Every month, the U.S. Department of State – Bureau of Consular Affairs publishes a new Visa Bulletin with important information for EB-5 investors. The Visa Bulletins indicate which countries currently have visa backlogs by displaying the final action dates and filing dates for EB-5 investors. Backlogs occur when there are not enough EB-5 visas available for a certain country to fulfill the EB-5 demand from that country. There is a limited number of visas allocated for the EB-5 program in each fiscal year, and each country can only receive about 700 visas per fiscal year, which can result in countries having more investors than available visas. Although not all EB-5 investors are affected, it is important for investors to stay up to date on the monthly Visa Bulletins and understand what information the bulletins contain.
Chart A
The Visa Bulletins include two charts: Chart A and Chart B. Both charts contain separate rows for regional center EB-5 investors and non-regional investors. Although regional center and non-regional investors are separated on the charts, it is very uncommon for the dates to differ. Both charts use “C” to indicate countries that are current and do not have EB-5 visa backlogs.
Chart A shows the final action dates for EB-5 investors. These final action dates apply to EB-5 investors that have already received approval for their I-526 petitions. Investors from countries with current final action dates may be issued their visas, but the other investors must wait.
Investors with a final action date that is not current must refer to their priority date. Investors receive priority dates when United States Citizenship and Immigration Services (USCIS) issues a notice of receipt for their I-526 petition. If the final action date for an investor’s country is after their priority date, they can proceed with their EB-5 process.
Currently, only investors from China, India, and Vietnam have been affected by final action dates, with the Indian final action date finally becoming current in July 2020. However, due to the constant changes of the EB-5 program and the complexities of EB-5 processing, all investors should keep an eye on the Visa Bulletins for updates about their country.
Chart B
Chart B indicates which countries have large visa backlogs and shows the dates for filing for these countries. When countries have an abnormally large visa backlog, USCIS asks investors from those countries to avoid filing their visa applications until a certain date. This helps to avoid having such a large number of applications circulating in the system at one time. As of August 2020, Chinese EB-5 investors are the only ones required to wait to file their visa applications.
Effects of COVID-19
The spread of COVID-19 across the United States and the rest of the world has brought many challenges to the EB-5 program. Due to the pandemic, the United Stated temporarily shut down all U.S. embassies and consulates, making it impossible for foreign-based EB-5 investors to apply for their visas. However, EB-5 investors already living in the United States can still receive their EB-5 visa by filing an I-485 petition. This unique time allows the final action date to become current to prioritize the small number of domestic EB-5 investors.
Due to the influx of eligible EB-5 applicants, overseas investors should expect possible delays and retrogression upon the reopening of U.S. embassies and consulates.
