When the October 2020 Visa Bulletin came out, the slow advancement of the final action dates for Chinese and Vietnamese EB-5 investors weren’t all that surprising. With the Visa Bulletin having been drafted before FY2020 ended on September 30, 2020, United States Citizenship and Immigration Services (USCIS) had not yet confirmed the huge uptick in available EB-5 visas in FY2021 and thus could not factor them into the final action dates. Indeed, though the COVID-19 pandemic wreaked havoc on the EB-5 program in FY2020, it has also benefited the EB-5 investment immigration program by reallocating all unused family-based visas in FY2020 to the employment-based immigration programs. As the fifth-preference employment-based program, the EB-5 program is entitled to 7.1% of these visas.
However, some EB-5 participants expected the November 2020 Visa Bulletin to be different, with forward momentum in the final action dates to reflect the surge in available EB-5 visas. To their dismay, the November 2020 Visa Bulletin is hardly any different from the October 2020 one.
Furthermore, the Visa Bulletin was released two weeks later than usual, coming out barely before November began. The delay suggests USCIS might have had difficulty compiling this Visa Bulletin, as the unique circumstances created by the COVID-19 calamity present the immigration body with a dilemma. EB-5 investors from around the world have been left unable to secure visa interviews and secure their EB-5 green card due to the closure of U.S. embassies and consulates, but investors already living in the United States, who simply have to file Form I-485 to adjust their immigration status, have been spared. USCIS was left to choose between advancing the final action dates for the domestic investors and potentially incurring visa retrogression in the future or keeping the final action date momentum slow and potentially letting countless EB-5 visas go to waste.
Clearly, USCIS opted to potentially let thousands of EB-5 visas go unclaimed. The final action dates in November 2020 are almost identical to those in October 2020, except that the Vietnamese final action date moved forward by two weeks. Thus, with the new Visa Bulletin, the Chinese final action date is August 15, 2015, and the Vietnamese one is August 15, 2017. To the relief of Indian EB-5 investors, the Indian final action date has remained “current” for the fifth month since becoming current in July 2020, but those with EB-5 investments from India should be wary of potential retrogression in the future.
In Chart B of the Visa Bulletin, Chinese investors remain subject to a date for filing of December 15, 2015. The date for filing has not moved since March 2020, when the COVID-19 pandemic began in the United States. One can only hope that as we progress into FY2021, USCIS will shift the Chinese final action date and date for filing ahead rapidly to take advantage of the thousands of extra EB-5 visas available in the fiscal year.
The news of the November 2020 Visa Bulletin is disappointing, and with the volatile and unpredictable circumstances the pandemic has created around the globe, what the future holds is anyone’s guess. Any sign of the pandemic slowing is likely to be good news for those with EB5 investments because if more U.S. consulates resume visa services, USCIS may elect to move the final action dates forward.