In a rare addition to the Visa Bulletin, the U.S. Department of State and USCIS issued 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 is not good, we believe this advance warning is good for investors.
You still have time to act if adjustment of status is a key goal with the EB-5 application.
In this article, we discuss what the January 2025 Visa Bulletin says and look at the warning in the context of similar warnings. We will then discuss immigrant petition filing data and provide some analysis. Finally, we will examine who would be most impacted by backlogs and offer some suggestions for how to move forward.
For comprehensive analysis and expert insights, join our webinar this Friday, December 13, at 4:00 p.m. EST. We will be joined by guest panelist H. Ronald Klasko of Klasko Immigration Law Partners, LLP.
Register for Webinar, Friday December 13 at 4 PM EST
January 2025 Visa Bulletin Foreshadows Upcoming EB-5 Backlogs
Brief History of EB-5 Visa Backlog Warnings
Our Data Analysis Has Shown a Backlog Is Coming
Who Will Be Impacted by the Potential Backlog?
Steps You Should Consider Taking
You Have Limited Time to Concurrently File for Adjustment of Status
Learn More through Our Upcoming Webinar
January 2025 Visa Bulletin Foreshadows Upcoming EB-5 Backlogs
Every month, the U.S. Department of State publishes a Visa Bulletin, which 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.
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—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.
According to this 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 EB-5 program history. China was the first to become oversubscribed back in May 2015. The next to be backlogged was Vietnam in April 2018. Then, India became backlogged in July 2019. China and India remain backlogged 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 May.
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 April.
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 July.
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.
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 the data indicate 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 many 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.
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 investors to apply for visas.
But the time of the official backlog showing up is nearing.
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 have the most to lose. Once cut-off dates are published, investors in the United States have little time to adjust status. A backlog showing up in the visa bulletin doesn’t materially change the timeline for getting the Greencard for an investor that invests the day before a backlog vs. the day after the backlog shows up in the visa bulletin. There are already enough applicants ahead of any High Unemployment filing today where it is known there will be a long backlog for receiving the Greencard .
Investors from countries with lower demand for EB-5 visas are not as likely to be impacted. Backlogs only affect countries that reach their annual EB-5 visa limit and those countries are already impacted by the “invisible backlog” that hasn’t shown up in the bulletin yet.
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 suggests 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 more visas are available each year.
Investors outside the United States cannot file to adjust their status when they file their immigrant petitions. While such investors are impacted by backlogs in that they face delays, the only option for them is to wait for visas to become available again. Due to this any change in the visa bulletin isn’t nearly as critical for those investing from overseas vs. those investing from within the US looking to adjust 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 waiting for an EB-5 visa. This is critical if you are an investor within the US that is planning on adjusting status and are from a high-demand country like India or China.
First, you should hire your 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. We will discuss concurrent filing in more detail below.
Third, you need to choose a project. Your choice of project will, in large part, 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. Additionally EB5AN has several I-956F approved Rural projects that are under construction with job creation already occurring. Please remember that applying before the backlog shows up in the visa bulletin will not impact your overall greencard time line – that is already set by the amount of investors in your chosen category ahead of you.
As an EB-5 investor you need to consider what your top priority is with the EB-5 investment. Is it to receive the EAD now and have the best chance at a faster return of capital, such as with a short duration HUA project like 956F approved ONE Tampa? Is it to ensure you secure your Green Card as quickly as possible with as little possible immigration risk (e.g. a Rural 956F approved project with all 10 jobs already created for each investor)?
These three steps are important and take time to complete. By taking action now, you can avoid making any rash decisions. 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 can file your EB-5 immigrant petition and file to adjust your status at the same time. This is known as concurrent filing.
Concurrent filing 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 one month ahead. 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 Upcoming Webinar
If you’d like to learn more about the January 2025 Visa Bulletin and how it might affect you, sign up for our webinar today. The webinar will be held on Friday, December 13 at 4:00 p.m. EST., and will feature guest panelist H. Ronald Klasko of Klasko Immigration Law Partners, LLP.
