Analyzing the September 2021 Visa Bulletin

The renowned EB-5 investment program has undergone significant changes in 2021—this year has been one of the most tumultuous in the industry’s history. For example, the controversial EB-5 Modernization Rule was repealed on June 22, 2021. EB-5 regulations thus returned to their pre-November 2019 status, and the minimum EB-5 investment amounts were lowered significantly. Then, on June 30, the regional center program expired because Congress failed to renew it in time. As of August 2021, regional center investments have not been reauthorized, and it is unclear when such reauthorization could take place. The EB-5 investment industry was rocked by the regional center program’s expiration but received excellent news in the August 2021 Visa Bulletin—the Vietnamese visa backlog had finally been cleared. As a result, Vietnamese investors are no longer subject to a final action date and can receive their EB-5 visas as soon as these are available.

In contrast, the September 2021 Visa Bulletin shows only moderate progress toward clearing the Chinese backlog. Chart A of the Visa Bulletin indicates that the final action date for China advanced by one week to November 22, 2015 (in the previous bulletin, the final action date was November 15, 2015). This may seem like minuscule progress, but any movement in the Chinese final action date is always noteworthy: after all, the Chinese final action date was stagnant for almost a year until the June 2021 bulletin.

As of the September 2021 Visa Bulletin, Chinese investors who filed Form I-526 on or before November 22, 2015, can receive conditional permanent resident status. However, investors who filed their I-526 petitions after the final action date cannot receive their EB-5 visas, even if United States Citizenship and Immigration Services (USCIS) approved their applications.

Chart B shows that China’s date for filing is still December 15, 2015—it has remained the same for more than a year. This lack of progress shows that USCIS’s processing efficiency is still very low. If the Chinese backlog is to be cleared anytime soon, adjudication times for Chinese EB-5 investment petitions need to speed up dramatically.

Still, one aspect of Chart B may be encouraging: the regional center values are not marked as “U” (unauthorized), which may indicate that USCIS is preparing for an eventual reauthorization of the regional center program.

Even though the EB5 investment world can change rapidly and without warning, foreign nationals who want to participate in the program will benefit from working with a knowledgeable immigration attorney and EB-5 specialists such as EB5 Affiliate Network.

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