Certain EB-5 investors need to pay close attention to the monthly Visa Bulletins published by the U.S. Department of State – Bureau of Consular Affairs. They don’t affect all EB-5 investors—in fact, as of June 11, 2020, they only apply to investors from China, India, and Vietnam. However, the EB-5 landscape is constantly changing, and investors from up-and-coming EB-5 countries, such as South Korea, Taiwan, and Brazil, should keep an eye on the bulletins in case backlogs build up for their countries.
The Visa Bulletin contains two charts for EB-5 investors: Chart A and Chart B. Both contain two rows for EB-5 investors, drawing a distinction between regional center and direct investors. Rarely, however, do the dates for the two rows ever diverge. The countries specifically listed in the Visa Bulletin are also limited, as only a small number of countries are affected by visa backlogs.
In both charts, “C” refers to current, indicating countries that do not have an EB-5 backlog. These investors can move forward in the EB-5 process freely, but investors from a country that is not current must refer to their priority date to determine whether they can proceed. All EB-5 investors receive a priority date when United States Citizenship and Immigration Services (UCSIS) issues a notice of receipt for their I-526 petition, and if the final action date for an investor’s country is after their priority date, they may proceed.
Final Action Date
Chart A in the Visa Bulletin shows the final action dates for EB-5 investors. The dates apply to investors who have already received I-526 approval and have applied for an EB-5 visa. Since only a limited number of visas are allocated to the EB-5 program each fiscal year, countries with high EB-5 demand can build up backlogs, with more investors than available visas. Investors with current final action dates may be issued their EB-5 visa, but the rest must wait.
As of June 2020, the only countries that have been historically affected by final action date backlogs are China, India, and Vietnam. USCIS has predicted that the Indian final action date will become current by summer 2020, and the prediction seems to be coming true. However, the messy and nonlinear reality of EB-5 processing could spell drastic retrogression for Indian investors in the future.
Date for Filing
Chart B shows the dates for filing and is reserved for countries with particularly large backlogs. To avoid an overwhelmingly high number of applications in the system, USCIS asks certain investors to refrain from even filing their visa application until a certain date, known as the “date for filing.” As of June 11, 2020, only Chinese EB-5 investors are required to wait to file their visa application.
COVID-19 Complications
The COVID-19 pandemic has ravaged the planet and temporarily shut down all U.S. embassies and consulates. In June 2020, the pandemic has yet to abate in many parts of the United States, and accordingly, U.S. consular immigration services abroad have yet to resume. This makes it impossible for overseas EB-5 investors to apply for their visas, but investors already living in the United States under a different visa are still able to receive their EB-5 visa by filing an I-485 petition to adjust their immigration status.
This unusual EB-5 processing reality forces the final action date to leap forward to accommodate the small number of domestic EB-5 investors. When the consulates reopen and overseas investors are once again able to claim EB-5 visas, the sudden influx of eligible investors is likely to cause major retrogressions.
