How Is EB-5 Visa Availability Estimated?

The annual EB-5 visa availability is determined by statutory limits applied by the Department of State (DOS) for the issuance of immigrant visas each fiscal year. A percentage cap restricts the number of visas that can be allotted to the EB-5 program as well as to each country within the total EB-5 quota.

As the popularity of the EB-5 program continues to grow among global investors, the limited per-country share of EB-5 visas means that investors from high-demand countries may have to wait for a long time before a visa becomes available to them.

Understanding the availability and processing times of EB-5 visas is crucial for investors to make informed decisions about their immigration plans. Investing in certain targeted employment area (TEA) projects could give applicants access to a surplus visa supply and much faster processing than other standard investments.

Given the substantial investment requirement of the EB-5 program, investors must be aware of the visa availability and expected processing time of their application before they make a financial commitment to an EB-5 project.

In this article, we will discuss how annual EB-5 visa availability is estimated. We will also explore investment options that offer Green Cards to investors in a short time without any backlog issues.

EB-5 Visa Distribution

The Immigration and Nationality Act (INA) sets a numerical limit to the total number of immigrant visas (Green Cards) that the DOS can issue every year to noncitizens seeking permanent residency in the United States. Generally, the annual cap for family-based visas is 226,000, and that for employment-based visas is 140,000.

However, the actual number of employment-based visas available is often more than 140,000, as the unused family-based visas from the previous fiscal year are also added to the total employment-based visa quota in a given year. For instance, in FY 2024, the total employment-based visa availability went up to 161,000 due to the addition of unused visa numbers from FY 2023.

This overall allocation is then divided into five sub-categories within the employment-based category (EB-1 to EB-5), each receiving a certain percentage of the total annual supply.

The EB-5 program receives 7.1% of the employment-based visa quota, i.e., about 10,000 EB-5 visas per year. On top of that, a 7% per-country cap limits the number of visas available to citizens of any one country. This means that regardless of a country’s population or application volume, only about 700 visas are available per country every year, which includes the primary investors and their family members.

Due to this ceiling, when the demand exceeds the supply of visas for any particular country, it leads to a visa waiting list or backlog. Data released by the DOS in November 2023 showed that 39,883 EB-5 applicants (including principal investors and family derivatives) were awaiting an EB-5 visa, of which 33,676 visa applicants were from China. As we can see, the backlog is severe due to the overwhelming demand from Chinese investors and annual visa availability constraints.

The Visa Bulletin

Every month, the DOS publishes a Visa Bulletin to update stakeholders on the Green Card waiting list.

Since the number of immigrants seeking Green Cards almost always exceeds the annual limit, the DOS allocates a priority date to applicants to determine their place in the visa queue.

Applicants can move forward with the immigration process only when the priority date is “current” in their category.

By comparing the cut-off dates published in Visa Bulletin against their priority date, investors can know how far along they are in the queue and how much longer it might take before they can get their Green Card.

For most countries, the EB-5 visa priority date remains “current,” meaning there are no backlogs, and visas can be issued soon after the EB-5 petition approval. However, at the time of writing, applicants from China and India are stuck in a backlog, waiting years for their priority date to become “current.”

As of June 2024, the EB-5 unreserved category cut-off date is December 15, 2015 for China and December 1, 2020 for India, indicating that applicants with a priority date later than these dates do not have visa availability.

On the positive side, the EB-5 category has three newly introduced reserved visa sub-categories with a “current” priority date for all countries, including China and India. Per the July 2024 Visa Bulletin, these categories have no backlog or waiting list.

Then again, visa availability is not uniform across the three reserved EB-5 sub-categories. Although the Visa Bulletin shows that visas are currently available, data indicates that reserved categories may also become oversubscribed even before the backlog is reflected in the Visa Bulletin. Prospective investors must carefully consider future backlog projections in reserved categories and select an investment that promises the best outcome.

Next, we will discuss the visa availability within the reserved EB-5 categories and the best investment options for applicants seeking a fast-track Green Card.

Reserved EB-5 Visa Set-Asides

The EB-5 Reform and Integrity Act of 2022 (RIA) introduced a remarkable provision in the EB-5 program by carving out a 32% reserved set-aside visa quota within the EB-5 category for investments in TEA projects. This measure not only aims to promote EB-5 investments in underserved areas but also presents an opportunity for post-RIA investors to skip the long queue in the unreserved category.

The breakdown of the reserved set-aside visa percentages is as follows:

• 20% for investments in rural areas.
• 10% for investments in areas with high unemployment rates.
• 2% for investments in specific government-approved infrastructure projects.

Set-aside visas are especially beneficial for investors from China and India, as they can now bypass the existing pre-RIA backlog by selecting a reserved category investment. With surplus reserved visas available, there is no extra waiting time for visa availability, and investors can receive a Green Card as soon as their EB-5 petition is approved.

Sure enough, after the implementation of the RIA, many reserved category investors have been successful in obtaining a Green Card in less than a year.

Rural TEA vs. High-Unemployment TEA Visa Availability

The rural TEA category receives the largest share (20%) of the total EB-5 visa supply, which means more visas are available for rural investments than the other set-aside categories. As the demand for rural projects is not as high as for high-unemployment TEAs, the rural visa quota is expected to last the longest.

Moreover, rural investment petitions are eligible for priority processing as mandated by the RIA. This is an added benefit for rural TEA investors as they get precedence over other EB-5 applicants for visa approval.

The high availability of rural TEA set-aside visas, along with the priority processing of applications, makes rural investments the best choice for EB-5 investors seeking a Green Card in the shortest possible time.

In comparison, the high-unemployment TEA category gets a smaller allocation (10%) of the total EB-5 visas. Also, projects in this category have dominated the EB-5 market for a long time and have a high demand among investors.

With more investor interest but smaller visa allocation, the high-unemployment TEA category may already have become oversubscribed. Even though this category is still “current” in the latest Visa Bulletin, it could go into a backlog much sooner than the rural TEA quota. Potential investors from China and India must be prepared to wait for a considerable time for visa availability if they choose to invest in this category.

FY 2024 EB-5 Visa Availability in Numbers

Total employment-based visa limit for FY 2024: 161,000

EB-5 allocation (7.1%): 11,431

Reserved visas (32%): 3,658

Unreserved visas (68%): 7,773

In addition to the annual 7.1% EB-5 quota, there are 6,396 unused reserved visas carried over from FY 2022, which are now a part of the unreserved visa pool, plus 4,478 unused reserved visas carried over from FY 2023 that get added to the reserved visa pool.

Total reserved visa quota: 3,658 + 4,478 = 8,136

Total unreserved visa quota: 7,773 + 6,396 = 14,169

Total EB-5 visa availability for FY 2024: 22,305

The distribution of reserved visas within the three set-aside categories is as follows:

Rural TEA projects: 8,136 x 20/32 = 5,085

High-unemployment TEA projects: 8,136 x 10/32 = 2,542

Infrastructure projects: 8,136 x 2/32 = 509

Besides having a small visa quota, infrastructure project investments are not very popular among investors as there is not enough clarity about the type of projects that can qualify for this category.

Between rural and high-unemployment TEA investments, the availability of rural set-aside visas is much higher, with a lower probability of retrogression in the near future.

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