Set-Aside Visa Categories Remain Available for Indian and Chinese Investors in the December 2022 Visa Bulletin

One of the most beneficial new features introduced by the EB-5 Reform and Integrity Act of 2022 is the arrangement for set-aside visas. While EB-5 investors from countries with a high demand for EB-5 immigration have historically been subject to additional wait times for their Green Cards—sometimes experiencing years-long delays—the new categories of set-aside visas will allow investors of these nationalities to avoid additional delays caused by the limited supply of visas.

In this article, we analyze the current immigration situation for EB-5 investors from India and China and explain how a set-aside visa can be particularly beneficial for investors from these two countries.

Cutoff Dates in the December 2022 Visa Bulletin

The Department of State (DOS) allows each participating country in the EB-5 program to receive a maximum of 7% of the total number of available EB-5 visas for any given fiscal year. This policy does not affect the visa processing time for investors from most countries, which do not have a particularly high demand for EB-5 visas.

Rather, the bulk of the demand for EB-5 immigration comes from a small number of countries. When the number of EB-5 visa applications from one of these countries exceeds the nationality’s number of available visas, the country is experiencing visa retrogression.

In this situation, the DOS delays when EB-5 investors can apply for and receive their initial Green Cards after approval of Form I-526E, the initial application in the EB-5 immigration process.

As of the December 2022 Visa Bulletin, both India and China are in visa retrogression.

Chart A

Chart A of each Visa Bulletin indicates the final action date for investors from countries in vis retrogression. This date restricts when investors can apply for their Green Cards after their I-526E petitions are approved. An investor will only be able to apply for a Green Card if the date on which they filed Form I-526E (known as their priority date) is before the final action date.

In the December 2022 Visa Bulletin, the final action date for India is November 8, 2019, and the final action date for China is March 22, 2015. All Chinese and Indian investors who filed Form I-526E before their applicable final action date cannot currently apply for a Green Card.

It is often several months before the DOS moves forward a retrogressed country’s cutoff dates.

Chart B

Chart B contains the date for filing for backlogged countries, indicating when investors can receive their Green Cards. The dates for filing for India and China are December 8, 2019, and January 1, 2016, respectively.

How Indian and Chinese Investors Can Avoid Cutoff Dates

The new set-aside visa categories give investors from backlogged countries an unprecedented opportunity to avoid cutoff dates and obtain their visas.

The Visa Bulletin has added three new set-aside visa categories for investors in high-unemployment targeted employment areas (TEAs), rural TEAs, and infrastructure projects. While infrastructure projects are rare in the EB-5 industry and this category is only given 2% of the total visa pool, rural and high-unemployment TEA projects offer the best way for Indian and Chinese investors to avoid cutoff dates.

However, investors will only have the option of obtaining a set-aside visa as long as the category in which they invested in remains “Current” on the Visa Bulletins. Therefore, Indian and Chinese investors are recommended to begin the EB-5 process as soon as possible to ensure that they will be able to immigrate without additional delays.

Rural TEA projects are a particularly beneficial option because they offer priority processing for Form I-526E. At 20% of the total supply of EB-5 visas, the rural TEA category has by far the amplest supply of set-aside visas available.

Making an EB-5 investment promptly will be especially beneficial for H-1B visa holders or holders of other non-immigrant visas; the Reform and Integrity Act also allows these applicants to adjust their immigration status immediately by Filing Form I-526E and Form I-485 concurrently. This allows applicants to live and work in the United State while their I-526E petitions are processed.

Selecting A Low-Risk EB-5 Project

The most important factors when selecting an EB-5 project are a strong capital structure, ample potential for job creation, and a reliable regional center sponsor. EB5AN is pleased to offer TEA projects that fulfill all three of these criteria and significantly reduce investors’ immigration and financial risk. Our Wohali Utah rural TEA project even allows investors to get started right away and file Form I-526E with a partial investment of less than the full amount of $800,000.

For more information on set-aside visas and how to begin the EB-5 process, schedule a free meeting with EB5AN.