Big changes for EB-5 in May visa bulletin
By Anayat Durrani
The U.S. Department of State has posted their May 2022 Visa Bulletin and with it comes changes for EB-5. The final action dates for filing charts have been updated to adhere to provisions set in the new EB-5 legislation, mainly the establishment of two pools of visa numbers within the EB-5 category.
One pool of numbers is ‘reserved’ for certain set-aside categories and the remaining available numbers will stay ‘unreserved.’
Final action dates listed in the May bulletin are effective immediately in April. Per the bulletin, EB-5 non-Regional Center program remains current, China included. The EB-5 Regional Center is current for all countries for final action, with the exception of China, under the “unreserved” category and now has a November 22, 2015 final action date. The bulletin states, “It may become necessary to establish a China-mainland born final action date and application filing date for the C5 and T5 categories as early as June to keep number use within the maximum allowed under the FY-2022 annual limits if sufficient demand materializes.”
Joseph Barnett, partner at WR Immigration, says the May Visa Bulletin appears to confirm that the visa set aside provisions in the EB-5 legislation seem to only count for future EB-5 investors and not those that filed prior to June 30, 2021, even if investors invested in rural area or high unemployment area projects.
“I say this because if those investors were to be included, it’s unlikely DOS would have put “C” for the new rural and HUA visa categories,” says Barnett. “Of course, it’s possible that DOS changes its position with pressure from EB-5 stakeholders and Congress.”
President Biden signed the omnibus appropriations bill on March 15, reauthorizing and reforming the EB-5 Regional Center through September 30, 2027, after an almost 9 month lapse that began June 30, 2021.
Barnett says the bulletin also confirms that “the per-country limitations are included for each visa category, and that there will be limited supply before there are backlogs again, once USCIS approves the I-526s and DOS can understand the amount of demand.”
He says with a normal annual limitation of 9,940 visas and about three visas per approved I-526, “that’s only around fifty I-526 petitions per country each year before demand exceeds supply.”
The Department of State has since resumed processing visa applications of approved EB-5 Regional Center petitions filed with USCIS on or before June 30, 2021.
"The May Visa bulletin is a huge bonanza because it makes clear we can file concurrent EB-5 petitions based on pending or approved cases for all categories except certain Chinese backlogged regional center cases. It will breathe new life into the program and already we getting non-stop calls from new investors” said Bernie Wolfsdorf, former President of the American Immigration Lawyers Association.