EB-5 investors can experience significant delays in getting their green cards, even after their petition has been approved.
This is because a limited number of visas are issued to each country and some—including India—are over-subscribed.
This has created a visa waiting list for India. And because the country is consistently over-subscribed, the date when Indian petitioners can expect to get their green card keeps getting pushed back.
This process is known as visa retrogression and it can be a stressful problem for EB-5 investors.
This article explains everything Indian EB-5 investors need to know about visa retrogression, including what it is, what the current situation with Indian EB-5 Visas is, and what new investors can do to avoid lengthy delays.
What Is Visa Retrogression?
A certain number of EB-5 immigrant visas are allocated to each country annually. EB-5 Visa retrogression occurs when the number of EB-5 investors is greater than the number of available EB-5 Visas for that year.
When a country reaches its limit of EB-5 Visas, the government looks at the date the last successful applicant filed their application—this is an applicant’s priority date.
This becomes the cut-off date for that country’s EB-5 Visas. People who filed their application after this time will need to wait at least another year.
The more EB-5 applications submitted over a country’s limit, the more the backlog grows and the further the cut-off date is pushed back.
For EB-5 investors, if you submitted your I-526 or I-526E petition before the cut-off date, and you’ve met the program requirements, then you are eligible to file for adjustment of status during the current fiscal year.
But if you submitted your form after that date, then you will need to wait for further visas to become available, even if you have met all the EB-5 Program requirements.
The government regularly publishes a Visa Bulletin that provides cut-off dates for countries that experience visa retrogression.
Below is an example from the September 2023 bulletin. It shows the cut-off dates for several countries that experience high visa retrogression, as well as the cut-off dates for all other nations. “C” stands for current, in other words, there is no backlog.
The chart is ordered by the types of visas. EB-5 petitions are the “5th” preference and are therefore listed in rows 7–10.
What Causes Visa Retrogression?
The total number of visas allocated to the EB-5 Program each year is around 10,000. Each country has its own limit, which usually is around 700 visas.
There are two main causes of the current Indian EB-5 retrogression:
- Large numbers of Indian applicants: In 2022 alone, Indian investors submitted 1,381 applications—which far exceed the country’s limit. 78% of all EB-5 applications since 2015 are from China, India, and Vietnam.
- Increase in the number of visas allocated to reserved categories: The Reform and Integrity Act, which re-authorized the EB-5 Program set aside of 32% of all visas for reserved categories. This means there are fewer visas available for those who applied prior to March 15, 2022.
Latest Updates on Indian EB-5 Visa Demand
The latest cut-off date for Indian EB-5 investors has once again been moved back, this time to April 1, 2017.
The announcement came in the U.S. Department of State’s June 2023 Visa Bulletin.
This kind of visa backlog is known as retrogression and it has been steadily increasing for Indian EB-5 investors in recent years.
In the February 2023 Visa Bulletin, the country’s status for standard EB-5 Visa application waiting times was changed from current, and a cut-off date of November 8, 2019, was set.
The March Visa Bulletin was also notable, as cut-off dates leap back a further 17 months—the largest backlog increase since China first entered EB-5 Visa retrogression in 2015.
The current state of EB-5 Visa retrogression means Indians who invested in the program before March 2022, could experience additional delays of several years before they can remove conditions from their green card and emigrate to the United States.
Implications of the March 2023 Visa Bulletin for Investors from India
For EB-5 investors from India who invested before March 2022, the rapidly increasing changes to cut-off dates may be a shock.
These investors are now subject to an additional 12–24 month delay in their immigration process, perhaps longer.
Unfortunately, nothing can be done to mitigate the extended delays caused by Indian visa retrogression. Those who are waiting for a visa to become available have no choice but to continue waiting.
Children aging out
EB-5 retrogression means that many children will reach their 21st birthday before a visa becomes available.
This is a problem, because once they turn 21 they are no longer eligible for immigration benefits based on their relationship to the EB-5 applicant. This is known as “aging out.”
It is a serious issue for EB-5 investors, as many seek permanent residency status so that their children can attend college in the United States.
It’s worth noting that the Child Status Protect Act freezes your child’s age from the moment your I-526 or I-526e is submitted to the moment it is approved. But it does not cover the period while you are waiting for a visa to become available.
If you have children who are approaching 21 and you want to obtain permanent residency status for them, make sure you file Form I-526 or I-526e as soon as you can and get help from a specialist immigration attorney.
Is EB-5 for India current?
If a nation has no EB-5 backlog, then it is “current.” India is current for reserved EB-5 Visas (more on this later in the article). However, there is a cut-off date of April 1, 2017, for all unreserved visas.
When Will Visa Retrogression End?
Charles Oppenheim, Chief of the Visa Controls Office at the U.S. State Department, has said EB-5 Visas should stay current at 2014 (not including China). This means some Indian applicants may have to wait nearly 10 years for their visa.
Each year, at the end of September, any visas left over from countries with low demand are assigned to countries with higher visa demand. Many other nations are current. This means some of these visas could be used to reduce EB-5 regression for Indian investors.
Many investors caught in the backlog invested prior to March 2022. At this time, reserved visas were not available. Now that they are, it will mean more new investors will be processed quicker.
Let’s take a closer look at what reserved EB-5 Visas are and why they will benefit new investors.
Reserved EB-5 Visas: A Solution for Prospective Investors
Prospective EB-5 investors from India can avoid getting caught in the backlog. They can invest in:
- Rural projects
- Projects in target employment areas (TEAs)
- Infrastructure projects
These kinds of projects qualify for reserved visas and aren’t currently subject to visa regressions—even if their country is experiencing a visa backlog. In fact, these projects are undersubscribed.
Rural projects are arguably the best choice when seeking to avoid visa retrogression because 20% of all EB-5 Visas are reserved for this kind of investment.
In contrast, high-unemployment TEA and infrastructure projects respectively receive only 10% and 2% of the total EB-5 Visa pool.
Investors in rural projects also qualify for priority processing, which means that their immigrant petitions will be processed faster.
This is an especially appealing opportunity for Indian H-1B workers—as these visas allow people to live and work in the United States for a specific period, but not migrate there.
Investing in a TEA project allows people with this kind of visa to adjust their immigration status immediately and continue to live and work in the United States while their EB-5 petitions are adjudicated.
If the reserved visas for the year are not used, then they are rolled over to the next rather than being used for countries in retrogression. This makes it even more likely you won’t face a backlog
High-Quality, Low-Risk Rural Projects from EB5AN
Twin Lakes, Georgia
Twin Lakes Georgia is a single-family home community located near Atlanta, Georgia. Twin Lakes is being developed by the Kolter Group, a highly experienced developer with a proven track record of success.
This compelling rural project has already created enough jobs for EB-5 investors.
✔️Secured EB-5 loan structure
✔️Individual EB-5 investor loan tranches
✔️Rural TEA designation
✔️I-526E rejection refund guarantee
✔️Independent EB-5 oversight
For an investor’s perspective on this project, listen to an interview with Siddharth A., in which he details why he chose to invest in Twin Lakes Georgia.
Wohali, Utah is a golf community development that consists of 428 residences, just north of Park City, Utah.
As of August 2022, the development has already created a third of the job positions required for its investors.
A compelling project in a rural TEA, Wohali offers investors:
✔️Significant job creation.
✔️A low-risk EB-5 loan structure.
Wohali, Utah’s unique features mitigate financial and immigration risks and provide unparalleled safety to its investors.
For more information on the Wohali, Utah project or other rural area projects, please schedule a one-on-one call with EB5AN or send an email to info@EB5AN.com.
Avoid Visa Retrogression with EB5AN
Not knowing exactly how long you’ll have to wait for your visa can be a frightening experience for unreserved visa applicants, especially when you have invested a lot of money into a project.
Luckily, there are several reserved visa projects that you can invest in that make it more likely you’ll get your visa much sooner.
EB5AN owns and operates 10 regional centers across the U.S. and we’ve worked on more than 200 EB-5 transactions.
We can help you complete your EB-5 application and identify a project that will meet program requirements, offer good returns, and help you get your visa when you expect it.
For more information on the best way to obtain a set-aside EB-5 Visa and avoid immigration delays, please schedule a free consultation with EB5AN or email info@EB5AN.com.