Since the publication of the December 2021 Visa Bulletin, the direct EB-5 investment industry has enjoyed a favorable period. The Department of State (DOS) announced that it would no longer require Chinese investors in direct EB-5 projects to wait for cutoff dates before receiving or applying for their conditional residency visas. As a result, Chinese EB-5 investors can now move on in the EB-5 process unhindered by delays caused by the cutoff dates. The removal of cutoff dates for China is especially significant because investors from that country were subject to a processing backlog for approximately six years.
Fortunately, as of the publication of the February 2022 Visa Bulletin, Chinese investors are still free from processing backlogs. Many more foreign nationals, including several from China, may choose to invest in direct EB-5 projects in the coming weeks. Due to the expiration of the regional center program, all EB-5 investments must be direct for the time being; even though some industry analysts predict that regional center investment could be reauthorized in February 2022, it is unclear exactly when this will take place.
Chart A, “Final Action Dates for Employment-Based Preference Cases”
Chart A of each Visa Bulletin indicates when investors can receive their conditional residency visas. Backlogged countries are subject to a final action date. The “5th Non-Regional Center” row (that is, the row for direct investors) is marked as current for all countries. Therefore, direct investors can receive their visas as soon as these are available and their I-526 petitions have been approved.
In contrast, the “5th Regional Center” row is marked as unauthorized—United States Citizenship and Immigration Services (USCIS) is no longer accepting I-526 petitions from regional center investors or processing any such pending petitions. This development has clearly highlighted the advantages of the direct EB-5 investment model, which does not depend on government reauthorization and will never expire.
Chart B, “Dates for Filing of Employment-Based Visa Applications”
Chart B indicates which nationalities are subject to a date for filing, which restricts when investors can apply for their visas. As in Chart A, no direct investors are currently subject to restrictions, meaning that they can apply for their visas as soon as they are documentarily qualified. Regional center investors from China will continue to be subject to a date for filing of December 15, 2015.
The DOS and USCIS may be taking advantage of the reduced processing load brought about by the suspension of regional center investment to focus on direct EB-5 investment petitions. In all likelihood, the direct EB-5 industry will continue to thrive in the coming months.
