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Every month, the U.S. Department of State – Bureau of Consular Affairs publishes a new Visa Bulletin with vital information for EB-5 investors. These bulletins show which investors are eligible to apply for visas, which countries currently have a visa backlog, and important dates for investors. While this information is important, it can be difficult for EB-5 investors to interpret the monthly bulletins correctly and understand how the information applies to them.
Example of a Visa Bulletin
Below is an image of Chart A from the June 2020 Visa Bulletin.
Chart A in the monthly Visa Bulletin shows the final actions dates for investors. The bottom two rows are the only rows relevant to EB-5 investors. While the chart differentiates between regional center investors and non-regional investors, it is extremely rare for these two dates to ever differ.
EB-5 investors that filed their I-526 petition before the listed final action date are eligible to proceed with their EB-5 visa. For example, in the June 2020 Visa Bulletin, any Vietnamese investors that filed their I-526 petition before April 22, 2017, are eligible to receive their conditional permanent resident status. Any Vietnamese investors that filed their petition on April 22, 2017, or after, must continue to wait. If a country is current, indicated by a “C,” then all investors from that country are eligible to receive an EB-5 visa.
The final action date is not the only factor that determines whether an investor can move forward with their EB-5 process. An EB-5 investor must have received approval on their I-526 petition and completed the process of applying for an EB-5 visa. Even then, investors must still fulfill all requirements to qualify for an EB-5 visa.
Unfortunately, even when investors meet the necessary requirements and have filed their I-526 petition before the final action date, there can still be delays in the process. One example of this is the temporary closing of all U.S. embassies and consulates due to the COVID-19 pandemic, which makes it impossible for foreign-based EB-5 investors to apply for visas. During the closures, the only EB-5 investors that can move forward with their applications are those already living in the United States. These investors can file an I-485 petition to adjust their immigration status. Since domestic investors are such a small group, the final action dates have moved ahead quickly to prioritize this small number of investors. Once the U.S. consulates reopen, the sudden influx of eligible investors may result in major retrogressions.
The Reality of the EB-5 Process
While the EB-5 process may seem fairly straightforward, it is actually quite complex. The processing of petitions is anything but linear, and investors can encounter various delays for a number of reasons.
The following images illustrate two different scenarios. The first is the typical assumption of how the EB-5 process works.
In this first scenario, each EB-5 investor received a priority number when they filed their I-526 petition. Investors are lined up according to their priority number. The posted final action number is 4, which means that all investors with a priority number before the final action number can receive their visas. In this case, the first three investors get to receive their visas, and investors 4 through 12 must wait for the final action number to increase. Assuming the final action number increases by 3 every month, all 12 investors will receive their visas within four months. Because this is a linear and consistent process, investors can predict their wait time.
However, this scenario does not realistically portray how the EB-5 process actually works. This second image illustrates a more accurate representation of the EB-5 process.
In this second scenario, the investor’s priority number is not the only determinant of when they will receive their visa.
Here, all investors receive a priority number when they file their I-526 petitions but are then divided up into groups based on other factors in their EB-5 process. Some applicants have encountered delays in their adjudication process, and others are unable to submit a visa application yet. Because of this, some applicants with earlier priority numbers can fall behind applicants that have later priority numbers. Investors 10, 6, 3, and 1 are the only investors eligible for a visa.
The final action number in this scenario is set at 10, which allows investors 1, 3, and 6 to claim their visas. Even though investors 2, 4, 5, 7, 8, and 9 have a priority number that is before the final action number, they are ineligible to move forward in the process due to other delays and unmet requirements. If all these investors become eligible for visas in the next month, the final action number will fall back to a lower number, such as 7, to account for the influx of applicants. Therefore, investor 10 cannot predict when their final action number will become current.
This messy, complex process is a realistic example of how the EB-5 process works. Investors cannot ever fully predict when they will receive their EB-5 visas or when they might encounter delays in the process.
A Recent Example of the Convoluted EB-5 Process
In October 2018, the chief of the Immigrant Visa Control & Reporting Division at the U.S. Department of State, Charles Oppenheim, released multiple tables illustrating the inconsistencies among pending EB-5 petitions. These tables show that the process is not sequential at all.
It is important to note the recent moves forward in the final action dates for China, India, and Vietnam from October 2019 to June 2020. India’s final action date has significantly jumped ahead, moving more than two years in just nine months, and it even became current in July 2020. Due to many Indian EB-5 investors now being eligible for visas, major retrogression for Indian EB-5 investors should be expected, although Oppenheim has stated that he does not predict any retrogression for Indian investors in the foreseeable future.
