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The COVID-19 pandemic has created unprecedented circumstances for United States Citizenship and Immigration Services (USCIS), making the monthly Visa Bulletins unpredictable. With the dawn of FY2021 come a slew of extra visas earmarked for the EB-5 Immigrant Investor Program—around 9,000, to be exact. It’s all thanks to the pandemic because, as it turns out, the resulting slowdown in immigration benefits the EB-5 program. While the EB-5 program lost unclaimed visas at the end of FY2020, the loss was offset by the addition of thousands of unused family-based visas that rolled over to the EB programs when FY2020 ended on September 30, 2020. Of these extra 261,500+ visas, 7.1% are allocated to the EB-5 program.
This creates an unprecedented situation for USCIS. Simply moving the final action date forward isn’t necessarily an easy decision: suspended visa services at U.S. consulates and embassies mean overseas investors can’t obtain their EB-5 visas, even if the visas themselves are available. However, foreign nationals who have made EB-5 investments while residing in the United States under a different visa only need to file an I-485 petition to obtain U.S. permanent resident status, meaning they can claim their EB-5 visas regardless of the state of U.S. consulates.
If USCIS moves the final action dates forward, retrogression is almost inevitable in the future when all consulates are open and overseas investors are once again eligible to claim their visas. If it doesn’t move them forward, they may be letting thousands of EB-5 visas go unclaimed, letting the unique opportunity of a doubled EB-5 visa budget go to waste. This dilemma may have been the reason behind the delayed release of the November 2020 Visa Bulletin, which came out just before November, two weeks later than usual.
The November 2020 Visa Bulletin makes UCSIS’s decision clear: keep the momentum slow and risk unclaimed EB-5 visas. The November 2020 Visa Bulletin is hardly any different from the one in October 2020—the only difference is that the Vietnamese final action date has moved ahead by two weeks. For Chinese investors, the final action date is August 15, 2015, and the Vietnamese one is two years later—August 15, 2017. Meanwhile, India has hit its fifth month of being “current,” having achieved the milestone in July 2020. While this is good news for Indians with EB5 investments, the threat of retrogression looms in the air.
Regarding the dates for filing in November 2020, China remains the sole country without “current” status. The November 2020 Visa Bulletin brings no changes to the Chinese date for filing, which sits at December 15, 2015, for the ninth month in a row. Although Chinese EB-5 investors could benefit greatly from the extra supply of visas in FY2021, USCIS’s decision to keep the final action date movement slow keeps these investors in EB-5 limbo.
The November 2020 Visa Bulletin comes as a disappointment to Chinese and Vietnamese EB-5 investment participants, who must now look to the upcoming December 2020 Visa Bulletin for potential good news. While there are no signs to indicate impending rapid movement, 2020 is anything but predictable, so sudden final action date movement forward may be the perfect way to end this unforeseeable year.
