Gaining a set-aside EB-5 visa can help investors from high-demand countries to immigrate to the United States years faster than before.
The Set-Aside Visa Categories
Chart A of the Visa Bulletin
Chart B of the Visa Bulletin
A New Stage in the EB-5 Investment Industry
As the first half of 2022 draws to a close, members of the EB-5 industry will certainly look back upon the past few months as a period of rapid, largely positive changes to the EB-5 Immigrant Investor Program. In March, the signing of an innovative reform bill, the EB-5 Reform and Integrity Act (RIA) of 2022, reauthorized the regional center program and introduced several measures to safeguard EB5 investment funding from fraud or misappropriation. At the same time, regional centers are currently undergoing a complex recertification process that may still take several more months. And the visa backlog for EB-5 applicants born in mainland China remains substantial.
These setbacks notwithstanding, the July 2022 Visa Bulletin dispenses positive news for Chinese applicants and investors in general: all three set-aside visa categories remain current, meaning that new investors who choose TEA projects can still qualify for a reserved visa.
The Set-Aside Visa Categories
Under the RIA, 32% of the EB-5 visas made available each fiscal year are now reserved for investors in TEAs and infrastructure projects; hence the three new categories in the monthly Visa Bulletins: “5th Set Aside: Rural”, “5th Set Aside: High Unemployment”, and “5th Set Aside: Infrastructure”. While the EB-5 industry still needs more guidance as to what kinds of projects could be subsumed under the infrastructure category, TEA projects have long been popular in the EB-5 program.
Investors in TEAs can now avoid delays related to visa availability; even if their country of birth has already exhausted its yearly supply of EB-5 visas, investors in the reserved categories will be able to immigrate to the United States once USCIS approves their I-526 petitions. They will not have to wait for more visas to become available.
Of course, the majority of countries that participate in the EB-5 program have a low demand and are not close to exceeding their yearly allotment of visas. The set-aside categories will only benefit investors from countries whose number of EB-5 applicants exceeds the number of available visas. Nationalities with such a high demand are assigned cutoff dates, which restrict when investors can receive their EB-5 visas. This situation is known as visa retrogression, and China is currently the only country with an unsustainable demand.
As a result, Chinese investors may be able to immigrate to the United States years earlier if they obtain a set-aside visa.
An added benefit of the RIA is the ability to file the I-526 and I-485 petitions concurrently, which allows applicants already living in the United States to live, work, and study in the country even before receiving an EB-5 visa. Investors from countries experiencing visa retrogression are ordinarily barred from concurrent filing, but they will be able to partake in this arrangement if they invest in one of the set-aside categories.
We calculate that, for the 2022 fiscal year, the first 1,325 or so applicants to invest in rural TEA projects and file Form I-526 starting on March 15, 2022, will be eligible for a reserved visa. Approximately 663 and 133 investors will be eligible through the high-unemployment and infrastructure categories, respectively. This limited supply of reserved visas could be depleted relatively quickly, especially once new investors in regional center projects are allowed to file their I-526 petitions.
Chart A of the Visa Bulletin
According to Chart A, the final action date for China remains at November 22, 2015. Investors with Form I-526 priority dates (that is, the date on which they filed the petition) later than November 22, 2015, are not eligible to receive their visas—even if USCIS has already approved their I-526 petitions.
On the other hand, all three set-aside categories are marked as “Current,” meaning that the supply of reserved visas is still available.
Chart B of the Visa Bulletin
The date for filing for Chinese investors remains at December 22, 2015, meaning that Chinese investors with later I-526 priority dates cannot apply for a visa, either through Form I-485 (if they already live in the United States) or through Form DS-260 (if they reside in another country).
A New Stage in the EB-5 Investment Industry
While the EB-5 industry is still very much in flux, the upcoming recertification of regional centers will likely result in a wave of I-526 petition filings and investment funding for U.S. businesses and construction projects.
Foreign nationals interested in an EB-5 visa can either wait until regional centers are reauthorized under the RIA regulations or invest immediately in a direct project. EB5AN offers a free consultation to help connect investors with the best available projects.
