The U.S. Department of State – Bureau of Consular Affairs publishes Visa Bulletins on a monthly basis. This report provides a substantial amount of information to EB-5 investors about the complicated EB-5 Immigrant Investor Program. This makes misinterpretation easy and common.
In this comprehensive guide, you can learn how to better understand the Visa Bulletin and to best identify the information most relevant to participants in the EB-5 program.
Final Action Dates in the Visa Bulletin for June 2020
Our guide example examines data from the June 2020 Visa Bulletin. Below, you will find a replica of Chart A Final Action Dates from the June release.
While this table addresses all employment-type visa programs and the associated final action dates for each, only the final two rows apply to investors in the EB-5 program.
Most of the time, the data included in these two line-items is exactly the same because timelines on direct investments and regional center investments are typically identical.
However, on the chance that authorization lapses occur in the regional center program, there are two rows to reflect that.
Note the sections stamped with the letter “C.” This indicates that all investor applicants from the country indicated in the column head have a final action date that is current. In the chart above, for example, you’ll find three countries (China, India, and Vietnam) are experiencing wait times while all other countries are listed as current.
Note the date stamps under the countries with wait times. Investors who file their I-526 petition prior to the date stamped in the chart are eligible to move forward in the EB-5 visa process. The June bulletin shows that India-based investors who filed before January 1, 2020, are eligible to receive conditional permanent resident status now.
Any that filed on January 1, 2020, however, were still required to wait. Since then, a quick review of the same data in the July 2020 bulletin reveals the chart has since been updated to reflect India as current (or “C”) as well.
What “Chart A” in the June Visa Bulletin Doesn’t Reflect
A chart box stamped “C” doesn’t necessarily mean investors who filed their I-526 petitions prior to the final action date are actually able to forge ahead with their EB-5 visas.
Take the recent temporary U.S. consulate closures across the globe in the wake of the COVID-19 pandemic, for instance. When the consulates are closed, EB-5 investors currently overseas are unable to proceed with their visa interviews and move ahead in the application process.
In the meantime, EB-5 investors currently living stateside and have already filed an I-485 petition are the only ones who could only effectively receive their visas in June 2020. Additionally, because domestic investors account for such a small percentage of the program’s investors, their final action dates move ahead much more quickly.
Besides this unforeseen health crisis, a more common delay for those applications who file the required I-526 form prior to the final action date is not meeting other qualifications. To be eligible for an EB-5 visa, there are other requirements investors must fulfill, most notably receiving I-526 approval, which does not happen in a linear fashion.
As a result, the natural assumption, for instance, that the majority of India-based EB-5 investors assigned priority dates prior to 2020 have now received their visas is not necessarily true.
When numerous EB-5 investors previously ineligible to claim their visas suddenly become eligible to do so, the final action date might fall back to account for the sudden influx of eligible investors. When a final action date falls back in the data, it is known as “visa retrogression.”
Another Misinterpretation of the EB-5 Approval Process
For nearly every situation we encounter in which more than one person is seeking the same service – buying groceries, visiting a doctor, waiting to get onto an airplane – we generally stand in a single file line, and we receive service in the order in which we stand.
So, it only makes sense that an EB-5 investor would believe that once they file an initial petition and receive their priority date, they are slated to receive their EB-5 visa before other investors who file their petitions later and receive later priority dates.
Here’s a visual:
In this visual, each of these 12 investors has filed an I-526 petition and has been assigned a priority number (1–2, accordingly).
Let’s also assume in this scenario that the final action number is 4. That would equate to applicants 1–3 receiving their visas first. If final action numbers continue being doled out by three per month, all 12 investors would get visas within four months.
In this hypothetical scenario, investors are able to predict when their visas will be granted based on their priority number.
However, every EB-5 project is different, and this scenario simply doesn’t fit reality. There are countless reasons an investor may fall behind in the system, wrecking the idea of sequential-order processing. The EB-5 program is far more complex than this.
The EB-5 Visa Process Is Non-Sequential
The following visual provides a more accurate illustration of how the EB-5 visa process works. You’ll find here that an investor cannot predict when their visa will be granted based on a priority number alone. Instead, it offers priority placement within each stage of visa processing.
While all investors filing their I-526 petitions during the same period may receive a priority number that appears sequential, applicants may be divided into groups based on a variety of factors.
Common Factors in Nonlinear I-526 Processing
Below are some common factors that can lead to I-526 processing delays:
- Complicated funding sources
- Issues with provided documentation
- Internal requests for evidence (RFEs)
Any one of these issues (and a host of others) can automatically change the overall processing order of EB-5 investors. Any investors eligible to claim a visa are automatically in a more favorable position than any investors ineligible to claim a visa, regardless of their priority number. The final action number only takes into account the investors in this final subgroup, meaning, in this example, that investor 10 may receive their visa before investors 2, 4, 5, 7, 8, and 9. However, if any of these other investors become eligible before investor 10 receives a visa, they will receive their visa first after all.
Common Causes for Post-Approval Visa Delays
Additionally, there are issues that can delay visa receipt even after I-526 approval. The embassy and consulate closures mentioned previously are a great example of how overseas EB-5 investors may face unpredictable delays.
Still others have difficulty securing an interview appointment, and others need help compiling and submitting their visa applications.
How EB-5 Visas Are Actually Granted
The monthly Visa Bulletin only provides information about EB-5 investors in the final subgroup, ready to claim their visas.
Going back to the visual above, here’s how the visas would likely be doled out in the scenario where visas are granted three at a time:
- Applicants 1, 3 and 6 get their visas.
- Applicant 10 is next in line for a visa but cannot receive one yet, since 10 is the cut-off number.
- For this reason, the final action number is 10 (not 4, as it would be in a sequential processing scenario*).
*If the other investors had been eligible to claim in the same month as 1, 3, and 6, then the final action number would have been 4 instead because applicants 1, 2, and 3 would have received their visas and number 4 would be next in line.
While applicant 10 is waiting for next month’s visas, if any investors with a better priority number (all the way up to 9) become eligible, the final action number might fall back to a lower number. When this happens in real life, the final action date moves backward, known as visa retrogression.
This is the messier and more complicated truth about the EB-5 visa process, and it is what makes interpreting the monthly visa bulletin quite difficult. The reality is, that because every applicant’s processing time factors into your own, predicting when your EB-5 visa will be granted is near impossible.
Real World Scenarios on the Non-Linear Nature of EB-5 Processing
According to October 2018 documentation provided by Charles Oppenheim, who oversees the Visa Control and Reporting division of the U.S. Department of State, the non-linear nature of EB-5 processing and the disparities among pending EB-5 petitions are quite clear.
The tables below were included in Oppenheim’s official presentation, and it’s clear that five dozen Chinese investors had I-526 petitions still pending adjudication five and six years post-submission. The numbers continue to grow significantly in subsequent years.
Particularly noteworthy is that India’s final action date has jumped two-plus years ahead in just the last nine months. Due to the groves of Indian EB-5 investors that have fallen behind, this progress makes an extreme case of visa retrogression likely, although it’s impossible to predict the future, and Oppenheim later stated, after the Indian final action date became current, that he does not predict a retrogression in at least the foreseeable future.
