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The EB-5 investment industry experienced several significant changes during 2021, which impacted investors and business owners alike. The December 2021 Visa Bulletin brought good news at the close of the year, as all direct EB-5 investors were granted current status. The Department of State (DOS) removed the cutoff dates for all petitions related to direct EB-5 investments, meaning investors can apply for or receive conditional residency visas as soon as their petitions are approved. Previously, investors from oversubscribed countries such as China had to wait for their priority date to become valid before moving forwards in the process. For Chinese investors in particular, this was a positive change, as their applications have experienced backlogs for around six years.
With the frequent changes that have been occurring in the industry of late, EB-5 experts were watching with interest for further adjustments that might be made at the start of 2022. The February 2022 Visa Bulletin paints a reassuringly stable picture, as all direct investors continue to benefit from current status. As a result, there is likely to be an increased interest in direct EB-5 investment over the coming weeks.
As of January 2022, the regional center program remains closed, meaning that all foreign nationals interested in pursuing an EB-5 investment visa must make a direct investment. While there is a possibility of the regional centers being revalidated as soon as February 2022, industry analysts are increasingly uncertain of when, or if, revalidation will take place.
Final Action Dates for Employment-Based Preference Cases: Chart A
In each Visa Bulletin, Chart A shows the final action dates for each class of employment-based conditional residency visas. Final action dates apply to backlogged countries, and indicate a cutoff of when investors in each class will be able to receive their visas.
Direct EB-5 investment visa petitions, noted in the table as “5th Non-Regional Center”, are marked “C”, or current, for all nationalities. This means that foreign nationals who have made a direct EB5 investment can move forwards as soon as they have received Form I-526 approval from United States Citizenship and Immigration Services (USCIS).
The row related to regional centers, on the other hand, is marked “U”, or unauthorized, for all nationalities. Since the closure of the regional center model in June 2021, USCIS is not processing new or pending I-526 petitions related to regional center EB-5 investments. As a result of these events, many foreign nationals may be wary of the instability of regional centers, even if the program were to be reauthorized.
Dates for Filing of Employment-Based Visa Applications: Chart B
Chart B in each Visa Bulletin lists dates for filing, which indicate when EB-5 investors of each nationality can apply for their visas. As with final action dates, investors from oversubscribed countries have been subject to a date for filing for a number of years.
From the February 2022 bulletin, it is clear that direct EB-5 investors of all nationalities have current status, meaning they are not subject to a date for filing. As soon as they have the qualifying documents from USCIS, these investors can apply for their visas. Chinese investors in regional center projects, however, are still subject to restrictions. Their date for filing is December 15, 2015.
It is possible that the expiration of the regional center model has freed up more USCIS and DOS resources to increase processing capacity for direct EB-5 investment petitions. The direct EB-5 investment model is likely to increase in popularity during 2022.
