What is the status of reserved visas under the new EB-5 RIA?
By Anayat Durrani
Having a better understanding of the impact of the “reserved visas” provisions on immigrant visa wait times, post enactment of the EB-5 Reform and Integrity Act (RIA), has been the subject of much discussion. Questions about future visa allocation have remained largely unanswered but some EB-5 stakeholders are addressing the topic to bring more clarity.
One group states that country caps of 7% will apply to each reserved visa category, which potentially could greatly decrease reserved visas for investors coming from countries that are backlogged, according to Charles Oppenheimer, visa consultant and former Chief of Immigrant Visa Control at the U.S. Dept. of State; Joseph Barnett, partner, WR Immigration; and Lee Li, Director of Policy Research & Data Analytics, IIUSA.
“I suspect Charlie is correct about per country limits applying separately to each EB-5 category including the set aside categories,” says Robert Divine, attorney at Baker Donelson and former acting director of USCIS. “As always, a country that meets the 7% per country limits in a category still can receive more visa numbers for that fiscal year in that category, to the extent that other countries do not use up the other 93% of the visa numbers in that category.”
Potential backlog for certain EB-5 categories because of the 7% cap
Divine says in the bigger picture, visa numbers that are available in the reserved categories, particularly for high unemployment area, may begin to get “visibly backlogged for investors born in mainland China and maybe India, Vietnam, and even Korea fairly quickly once USCIS starts adjudicating I-526E petitions.”
He says rural numbers that have double the reserve, may be slower to fill up, “but if USCIS gives rural investors priority in adjudications as required the usage could show up faster in setting a cut-off.”
Barnett, a co-author of a paper on this topic, says he believes any “leftovers” after per-country caps are met “would go to the I-526/I-526E in each reserved visa category with the earliest priority date.” He says it would be similar to how the Chinese received 7,000 to 8,000 visas annually in 2015 to 2016 despite per-country caps.
Bernie Wolfsdorf, former President of the American Immigration Lawyers Association says while country caps of 7% will apply to each reserved visa category, he does not see a problem at this time, for two reasons.
“First, unused visas from Fiscal Year 2022 all got carried over to Fiscal Year 2023 that started October 1, 2022. This means we now have about 11,000 reserved visa for the current fiscal year—6,800 rural; 3,400 high unemployment and about 680 infrastructure,” says Wolfsdorf.
He says after reaching the per-country caps, “leftovers” will go to applicants in each reserved visa category with the earliest priority date. He says high demand countries like China, India and Vietnam will become eligible for the unused visas in the reserved categories and that was how China was able to draw some 7,000-8,000 visas in the earlier years.
“With the increased investment amounts of $800,000 and $1,050,000, we are seeing demand but not like in the prior era. For this reason, I am confident EB-5 applicants filing before the end of the first quarter of FY 2023, that is December 31, 2022, from China, India or Vietnam, are unlikely to experience visa quota backlogs,” says Wolfsdorf.
He believes the window of opportunity will remain open for most of FY2023 Q2, that concludes on March 31, 2023.
“If I was an applicant from China, India or Vietnam however, I would not be waiting to file because even with this large quota, you want to be in the front of these new reserved category waiting lines,” says Wolfsdorf.
Wolfsdorf says Fiscal Year 2024 likely has a good allocation of nearly 8,000 reserved visas “so the next two years are looking good for all applicants, even from potentially oversubscribed countries such as China, India or Vietnam.”
Talking points for RIA implementation with USCIS and DOS
The group has suggested some talking points for USCIS and DOS in regard to reserved visas per the RIA. They suggested DOS reconsider their decision to not make reserved visa numbers open to immigrant investors that filed Forms I-526 before passage of the RIA based on investments in rural areas or high unemployment areas. They suggested DOS allocate the reserved numbers from the previous fiscal year “available for use first to allow for maximum use of all visa numbers in a current fiscal year.”
If there isn’t sufficient demand for reserved visa numbers during the current fiscal year, they recommend DOS allocate unused carryover reserved visa numbers from the previous fiscal year in the unreserved category during that fiscal year.
They recommend that USCIS also publicly disclose the number of filings of each EB-5 visa category and country of chargeability per visa category. They also suggest DOS disclose this same detailed information in their “Annual Waiting List at NVC as of November 1 of each year” report.
Finally, the trio suggest DOS and USCIS “allow the same petition to wait in multiple lines for visa number allocation (i.e. rural, high unemployment, unreserved, etc.) as long as the petition is eligible” in order to reduce the agencies workload and maximize visa number usage in all categories during a fiscal year.
USCIS did not respond for comment.