EB-5 Visa Petitions Placed in Priority Tier 4

The EB5 investment industry has undergone several unique challenges during the COVID-19 pandemic, which has placed significant restrictions on immigration and international travel. Naturally, the pandemic-induced constraints have put a strain on visa petition processing, and the adjudication backlog has grown exponentially since early 2020. Logistical issues such as visa consulate lockdowns and the temporary cancellation of in-person interviews have also contributed to this situation.

Moreover, due to the drop in revenue from visa application fees during 2020, United States Citizenship and Immigration Services (USCIS) has experienced financial setbacks. In fact, the agency narrowly averted a massive furlough of approximately 70% of its employees in August 2020. Ur Jaddou, who was appointed as the new director of USCIS on July 30, 2021, has said that she will work on improving the agency’s financial situation and reducing the visa backlog.

To address the backlog, the United States Department of State (DOS) has implemented a new approach toward processing visa applications.

The DOS’s Four-Tier Approach Toward Visa Processing

All immigrant visa applications will now be assigned to one of four priority tiers. The DOS claims that this will help triage the government’s limited adjudication resources. According to the DOS’s website, the four priority levels are the following:

  • Tier One: Immediate relative intercountry adoption visas, age-out cases, certain Special Immigrant Visas, and emergency cases as determined on a case-by-case basis.
  • Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas
  • Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad
  • Tier Four: All other immigrant visas, including employment preference and diversity visas

As evidenced by these priority levels, the U.S. government is placing an increased emphasis on family reunification. As a result, intercountry adoption visas, immediate relative visas, and other family-related petitions are in the first three tiers. Moreover, due to the ongoing pandemic and the threat of the Delta variant, “U.S. embassies and consulates were instructed that they may prioritize as emergencies on a case-by-case basis the immigrant visa cases of certain healthcare professionals who will work at a facility engaged in pandemic response.”

Even though family- and pandemic-related visa applications are now more likely to be processed quickly, employment-based cases are on tier four, the lowest priority level. This includes all visa petitions associated with the EB-5 investment program.

What Does This Mean for EB-5 Investors?

The DOS recognized that “visa applicants, particularly those in Tiers Three and Four, will face continued delays.” Therefore, it seems that the EB-5 petition backlogs are still far from being cleared. Even though this is certainly disappointing for the EB-5 investment industry, the DOS has stated that its consular sections have not yet reached full operating capacity.

In addition to its placement on the government’s lowest priority level, the EB-5 program is also contending with the June 30, 2021, expiration of the regional center program, which had been the most popular EB-5 investment option. Since USCIS announced that it would cease to process all existing I-526 petitions associated with regional centers, thousands of regional center visa applications have now joined the overall EB-5 backlog.

Still, the expiration of the regional center program may ultimately benefit direct EB-5 investors. Direct EB-5 investment is an integral part of the EB-5 industry, so it does not need periodic reauthorization. In addition, now that it is no longer accepting or processing regional-center I-526 petitions, USCIS may now have more adjudicators available to examine direct investment visa petitions.

The landmark court ruling that lowered the minimum EB-5 investment amounts to $500,000 for targeted employment area (TEA) projects and $1,000,000 for non-TEA projects is still in place as of October 5, 2021. Interested foreign nationals should identify suitable EB-5 projects as soon as possible—the opportunity to make an EB5 investment at only $500,000 is likely to be temporary.