India Headed for EB-5 Visa Backlog Once Again
BY: Mona Shah, Esq & Rebecca S. Singh, Esq.
Today, the U.S. Department of State released the Visa Bulletin for October 2022, which has put EB-5 Indian nationals into a visa backlog for the second time. In other words, there are more Indian EB-5 applicants than visas available under the new fiscal year’s quota numbers. The new cut-off date under the Final Action Date (aka “Chart A”) is November 8, 2019. If the industry recalls (which we all probably want to put behind us!), this date is less than two weeks from the November 2019 deadline. It begs the question, was the cut-off date placed to manage visa expectations, as there was an inordinate amount of I-526 petitions being filed at that time to beat the capital investment increase (from $500,00 to $900,00) that took place on November 21, 2019.
What Does This Mean for the Indian Investor?
Starting October 1, 2022, Indian Nationals will be unable to take advantage of concurrent filing, allowed under the EB-5 Reform and Integrity Act (“RIA). This will affect those in the U.S. under a nonimmigrant visa seeking employment and/or travel authorizations as the EB-5 petition is pending. See below for more information on Concurrent Filing or listen to our podcast “Concurrent Filing For EB-5 Investors—Episode 156”
In addition, Indian nationals cannot obtain conditional permanent residency (conditional green card) until the priority date is current, meaning your I-526 petition must have been filed prior to November 8, 2019. Even more disheartening is that the Dates for Filing (Chart B) also has a cut-off date, advancing only one month from Chart A to December 8, 2019. This means you can apply for your adjustment of status along with work and travel authorization, but only if your application was filed prior to the Chart B cut-off date. Those outside the U.S. can begin visa processing at the consulates. Read more about the Visa Bulletin below or by clicking here.
What Can Be Done?
Unfortunately, the backlog hurts Indian nationals who filed prior to the implementation of the EB-5 Reform and Integrity Action (“RIA”), which created new categories for visa set-asides. We could see a shift as we did the first time with India becoming current again. The EB-2/3 categories jump previous years, allowing many EB-5 investors to obtain permanent residence in these categories rather than the EB-5 category. Many are withdrawing their petitions, which could ease the backlog. We also did not see much action in I-526 petition filings in 2020 and 2021 due to the pandemic and the close of the regional center program. However, it is too soon to tell. Here’s what to do:
Indian investors with pending I-526 petitions have until September 30 to file the adjustment of status application to at least obtain work and travel authorization, if necessary. We urge you to file quickly.
For those currently in the process of filing the initial EB-5 petition, look for visa set-aside projects.
RIA also brought about the allocation of visa set asides. The new law allows applicants who invest in certain projects (rural, high unemployment, and infrastructure) access to reserved visas and priority processing. As of the October visa bulletin, all countries are current for the three set aside categories, providing a way for Indian and Chinese backlogged investors to apply for EB-5 and concurrent filling, so long as the project qualifies.
Chart B does not help age out children. USCIS has made it clear that Chart A determines the date for calculating a child’s age, so the child must wait for the parent’s PD to become current under Chart A to determine the child’s eligibility for the green card. The Child Status Protection Act (CSPA) allows for a child’s age to freeze under the age of 21 once an individual has filed the I-526 petition. However, USCIS has prioritized the process of adjudicating I-526 petitions using the visa availability approach rather than the first-in first-out approach. This allows the I-526 to continue pending, which will continue to freeze the child’s age until a visa if available. See our previous article on the EB-5 adjudication process for more information.
What is the Visa Bulletin?
The monthly visa bulletin summarizes the availability of immigrant visas for the family-based, employment-based, and diversity visa categories each month. The U.S. limits the number of individuals who may immigrate permanently each year, e.g., the EB-5 category, specifically, is limited to 10,000 visas per year. If a category shows a ‘C’, it is current and visas are readily available. If a category shows a date, this is known as the Final Action Date. The Final Action Date marks the end of a “current visa” status for a country, indicating a backlog. It does not affect the project. Countries with a Final Action Date means that an investor is only eligible for the green card (adjustment of status or consular processing) if the priority date is available.
Priority Date and Cut-off Dates
For EB-5 applications, the priority date is established by the date USCIS receives the I-526. In order for the priority date to be current, it must be a date prior to the cut-off date published in the visa bulletin at http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.
According to the current Visa Bulletin, the EB-5 immigrant visa category for Indian EB-5 investors will retrogress beginning October 1, 2022, with a cut-off date of November 8, 2019. This means, I-526 cases filed on or after November 8, 2019 will be placed in the waiting line.
For more information on the Indian EB-5 investor backlog, tune in to our upcoming episode of the EB-5 Investment Voice podcast!