August 2022 Visa Bulletin: Set-Aside EB-5 Visas Are Still Available

The EB-5 industry has undergone several significant changes in the wake of the EB-5 Reform and Integrity Act of 2022, a pivotal reform bill that was signed into law in March 2022 as part of the Consolidated Appropriations Act. The Reform and Integrity Act introduced much-needed integrity and transparency requirements for EB-5 projects and regional centers. At the same time, the new arrangement for set-aside visa categories enables EB-5 investors from certain nationalities to immigrate to the United States years earlier than previously.

The Reform and Integrity Act also “grandfathered in” regional center investors until September 30, 2026, ensuring that investors who submit their I-526E visa petitions until that date will have their petitions processed. In this way, the Reform and Integrity Act avoids further adjudication delays for regional center investors, whose visa applications were not processed by USCIS from June 2021 until March 2022.

At the same time, USCIS did not immediately allow regional centers to accept new EB-5 investors and I-526E petition filings; rather, the agency adopted a restrictive interpretation of the Reform and Integrity Act, arguing that all existing regional centers would have to go through a potentially lengthy recertification process before resuming operations. Another months-long delay for regional center projects would have been counterproductive for the many commercial enterprises across the United States interesting in regional center-sponsored EB-5 funding.

The EB-5 industry experienced a fortunate turn of events on June 24, 2022: a federal district court ruled in favor of a regional center plaintiff in a lawsuit against USCIS and dictated that existing regional centers could immediately resume operations. The pent-up demand for EB-5 regional center projects will result in several new offerings and a renewed interest in what has proven to be the EB-5 industry’s most popular investment vehicle.

In the context of a very eventful period for the EB-5 investment program, the Visa Bulletin for August 2022 dispenses positive news for new EB-5 investors, especially those of nationalities with a high demand for EB-5 immigration.

The Set-Aside Visa Categories Remain “Current” in the August 2022 Visa Bulletin

Each year, 32% of the total supply of EB-5 visas is now set aside for investors in projects located in targeted employment areas (TEAs) and for investors in public infrastructure projects. Rural and high-unemployment TEA investors receive 20% and 10% of the EB-5 visa supply, respectively, while investors in infrastructure projects receive only 2%. In addition, investors with a set-aside visa in the rural TEA category are entitled to priority processing of Form I-526E.

Gaining a set-aside EB-5 visa will benefit investors from countries experiencing visa retrogression—that is, countries whose number of EB-5 visa applicants exceeds their yearly supply of EB-5 visas. Because investors from each participating nationality in the EB-5 program can receive a maximum of 7% of the total yearly supply of EB-5 visas, some countries have built up extensive backlogs of EB-5 visa applications. In some cases, the Department of State (DOS) assigns cutoff dates to investors from high-demand nationalities.

The two types of cutoff dates—final action dates and dates for filing—restrict when investors can apply for and receive their EB-5 visas. In many cases, investors who are subject to cutoff dates face years-long delays before they can immigrate to the United States through the EB-5 program.

Investors should keep in mind that there is only a limited number of set-aside visas available. The supply of set-aside EB-5 visas could be taken up relatively quickly following the recent reauthorization of the regional center program.

Fortunately, the August 2022 Visa Bulletin shows that all three set-aside visa categories—”5th Set Aside: (Rural – 20%)”, “5th Set Aside: (High Unemployment – 10%)”, and “5th Set Aside: (Infrastructure – 2%)”—remain “Current,” meaning that new investors in regional center TEA projects still qualify. As of August 2022, only Chinese investors are experiencing visa retrogression, but other high-demand nationalities could also develop a visa backlog in the near future.

Cutoff Dates in the August 2022 Visa Bulletin

The final action date for Chinese-born EB-5 investors remains at November 22, 2015. No Chinese investors with I-526E filing dates on or after November 22, 2015, are allowed to receive their EB-5 visas, even if USCIS has approved their I-526E petitions. Similarly, the date for filing for Chinese investors, which restricts when they can apply for an EB-5 visa, is still December 22, 2015.

The cutoff dates have not advanced in many months, making it even more important for new Chinese investors to obtain a set-aside EB-5 visa.

EB5AN is pleased to offer two institutional-quality, low-risk EB-5 projects in the regional center program: Saltaire St. Petersburg and Twin Lakes Georgia. Both projects are in designated TEAs and will qualify their investors for set-aside visas. For more information, schedule a free meeting today.