Understanding the EB-5 Visa Bulletin

Due to the constantly changing EB-5 landscape, the monthly Visa Bulletins (published by the U.S. Department of State – Bureau of Consular Affairs) is a document of varying importance among investors.

As of August 14, 2020, for instance, the Visa Bulletin applies to those investing in the EB-5 program from China and Vietnam. These EB-5 investors should pay very close attention to this publication.

At the same time, South Korea, Taiwan, and Brazil are considered up-and-coming EB-5 countries, and investors from these areas of the world are advised to watch for changes – namely, in case backlogs begin to build up in their countries.

Charts A and B in the EB-5 Visa Bulletin

Each Visa Bulletin Includes two EB-5 investor charts: Chart A and Chart B. Each chart contains a couple of rows specific to the EB-5 program. These rows indicate the distinction between direct investors and regional centers.

Note that it is rare that the dates for these rows ever actually diverge. Also note that the countries included in the Visa Bulletin are limited because only a select few countries are affected by visa backlogs at a given time.

When you see a “C” in both charts, it indicates a country that has no EB-5 backlog. It is considered “current.” Investors from these countries are free to move forward in the EB-5 process.

On the other hand, investors from countries that are not considered “current” are required to consult their priority date to figure out whether they may proceed.

The priority date is what every EB-5 investor receives when United States Citizenship and Immigration Services (UCSIS) issues a notice of receipt for their I-526 petition.

When the final action date for an investor’s country is later than their priority date, they are allowed to move forward.

So, what is a final action date?

Final Action Dates in the EB-5 Visa Bulletin’s Chart A

The Visa Bulletin’s Chart A reflects final action dates for EB-5 investors—but not all of them. The dates only apply to EB-5 investors who have previously received approval for their I-526 petitions and have gone on to apply for an EB-5 visa.

Factor in the limited number of visas allocated each fiscal year to the EB-5 program, and it is easy to understand how countries with high EB-5 demand can rapidly become backlogged.

In this scenario, only investors with current final action dates are issued an EB-5 visa. The rest must wait.

History shows that only China, India, and Vietnam have ever been affected by backlogs on final action dates. India’s final action date finally became current in July 2020, following a prediction of such from USCIS.

That said, the reality is that EB-5 processing is nonlinear and often messy. In turn, we could see a drastic retrogression for future Indian investors.

Date for Filing in the EB-5 Visa Bulletin’s Chart B

For countries experiencing a particularly heavy backlog, Chart B shows the dates for filing. In an effort to avoid overwhelming the system, USCIS requests that certain EB-5 investors hold onto their applications until a certain date. That date is known as the “date for filing.”

Currently, only Chinese EB-5 investors are being asked to wait to file their application.

The Complications of COVID-19

The COVID-19 pandemic has resulted in the temporary shutdown of all U.S. embassies and consulates. Because the pandemic still has yet to abate in a number of areas in the United States, the U.S. consular immigration services have, in turn, held off on resuming.

As a result, overseas EB-5 investors have simply not been able to apply for their visas.

Those living in the U.S. under other various visas are, however, able to file an I-485 petition to adjust their immigration status and receive an EB-5 visa.

For now, this process winds up forcing final action dates for EB-5 processing to jump ahead, ultimately accommodating a small number of domestic EB-5 investors.

When the consulates do reopen, the sudden influx of eligible investors claiming their EB-5 visas may lead to major retrogressions.