What does it mean when your Priority Date is current but visa numbers are unavailable?

Your experienced EB-5 attorney will be able to explain retrogression and time delays concerning your wife's case. Each month, the State Department Visa Chart states when an investor can apply for conditional permanent residency after their I-526 petition is approved. However, if a particular country's demand for EB-5 visas is greater than the supply of visas, then there will be a time delay for those investors desiring to apply for the EB-5 conditional permanent residency. Therefore, even if the I-526 petition is approved, there will be a time delay for Visa issuance because of retrogression (demand greater than supply). The filing of the I-526 petition establishes a priority date and when the Visa is available for issuance is when the priority date becomes current.

If your wife’s I-485 was filed at the same time as yours and you received the green card in 2016, then the priority date must have been open for you at that time and your wife, as your derivative, also should have been approved at the same time. However, if her I-485 has been filed separately and later, then any retrogression that occurs from the time your application was filed and hers was filed will negatively affect her application adjudication. Right now, while they will accept the DS-260 applications for consular processing for cases with October 1, 2014, there are no visas available for January for regional center based applicants because of the reauthorization process. Thus, until you see the priority date on the visa bulletin that is beyond yours or noted with C for current/open, there are no visas available. However, as I noted above, the actual timing of the filing and when the retrogression occurred is very important. Thus, your immigration attorney should be able to explain things to you in detail.

If the priority date is current, that means immigrant visa numbers are available. The only country that is oversubscribed in EB-5 and subject to a cut-off date (i.e., the priority date is not current on the latest Visa Bulletin) is China. If you were born in China, and your I-526 petition was filed before 07/22/2014, then your priority date is current and there should be an immigrant visa number available for your wife. You should contact an experienced immigration attorney for assistance in communicating with USCIS Investor Program Office (IPO) via their email inquiry address. Infopass appointments and calls to the USCIS customer service do not work well for EB-5 cases because processing is centralized at the IPO.

In order to be approved, your wife's priority date has to be currently based on the Final Action Date in the Visa Bulletin. The visa numbers may have retrogressed since that time. You have not indicated what her priority date is or her country of chargeability or the category she is applying under. If you are unable to answer these three questions, you may not be communicating the facts correctly to the USCIS.

I recommend you get your attorney involved.