On March 31, 2020, United States Citizenship and Immigration Services (USCIS) transitioned from its traditional first-in-first-out (FIFO) I-526 processing approach to a visa availability approach. What does this mean for EB-5 investors? It depends on their country of origin.
How the Visa Availability Approach Works
Under the previous FIFO approach, USCIS assigned I-526 petitions for adjudication based on the date of receipt. Because the unequal distribution of EB-5 demand from different countries allowed backlogs for EB-5 investors from certain countries to quickly build up, USCIS ended each fiscal year with leftover visas that could have been issued to investors from other countries if their I-526 petitions had been processed. With the new visa availability approach, I-526 petitions are assigned for adjudication based on whether there are available EB-5 visas for the investor’s country. The adoption of this processing method should reduce the number of leftover visas at the end of each fiscal year.
Who is Negatively Affected by the Visa Availability Approach?
Because USCIS uses the Chart B dates to assign petitions for adjudication, China is the only country negatively impacted by the visa availability approach. Speculation that the move could also impact Indian and Vietnamese EB-5 investors was cleared up at USCIS’s March 13 public engagement. The speakers at the engagement also revealed their belief that India’s backlog may disappear by summer 2020, further brightening the situation for Indian EB-5 investors.
China has long outpaced all other countries in terms of EB-5 demand. Under the FIFO approach, the majority of I-526 petitions adjudicated belonged to Chinese EB-5 investors, since they dominated the I-526 submissions. However, since only approximately 700 EB-5 visas are available for Chinese investors per year, both the Chinese backlog and the number of leftover visas built up. Under the visa availability approach, after accounting for the 700 or so visas available annually for Chinese investors, USCIS will prioritize I-526 petitions from EB-5 investors of other nationalities.
Who is Positively Affected by the Visa Availability Approach?
EB-5 investors from any country other than China may see positive impacts from the adoption of the visa availability approach. However, EB-5 investors from backlogged countries, like Vietnam, or countries where demand is high, like South Korea, should bear in mind that they could be negatively affected in the future.
Does the Visa Availability Approach Affect Expedite Requests?
One of the only exceptions to the new visa availability rule is expedite requests, which USCIS intends to honor regardless of the visa situation for the EB-5 investor’s country.
How Can Investors Monitor Which Countries Are Affected?
Every month, the U.S. Department of State – Bureau of Consular Affairs releases a Visa Bulletin. It contains two charts relevant to EB-5 investors.
Chart A: Final Action Dates
Chart A reveals when EB-5 investors are eligible to schedule a visa interview and apply for conditional permanent resident status. As of April 2020, investors from three countries—China, India, and Vietnam—face a backlog. Each month, EB-5 investors from these countries must check whether the final action date is on or after their priority date. If it is, they may schedule their visa interview. Investors whose countries have a “current” final action date may schedule their visa interview immediately after I-526 approval.
Chart B: Dates for Filing
Chart B is the chart that USCIS uses in its visa availability approach to determine adjudication assignments. As of April 2020, China is the only country that is not current in this chart, meaning that only Chinese EB-5 investors are affected at present. Chinese investors must check Chart B to see whether the date for filing is on or after their priority date—if it is, they may file their green card application with the National Visa Center.