those subject to a final action date in Chart A of the Visa Bulletin must also understand that this means that their priority date becoming current is not a guarantee of EB-5 visa issuance.
Effects of COVID-19
The COVID-19 pandemic, not USCIS itself, was the primary reason for the astoundingly low number of EB-5 visas issued in FY2020. Catching the whole world by surprise, the virus quickly spread around the globe and temporarily shut down nearly everything in its path, including U.S. consulates and embassies. Unable to proceed with their visa interviews, EB-5 investors from around the world have been left unable to claim their U.S. green cards—but those already living in the United States have escaped this obstacle.
With the ability to bypass the National Visa Center (NVC) and simply submit Form I-485 to adjust their immigration status, domestic investors have been one of the primary beneficiary groups of the COVID-19 pandemic in the EB-5 sphere. Given the consular shutdowns around the world, when final action dates in the Visa Bulletin move forward, they generally benefit only those applying for a U.S. green card by adjusting their status. In normal times, domestic and overseas applications are affected roughly equally, but in the COVID-19 era, the Visa Bulletin suddenly takes on a different significance for these two groups.
Wait Times for Indian Investors
The EB-5 world collectively rejoiced when the Indian final action date finally became “current” in July 2020. True to predictions from the chief of the Visa Control and Reporting Division at the U.S. Department of State, it has also remained current as of November 2020. However, this monumental status change doesn’t necessarily mean the wait times for all Indian EB-5 investors have been reduced. It’s important to consider where in the process the investors are. Whereas many investors from Vietnam, a backlogged country, have received I-526 approval and are awaiting their EB-5 visa, numerous Indian investors are still waiting for their I-526 petitions to be adjudicated. Since the Visa Bulletin does not account for these investors, it was able to leap forward, leaving thousands of Indian EB-5 investors behind. When these individuals from India with EB5 investments are finally approved, the final action date could fall back, and India could once again become a backlogged country.
