How is EB-5 visa availability determined?

Each year, approximately 10,000 EB-5 visas are available. These are divided equally between all countries, which means up to roughly 710 visas (7.1%) are available to investors from any given country. If investors from one country do not use their full allocation, the unused visas are assigned to applicants from other countries. Additionally, if any visas in the family-based categories remain unused, they can roll over into the EB-5 allocation for the next fiscal year, thus boosting the number of EB-5 visas available.

Of the annual EB-5 visa total, 32% is reserved for projects located in targeted employment areas (TEAs). This is further divided into 20% for rural TEAs, 10% for high-unemployment TEAs, and 2% for certain public infrastructure projects. If visas in any of these reserved visa categories are left unused at the end of the fiscal year, they will carry over in the same category the following year.

Each month, the Department of State publishes a Visa Bulletin that shows updated information on the availability of visas in each category for each country. Several factors contribute to the availability of visas, including the number of visas already allocated, the number of visas left in a particular category for the present fiscal year, and the anticipated demand for visas. If demand is high for one country, that country could experience visa backlogs—and even visa retrogression.

A visa backlog occurs when visas are not currently available for a given country, which means the country is oversubscribed. In the Visa Bulletin, countries that currently have visas available are denoted with a “C” (which means “current”). For countries with visa backlogs, a date is shown. This is known as the cut-off date or the final action date. An EB-5 petitioner from that country with a priority date that falls before the date displayed can proceed with their application for permanent residency. The priority date is the date on which the petitioner’s Form I-526 is properly filed with United States Citizenship and Immigration Services (USCIS), and it appears on the Form I-797C, Notice of Action, USCIS will issue to confirm receipt of the petition. Visa backlogs have historically affected China the most severely, but they can arise for other countries.

EB-5 investors from countries with historically high EB5 visa demand can obtain a visa much quicker with reserved visas. Investors assigned to the reserved visa categories are guaranteed to obtain an EB5 visa upon approval of Form I-526 — regardless of their nation’s EB5 visa demand and availability.

Visa retrogression occurs when the final action date listed in the Visa Bulletin moves backward instead of forward. This usually happens around the end of the federal fiscal year in September, and it is usually resolved when the new visas become available in October. Despite the difference between visa backlogs and visa retrogression, the two terms are often used interchangeably.