United States Citizenship and Immigration Services (USCIS) implemented a new visa availability processing approach for I-526 petitions on March 31, 2020. Prior to this, I-526 petitions were processed using a first-in-first-out (FIFO) approach, meaning that petitions were processed based on when they were received.
The FIFO approached resulted in leftover visas at the end of each fiscal year, as the combination of country caps and unequal EB-5 demand across different nations drove up backlogs. The visa availability approach is intended to reduce the number of leftover visas by processing I-526 petitions according to the availability of EB-5 visas for the investor’s country. Therefore, the impact of this new approach on EB-5 investors will vary depending on their country of origin.
Negatively Affected Countries
Chinese EB-5 investors are currently the only ones who will feel the negative effects of the new visa availability approach. However, there is potential for EB-5 investors from other countries with backlogs or high demand to also be negatively affected down the line.
Positively Affected Countries
The visa availability approach will likely benefit EB-5 investors from countries other than China, as USCIS will now prioritize I-526 petitions from those countries once the annual per-country EB-5 visa limit has been reached for China. It was initially thought that EB-5 investors from India would be negatively affected by the new approach, but USCIS disclosed during a public engagement on March 13 that it expects India’s backlog to clear up by summer 2020.
Exception to the Approach
Expedite requests will be not be subject to the visa availability approach and will be honored regardless of the EB-5 investor’s country of origin.
Latest Final Action Dates and Dates for Filing
The U.S. Department of State – Bureau of Consular affairs releases a monthly Visa Bulletin, which includes the latest EB-5 final action dates and dates for filing.
Chart A in the Visa Bulletin contains the final action dates. EB-5 investors from countries with a “current” final action date can schedule their visa interviews and apply for conditional permanent resident status as soon as their I-526 petitions are approved. However, EB-5 investors from countries with a backlog need to check the Visa Bulletin to determine whether their priority date is on or before the final action date. As of April 2020, China, India, and Vietnam are the only countries with a backlog.
Chart B in the Visa Bulletin contains the visa application filing dates, which are used by USCIS to assign I-526 petitions for adjudication. EB-5 investors from countries with a “current” date for filing can file their visa applications with the National Visa Center regardless of priority date, whereas investors from countries without a current date for filing can only file a visa application if their priority date is on or before the date for filing. The only country, as of April 2020, without a “current” date for filing is China.
