EB-5 Visa Bulletin Warns Backlog May Be Months Away

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In a rare addition to the Visa Bulletin, the U.S. Department of State and USCIS issued a warning: EB-5 visa backlogs in the set-aside categories are expected this year.

This news comes as no surprise to us. Our team and other industry groups have published data and have been warning of this for months. And while this news has some negative implications, we believe this advance warning is good for investors.

You still have time to act and obtain flexible employment authorization documentation (EAD) and an advance parole (AP) travel document with an adjustment of status—for many applicants in the U.S., this is a key goal with any EB-5 application.

In this article, we discuss what the January 2025 Visa Bulletin says and examine the warning in the context of similar warnings. We will then discuss immigrant petition filing data and provide some analysis. Finally, we will address who would be most impacted by backlogs and offer some suggestions for how to move forward.

January 2025 Visa Bulletin Foreshadows Upcoming EB-5 Backlogs

Every month, the U.S. Department of State publishes a Visa Bulletin, an update that summarizes immigrant visa availability. At times, the Visa Bulletin also includes comments and projections.

The January 2025 Visa Bulletin includes such a comment, quoted below:

“E. VISA AVAILABILIY [sic] IN THE EMPLOYMENT FIFTH PREFERENCE (EB-5) SET ASIDE CATEGORIES”

“The Department of State and USCIS note increased I-526E petition approvals, and both agencies see increasing numbers of individuals processing their applications to completion in the EB-5 set aside categories. It may become necessary to establish Dates for Filing and Final Action Dates during the fiscal year to ensure that issuances in these categories do not exceed annual limits. This situation will be continually monitored, and any necessary adjustments will be made accordingly.”

The significance of this comment for EB-5 investors—or anyone interested in making an EB-5 investment—cannot be overstated. USCIS is anticipating a visa backlog in the set-aside EB-5 visa categories this fiscal year.

Let’s break that down.

The EB-5 Reform and Integrity Act of 2022 (RIA) created new categories of set-aside EB-5 visas for rural and high-unemployment targeted employment area (TEA) projects. A growing number of immigrants who invested in these TEA projects are starting to receive their EB-5 visas.

Crucially, the number of available visas is limited. So, as more set-aside visas are issued, the number of available visas goes down. If a set-aside visa category runs out of visas for a given country in a given year, the category becomes backlogged—meaning no more visas will be issued to immigrants from that country until visas become available again.

For each backlogged country, USCIS will publish a cut-off date, which represents the date through which visas are currently available to investors from that country. This cut-off date uses your priority date—the date on which your EB-5 application is filed—as the operative reference date to determine if a visa is available once you are approved. This means only applicants with priority dates earlier than the cut-off date are considered “Current” and can immediately obtain a Green Card.

According to the above note in the January 2025 Visa Bulletin, USCIS is preparing for one or both of the set-aside EB-5 visa categories to become backlogged. To understand this comment from the Visa Bulletin in context, we will look at three similar comments issued in past Visa Bulletins that warned of possible backlogs.

Brief History of EB-5 Visa Backlog Warnings

A number of countries have experienced EB-5 visa backlogs over the course of the EB-5 program’s history. China was the first to become oversubscribed back in May 2015. The next to be backlogged was Vietnam in May 2018. Then, India became backlogged in July 2019. And importantly, China and India remain backlogged in the unreserved EB-5 category to this day.

In each of these past cases, the Visa Bulletin provided some advance warning.

The February 2015 Visa Bulletin said, “The expected increase in China-mainland born demand would require the establishment of a cut-off date for such applicants no later than the summer months.” The backlog was published in the May 2015 Visa Bulletin.

The February 2018 Visa Bulletin said that Vietnam would “become subject to a final action date no later than April.” The backlog was published in the May 2018 Visa Bulletin.

The June 2019 Visa Bulletin said that, for India, “Continued heavy applicant demand is expected to result in the India Employment Fifth preference (E5) category approaching the per-country annual limit during July. This is likely to result in the imposition of a July final action date.” The backlog was published in the July 2019 Visa Bulletin.

The chart below illustrates the timeline of these historic Visa Bulletin warnings for China, Vietnam, and India. The warning date is shown in green, and the date USCIS established cut-offs is shown in red.

These three past Visa Bulletin warnings are highly similar to the one issued in the January 2025 Visa Bulletin. Each of these past statements proved to be an accurate assessment of when visas would become unavailable. We believe this new statement will also likely prove true.

This belief is not based solely on this warning. Evidence has been mounting for months that one or both of these set-aside categories will become backlogged soon. We discuss this data next.

Our Data Analysis Has Shown a Backlog Is Coming

Since March 2024, EB5AN has been warning that EB-5 petition filing data indicates demand is outpacing supply for set-aside EB-5 visas. This is particularly true of high-unemployment TEA set-aside visas and for investors from China and India.

By analyzing immigrant petition data, we have projected a backlog of at least a few years for investors in the high-unemployment TEA category. The rural TEA category may also be facing a short backlog. Below is an illustrative chart and a summary of our analysis.

Approximately 1,000 set-aside visas per year are allocated for investments in high-unemployment areas and 2,000 set-aside visas per year for investments in rural areas. According to the most recent information release by USCIS, as of July 31, 2024, there have been 3,995 I-526E filings for investments in high-unemployment areas and 2,809 I-526E filings for investments in rural areas since the RIA was enacted.

Assuming each Form I-526E filing requires 2.0 visas (accounting for the investor and dependent family members), we estimate that approximately 8,000 visas will be needed to meet the demand for high-unemployment set-aside visas through FY2024 and FY2025. According to the Department of State, there is a supply of only 2,137 visas. Considering the demand for 8,000 visas, this leaves the high-unemployment category with a shortage of 5,900 visas. This shortage would imply a backlog of at least 5 years for investors from countries with a high demand for high-unemployment EB-5 visas. Reliable data on visa usage per Form I-526E filing is not yet available, but recent figures suggest about 2.0 visas per filing rather than 2.5. Changing this multiplier significantly alters outcomes.

Alternatively, we estimate that approximately 5,600 visas will be needed to meet the demand for rural set-aside visas through FY2024 and FY2025. According to the Department of State, there is a supply of 4,274 visas. Considering the demand for 5,600 visas, this leaves the rural category with a shortage of 1,300 visas.

Other independent industry groups have analyzed a range of outcomes based on Form I-526E approval rates and visas per filing. The analyses from IIUSA and AIIA offer further detail.

Additionally, regarding country-specific data, China and India are the main drivers of EB-5 visa demand. As of July 31, 2024, there have been 3,690 (52%) I-526E filings for investors from China and 1,216 (17%) I-526E filings for investors from India since the RIA.

Since each country is allocated a 7% share of all EB-5 visas, if the number of people from a given nation who apply for EB-5 visas is greater than the number of visas allotted to that nation, a visa backlog occurs for that country. In this event, EB-5 investors from the backlogged country will have to wait to immigrate until more visas are made available.

Because this data is for petition filings and not issued visas, the backlog has not shown up yet in the Visa Bulletin. It takes time for these petitions to be approved and for investors to apply for visas. This is what is commonly referred to as an “invisible backlog.”

But the time of the official backlog showing up is rapidly approaching.

Petitions under the RIA are getting approved, and visas are being issued. What we saw in the filing data back in March is now showing up in the Visa Bulletin.

But what does all of this mean for you? What, if anything, should you do?

Who Will Be Impacted by the Potential Backlog?

Based on publicly available data, the people most impacted by the coming backlogs are expected to be investors from India and China. More specifically, those who are already in the United States and plan to adjust their status will be impacted more severely in the short term. Once cut-off dates are published on a future Visa Bulletin, U.S.-based EB-5 investors will have only a few weeks to complete an EB-5 investment and still qualify to adjust status and get a flexible EAD and AP travel document.

Conversely, the published backlog in the Visa Bulletin doesn’t substantially alter the timeline for an investor obtaining a Green Card, whether they invest the day before or after a backlog announcement. A long Green Card backlog already exists for many EB-5 investors who have chosen a high-unemployment TEA project.

Investors from countries with lower demand for EB-5 visas are not as likely to be affected. Backlogs only affect countries that reach their annual EB-5 visa limit, and those countries are already affected by the invisible backlog that hast not shown up yet in the bulletin.

Also, note that the Visa Bulletin does not say whether a backlog is expected for rural or high-unemployment TEA visas—or both. The available data, though, does clearly suggest that the high-unemployment category is much more severely impacted than the rural category. If the rural category becomes oversubscribed, delays will be shorter because a higher number of visas are set aside, or reserved, in that category each year.

Notably, investors outside the United States cannot file to adjust their status when filing their immigrant petitions. While such investors are impacted by backlogs in that they face delays in obtaining their immigrant visas, the only option for them is to wait for visas to become available again. Therefore, any change in the Visa Bulletin is not nearly as critical for overseas EB-5 investors compared to EB-5 investors already in the United States who could qualify for an adjustment of status.

Steps You Should Consider Taking

If you have decided to make an EB-5 investment, you should consider taking steps to get ready to invest. Whether you are impacted by a backlog or not, the earlier you invest, the better your position in the queue for an EB-5 visa will be.

This is especially true if you are a U.S.-based Indian or Chinese EB-5 investor who is planning on adjusting status. As more investors understand the ramifications of an upcoming backlog in the reserved categories, we expect many investors previously on the fence will move forward with their EB-5 application. This will further add to the visa demand in each category, making an investor’s priority date that much more critical.

As a first step, you should hire an immigration attorney immediately. We expect that once a backlog is published, a surge of investors will seek to file prior to any deadline. By selecting an attorney now and starting the process, you will get ahead of the rush.

Second, in coordination with your attorney, you should begin to document your source of funds. Source of funds documentation takes time. You may also need time to get your finances in order. Once a backlog is announced, you have limited time to file if you want to take advantage of concurrent filing for adjustment of status—something we will discuss in more detail below.

Third, you need to choose a project. Your choice of project will determine whether you ultimately receive a Green Card and a return of your money. You should start researching projects as soon as possible.

EB5AN is currently offering two best-in-class high-unemployment TEA projects: Boynton Beach, an equity offering with higher returns, and ONE Tampa, a secured loan offering. EB5AN also has several Form I-956F–approved rural TEA projects that are under construction with significant job creation.

As an EB-5 investor, you need to consider what your top priority is in seeking an EB-5 investment. Is it to receive a flexible EAD and AP travel document in just a few months and a faster return of your investment capital, such as with a short-duration high-unemployment TEA project like Form I-956F–approved ONE Tampa? Or is it to ensure you secure your Green Card as quickly as possible with minimal immigration risk (e.g., a rural 956F-approved project with all 10 jobs already created for each investor)?

These three steps are important, and they take time to complete. By taking action now, you can avoid making any rash decisions—particularly as visas become backlogged. EB-5 investments are substantial and carry certain risks. Your family’s future is at stake. You need time to read offering documents, vet project developers and regional center sponsors, and make an educated choice.

You Have Limited Time to Concurrently File for Adjustment of Status

If you are already in the United States, (e.g., on an H-1B or F-1 visa), you may be eligible to file your EB-5 immigrant petition and adjust your status at the same time. This is known as concurrent filing.

Concurrent filing, however, is possible only if visas are available. Once cut-off dates are published, you have limited time to concurrently file.

The Visa Bulletin is published about half a month before the upcoming month begins. The January 2025 Visa Bulletin, for example, was published on December 3, 2024. If cut-off dates appear on the Visa Bulletin for the next month, you have to the end of the current month to file your petition and adjust status.

In practice, this means a 20- to 25-day period.

Learn More through Our Webinar

If you’d like to learn more about the January 2025 Visa Bulletin and how it might affect you, watch our webinar with our guest panelist H. Ronald Klasko of Klasko Immigration Law Partners, LLP.