Lengthy wait times aren’t new to EB-5 Immigrant Investor Program application processing. This is particularly true for investors hailing from countries experiencing backlogs. Still, the EB-5 program remains one of the most straightforward paths to U.S. permanent residency, and excessive demand for the program is one of the major contributing factors to processing delays. It’s not the only factor, though, and every EB5 investment participant should be aware that there are a multitude of elements that can influence just how long they wait on processing.
The Two-Step Process of Obtaining an EB-5 Visa
To obtain conditional permanent resident status through the EB-5 investment program, each eligible investor must complete a two-stage process. In the first stage, an investor files an I-526 petition packet. However, as most investors from countries with extensive backlogs have experienced, I-526 approval isn’t necessarily the end of their wait for conditional permanent resident status. Once the petition is approved, investors begin the application process for their U.S. green card. To provide a balance between low EB-5 visa supply and high demand, United States Citizenship and Immigration Services (USCIS) has devised a system in which they release monthly Visa Bulletins. These bulletins outline the limits on the number of investors who may claim EB-5 visas based on their priority date, or the date by which USCIS received their petition.
The Visa Bulletin and Associated Delays
While most program participants involved in an active EB5 investment are eligible to apply for their EB-5 visa immediately following an approval of their I-526 petition, not every foreign national is. In particularly backlogged countries (only China as of November 2020), investors are required to wait to file a green card application. This is because only investors from countries marked “current” in Chart B of the monthly Visa Bulletin may submit their application for permanent resident status in the United States.
Furthermore, not even a “current” status eliminates every possible delay an EB-5 investor may face on the journey to a life in the United States. EB-5 program hopefuls should also consider factors such as USCIS productivity and manpower, U.S. embassy and consulate goings-on, and other unforeseeable events that may affect processing. The COVID-19 pandemic, for instance, led to a global shutdown that has thrown countless EB-5 investors into processing limbo since the outbreak began. This example also serves as a reminder that even a recent priority date changing to current is no guarantee of the issuance of that EB-5 visa. Let’s take a deeper dive into how an event like this can cause EB-5 wait times to expand.
The Effects of a Global Pandemic on EB-5 Processing
It wasn’t USCIS itself that was responsible for the markedly low issuance of EB-5 visas in 2020 but rather COVID-19. Effectively throwing the entire globe off-balance, this virus spread more rapidly than anyone could have expected, and nearly everything in its path was temporarily shut down, including U.S. consulate and embassy offices around the world. Closed doors meant no visa interviews. No visa interviews meant no U.S. green cards issued. Thousands of EB-5 investment participants were left unable to claim their visas.
The only exception? EB-5 investors already living in the United States. Because they are able to bypass the National Visa Center (NVC) visit and simply complete a petition Form I-485 for an immigration status adjustment, these domestic investors have become the primary beneficiary group of the EB-5 program during the pandemic. When final action dates listed in the monthly Visa Bulletin shifted forward in the wake of the pandemic, it ultimately benefited only those seeking to adjust their status as a means to apply for a U.S. green card—at least temporarily. Normally, all applications—domestic and foreign—are affected relatively equally. However, the COVID-19 era is far from normal.
“Current” Status in India Doesn’t Mean Faster Processing
The EB-5 industry as a whole rejoiced, it seemed, when the final action date for India was finally marked “current” in July 2020, and as predicted by Visa Control and Reporting Division officials, it has remained so as of November 2020. So why, then, might Indian EB-5 investment participants continue waiting? Because of where in the process investors from India are at the given moment. Remember, obtaining an EB-5 visa is a two-step process. While many Vietnamese investors have already gained I-526 approval, they are still dealing with backlogs to receive their visas. At the same time, many Indian investors haven’t yet completed the adjudication process for their I-526 petition packets.
The Visa Bulletin, as a practice, does not consider petitions that have not been approved when calculating status. As a result, the country’s status appeared to take a giant leap forward, but in actuality has systematically left thousands of Indian EB-5 investors behind. As we see more adjudications completed, that final action date will likely fall backward again, and depending on the actual numbers, India may face a backlogged status once again.
