Indian EB-5 Cutoff Date Moves Back 14 Months; Invest in a Rural Project Now to Avoid Immigration Delays

  Author: Samuel B. Silverman

The U.S. Department of State (DOS) has published the Visa Bulletin for June 2023. This monthly publication indicates the cutoff dates for EB-5 investors from countries with a backlog of visa applications. These cutoff dates determine when EB-5 investors from backlogged countries will be eligible to receive their Green Cards.

The June 2023 Visa Bulletin contains bad news for Indian EB-5 investors who submitted their applications before April 2022, when the EB-5 Reform and Integrity Act (the “RIA”) was signed into law. The cutoff date for Indian investors has been moved back by over a year and now stands at April 1, 2017.

In essence, this means that any pre-RIA Indian EB-5 investor who submitted his I-526 application after April 1, 2017, will not be able to receive his Green Card.

There is little that pre-RIA Indian investors can do about this inconvenient development. However, under the RIA, new Indian and Chinese applicants who invest in TEA projects can avoid cutoff dates altogether and immigrate without these additional delays.

The June 2023 Visa Bulletin

The final action date for Chinese investors remains the same as last month’s Visa Bulletin: September 8, 2015. It had advanced two months in the previous Visa Bulletin.

In stark contrast, DOS has moved back the Indian final action date by 14 months to April 1, 2017.

These recent movements in the final action date may be indicative of trends in EB-5 petition filings from Chinese and Indian nationals. Demand from Chinese investors may be at a somewhat consistent volume, allowing USCIS adjudicators to gradually work through the backlog of applications.

On the other hand, demand for EB-5 immigration among Indian investors may be increasing.

The factors behind this may include a greater need among H-1B visa holders and holders of other temporary work visas—the many layoffs in the tech sector in recent months have affected numerous Indian nationals. These workers may be looking for a quick way to get an employment authorization document (EAD), and the EB-5 visa is one of the few ways to do so.

What impact can the final action dates have on an EB-5 investor’s immigration timeline?

If the date on which they filed their I-526 applications is after the applicable final action date, Chinese or Indian investors will not be able to receive their EB-5 Green Cards. If they already live in the United States under a non-immigrant visa, they not be able to adjust their immigration status either.

These delays can be especially inconvenient if an EB-5 applicant on a temporary visa wants to adjust his immigration status before his current visa expires. Or an EB-5 applicant may want his minor children to be eligible for Green Cards as dependents. If they turn 21 before receiving their initial Green Cards, an investor’s children will be ineligible for dependent status.

An extended delay in the immigration process can also affect an EB-5 investor’s repayment of funds. Since USCIS requires EB-5 funds to remain invested until an investor’s two-year conditional residency period concludes, the cutoff dates can make it more difficult for EB-5 projects and applicants to plan for repayment.

Fortunately, new Indian and Chinese applicants have a straightforward way to avoid cutoff dates altogether and get their Green Cards upon approval of Form I-526.

Indian Nationals: Invest in a Rural EB-5 Project

Under the RIA, EB-5 applicants who invest in a rural or high-unemployment TEA project are eligible for set-aside visas. These new visa categories are not subject to the above-mentioned cutoff dates.

In essence, this means that an Indian or Chinese national who invests in a TEA project may now be able to avoid the cutoff dates regardless of his nationality’s backlog. This allows applicants to both get their Green Cards upon I-526 approval and adjust their immigration status immediately upon filing Form I-526. (The latter applies to those who already live in the United States under non-immigrant visas.)

At the same time, there is a limited number of set-aside visas in each category. The rural TEA set-aside visa category gets 20% of the annual pool of EB-5 visas. This ample supply makes rural TEA projects the safest option for Chinese and Indian nationals; applicants who invest in a rural TEA project will have the best chance of getting a set-aside visa before the supply is exhausted.

Getting Started on the Immigration Process

We invite Indian nationals interested in an EB-5 investment to view our interview series featuring testimonials from investors in EB5AN projects. These episodes include several interviews with Indian nationals, who explain why our offerings were the best for both immigration and financial purposes.

While the latest cutoff dates for Indian nationals are certainly inconvenient, new investors don’t have to undergo these delays. For a free consultation on the EB-5 process, please contact EB5AN today.