July 2023 Visa Bulletin: No Progress in Chinese and Indian EB-5 Visa Backlogs; Rural Category Still Available

In the wake of the EB-5 Reform and Integrity Act of 2022 (RIA), China and India—two of the largest EB-5 markets—have experienced a resurgence in demand.

Besides the new opportunity to avoid the visa backlogs through the new set-aside visa categories, many Chinese and Indian investors may also be interested in transitioning from a temporary work visa (such as the H-1B visa) to the EB-5 visa.

With massive layoffs in the technology sector since 2022, an increasing number of Chinese and Indian professionals are looking to adjust their immigration status quickly. Under the RIA, Chinese and Indian applicants who already hold a U.S. visa may be able to get an employment authorization document (EAD) and travel permit in as little as 60 days.

Despite the RIA’s unprecedented immigration incentives for Chinese and Indian EB-5 investors, the backlog of pending applications from both countries is still considerable. In India’s case, USCIS has been unable to reduce the backlog, with the cutoff date for Indian investors moving back 14 months in the June 2023 Visa Bulletin.

And in the July 2023 Visa Bulletin, there is no progress toward clearing the backlogs for either country.

In essence, this means that Chinese and Indian EB-5 applicants who invested before the RIA face an increasingly long wait to immigrate through the EB-5 program. Unlike post-RIA investors, these earlier applicants do not qualify for the set-aside visa categories. They are also ineligible to adjust their immigration status concurrently and thus get a fast EAD and travel permit.

While the situation for post-RIA investors from China and India is positive thanks to the set-aside visa categories, there is an important factor potential investors must consider.

Under the RIA, a limited number of EB-5 visas are allocated to the set-aside visa categories each year. This means that once enough EB-5 applicants invest through the set-aside visa categories, these will also become backlogged. It is important to note that, even though the three set-aside categories are still available as of the July 2023 Visa Bulletin, this may not be the case once an investor gets approval for Form I-526E and can thereafter apply for a Green Card.

If the set-aside category an EB-5 applicant invested in is oversubscribed at the time their Form I-526E is approved, then the investor will be ineligible for the set-aside benefits. Like pre-RIA investors, this investor will not be able to avoid the cutoff dates and will likely face backlog-related delays before receiving his EB-5 visa.

(For further information on the set-aside visa supply and how many visas are available for each category, we invite you to watch our recent interview with Charles Oppenheim, former head of Immigrant Visa Control.

There are two main ways that new EB-5 investors can avoid this scenario.

First, potential EB-5 applicants should start doing research on EB-5 projects, invest, and file Form I-526E as soon as possible. This increases their chances of getting their EB-5 Green Cards through the set-aside categories before the supply is exhausted.

Second, potential applicants from China and India should strongly consider investing in a rural EB-5 project. The RIA set aside 20% of the yearly EB-5 visa supply for rural projects, making it by far the largest set-aside category. High unemployment and infrastructure projects get only 10% and 2% of the yearly visa supply, respectively.

As the following overview of the July 2023 Visa Bulletin shows, Chinese and Indian applicants who are not eligible for set-aside visas will likely have to wait for many additional years before immigrating through the EB-5 program.

Cutoff Dates in the July 2023 Visa Bulletin

Chart A, “Final Action Dates for Employment-Based Preference Cases”

Approximately 15 months since the RIA was signed into law in March 2022, all three set-aside visa categories—rural, high-unemployment, and infrastructure—are still marked as “Current.” As explained above, the set-aside categories could also become backlogged in the future, especially given the renewed volume of I-526E applications from China. The Chinese market had been stagnant before the RIA due to the lengthy cutoff dates for Chinese investors. However, this new provision has reignited demand for EB-5 immigration in what has been the program’s largest market historically.

On the other hand, the final action dates for Chinese and Indian pre-RIA investors are September 8, 2015, and April 1, 2017. This means that any investor from either country who submitted his I-526E petition after the applicable final action date is not eligible to receive a Green Card—even if they have already received I-526E approval from USCIS.

In recent years, India has also become a leading EB-5 market along with China. As these two countries generate most of the yearly volume of EB-5 applications, set-aside visas are currently the only way for Chinese and Indian investors to immigrate without backlog-related delays.

Chart B, “Dates for Filing of Employment-Based Visa Applications”

The dates for filing for China and India are January 1, 2016, and December 8, 2019, respectively. These cutoff dates restrict when investors can apply for Green Cards following I-526E approval.

Invest in a Rural EB-5 Project

Investing in a rural EB-5 project provides Chinese and Indian investors with immigration benefits that are unprecedented in the EB-5 program. This is especially the case for Chinese and Indian nationals who already live in the United States.

Discover how an investor in one of EB5AN’s rural projects got an EAD in only 60 days.

The unrestricted benefits of an EB-5 Green Card—full employment authorization, freedom to travel, and more—can potentially be yours faster than expected. For further guidance on the fastest way to enjoy the benefits of EB-5 immigration, schedule a free consultation with EB5AN.