Cutoff Dates Return for Chinese Direct Investors in June 2022 Visa Bulletin; Reserved Visa Categories Create New Opportunities to Avoid Delays

Even though Chinese direct investors are again subject to cutoff dates, the new reserved visa categories enable them to avoid the ensuing delays and obtain an EB-5 visa with priority processing.

Members of the EB5 investment industry, especially investors with pending visa applications, are typically eager to stay informed with the monthly Visa Bulletin published by the U.S. Department of State (DOS). This publication dispenses valuable updates on the required wait times and processing volumes for visa applicants, including those in the EB-5 Immigrant Investor Program. The June 2022 Visa Bulletin sounds the warning of an increasing backlog for Chinese EB-5 investors, but at the same time, the newly-enacted provisions of the EB-5 Reform and Integrity Act of 2022 open up unprecedented opportunities for applicants from China and other high-demand countries.

Before examining the contents of the June 2022 Visa Bulletin, we first provide some general background on visa allocation in the EB-5 program.

How Visas Are Allocated to EB-5 Investors

An EB-5 visa applicant must submit Form I-526, Immigrant Petition by Alien Investor, to USCIS after investing in a qualifying U.S. business. Investors are then assigned a priority date—that is, the date on which they submitted the petition. Once Form I-526 is approved, USCIS grants the applicant a two-year conditional visa. The investor will eventually be able to remove the conditions on this visa and become a permanent resident through Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status.

EB-5 investors have the option of either investing directly in a business or doing so through a regional center. Regional centers are USCIS-authorized entities that manage EB-5 investment funding across various offerings.

Regardless of how many foreign nationals apply for an EB-5 visa, the DOS designates a limited number of visas for the EB-5 program each fiscal year. Of the total yearly number of EB-5 visas, each nationality participating in the program is allotted a maximum of 7%. For instance, if the total number of EB-5 visas one fiscal year is 10,000, investors from Germany will be allowed to receive a maximum of 700 visas. If there are more than 700 German investors applying that year, some of them will be unable to receive visas.

The 7% annual visa limit for each nationality poses an obstacle for investors from countries with high demand. China, for example, has experienced a considerable EB-5 visa backlog for several years. Chinese-born investors may have to wait for a decade, or even more, to be granted their visas.

The DOS has taken the additional measure of delaying the visa process for Chinese investors by imposing two cutoff dates: a final action date, which restricts when investors can receive their visas, and a date for filing, which restricts when investors can apply to the National Visa Center.

Chinese investors can only move forward in the visa process if their I-526 priority dates match or are earlier than the applicable cutoff dates. For instance, Chinese investors are currently assigned a final action date of November 22, 2015. Any investors who filed their I-526 petitions after that date cannot receive their EB-5 visas.

Examining the June 2022 Visa Bulletin: Reauthorization of Regional Center Investment Exacerbates Chinese Backlog

The June 2022 Visa Bulletin dispenses sobering news for Chinese investors. All EB-5 applicants born in mainland China are now subject to cutoff dates, regardless of whether they invested directly or through a regional center.

The DOS had previously lifted the cutoff dates for Chinese direct investors in the December 2021 Visa Bulletin. However, since the processing of pending regional center I-526 petitions was resumed in March 2022, the ensuing backlog propelled the DOS to reestablish cutoff dates for direct investors.

Chinese EB-5 applicants—regardless of their investment type—are subject to a final action date of November 22, 2015.

The date for filing is December 22, 2015.

Timely Provisions for Chinese Investors in the EB-5 Reform and Integrity Act of 2022

Reserved Visa Pools

Notwithstanding the return of cutoff dates for Chinese direct investors, the EB-5 Reform and Integrity Act of 2022, a recent bill enacted in March 2022, offers all visa applicants the chance to receive a visa without demand-related delays. The Reform and Integrity Act created three categories of reserved visas: rural targeted employment areas (TEAS), high-unemployment TEAs, and public infrastructure projects.

EB-5 applicants who invest in a public infrastructure project or in a business located in a TEA will be eligible for a visa upon approval of Form I-526—even if their nationality has exceeded its yearly visa allotment. These categories have already been included on the Visa Bulletins since the May 2022 installment as “5th Set Aside: Rural”, “5th Set Aside: High Unemployment”, and “5th Set Aside: Infrastructure”.

Concurrent Filing Is Now Possible for Chinese Investors

The Reform and Integrity Act also allows EB-5 investors already living in the United States under a non-resident visa to adjust their immigration status immediately by filing Form I-526 simultaneously with Form I-485. This new arrangement allows EB-5 applicants to live, work, and study in the United States freely until their EB-5 visas are granted.

Even though investors from countries assigned cutoff dates, including China, are not usually allowed to file the I-526 and I-485 petitions concurrently, USCIS does allow investors in the reserved visa categories to do so regardless of their nationality. Consequently, Chinese EB-5 investors already living in the United States can also benefit from concurrent filing as long as they choose a TEA or public infrastructure project.

This arrangement may be especially valuable for investors whose non-resident visas are nearing expiration or who want more freedom regarding their work and study permits.

The Reform and Integrity Act of 2022 Ushers in A Favorable Period for the EB-5 Program

The many useful provisions established by the Reform and Integrity Act make the EB-5 investment process safer and fairer for investors from high-demand countries, especially China. What is more, industry leaders are currently focusing their efforts on getting regional centers reauthorized under the new rules. When USCIS allows regional centers to renew operations, many more investors will be able to file new I-526 petitions in the reserved visa categories.

Investors from China and other nationalities interested in starting the EB-5 investment process can contact EB5AN, a leading project manager and consultancy with an I-526 approval rate of 100%.