Set-Aside EB-5 Visas Remain Available for China and India in the January 2023 Visa Bulletin

Foreign nationals who participate in the EB-5 visa program are often looking forward to immigrating to the United States as Green Card holders. Permanent resident status grants foreign nationals permission to live, work, and study anywhere in the United States, and it also opens up a wealth of career and academic opportunities.

However, one major obstacle many EB-5 investors face is extended processing delays before obtaining a Green Card.

EB-5 investors from countries with a high demand for the EB-5 visa have historically experienced long wait times, which can be inconvenient and force investors to alter or delay their professional and personal goals. This is currently the case for EB-5 visa applicants from China and India.

The EB-5 Reform and Integrity Act (RIA) of 2022 now offers EB-5 investors from high-demand countries a new path to a Green Card: three new categories of set-aside visas. Through a set-aside visa, Chinese and Indian applicants can immigrate to the United States years sooner than previously possible.

The Department of State (DOS) indicates in the January 2023 Visa Bulletin that all three set-aside visa categories are still available for investors from China and India. Foreign nationals from these two countries who would like to immigrate to the United States now have a rare—and likely temporary—opportunity to obtain a Green Card without demand-related delays.

Why are EB-5 Investors Assigned Cutoff Dates?

The DOS makes available a limited number of EB-5 visas for each participating nationality—approximately 10,000 each fiscal year. This means that, while most countries produce a low volume of EB-5 visa applications, investors from high-demand nationalities may experience visa availability constraints.

When the number of EB-5 visa applications from a country exceeds its visa supply, the DOS considers that the country is in visa retrogression. It then assigns cutoff dates that restrict when investors of this nationality can apply for and receive their Green Cards based on the date on which they file Form I-526E. If the date on which an investor filed Form I-526E falls on or after the applicable cutoff date, they will not be able to apply for or receive a Green Card.

The two types of cutoff dates published in the monthly Visa Bulletins are final actions dates and dates for filing. While final action dates determine whether investors can receive their Green Cards, cutoff dates restrict when they can apply for Green Cards after receiving approval for Form I-526E.

As a result of these delays, investors from retrogressed countries often have to wait for several years more than other applicants to receive their Green Cards and immigrate to the United States. While China and India are currently the only two countries in retrogression, other nationalities may become oversubscribed as well in the coming months.

The Set-Aside Visa Categories

Under the RIA, EB-5 investors can now be eligible for a set-aside visa by investing in one of three project types: high-unemployment targeted employment areas (TEAs), rural TEAs, and infrastructure projects. Of course, since there is a limited number of set-aside visas, investors will only be eligible for this provision until the supply is exhausted.

Essentially, a new, faster waiting line for EB-5 investors is now open: regardless of whether their nationality is oversubscribed, EB-5 investors who qualify for a set-aside visa will not be subject to cutoff dates. This allows investors from China and India to obtain a Green Card without availability-related delays.

This benefit also extends to Chinese and Indian nationals who hold non-immigrant visas; they will now be able to adjust their immigration status immediately after making an EB-5 investment and filing Form I-526E along with Form I-485.

Cutoff Dates in the January 2022 Visa Bulletin

For January 2022, the final action date for Chinese investors is March 22, 2015, and the cutoff date is January 1, 2016. Indian investors are subject to a final action date of November 8, 2019, and their cutoff date is December 8, 2019.

While these dates have not moved forward in several months, all of the set-aside visa categories are still current for all nationalities.

How to Begin the EB-5 Immigration Process

While investing in a TEA project qualifies investors for set-aside visas, there are several other factors to consider when selecting an EB-5 investment opportunity. A project’s compliance with USCIS standards, job creation requirement, and the at-risk status of funds ultimately determines whether an investor will immigrate successfully and receive a permanent Green Card.

EB5AN is pleased to offer low-risk TEA projects, in both rural and high-unemployment TEAs, that offer I-526E approval guaranties, ample job creation potential, priority processing of Form I-526E, and other benefits for investors.

For more information on navigating the EB-5 immigration process and getting started, we invite you to schedule a free consultation with EB5AN.