The February Visa Bulletin is out, with filing dates and final action dates for EB-5 applications remaining the same since September 2024.
The final action date for Indian investors applying under the Unreserved category is Jan. 1, 2022, and the filing date is April 1, 2022. Meanwhile, the final action date for Mainland Chinese EB-5 investors is July 15, 2016, with a filing date of Oct. 1, 2016.
For EB-5 investor visas, the filing date is when the applicant can submit any EB-5-related forms to the U.S. Citizenship and Immigration Services (USCIS). The final action date is when the agency can issue a visa to an approved EB-5 investor.
These dates for other nationalities in the Unreserved and EB-5 set-aside categories remain current. Therefore, there are no backlogs associated with those other countries applying for a visa under these categories.
In January, the Department of State (DOS) announced that a potential backlog for EB-5 visa applications under the set-aside categories might become a reality.
What is a backlog and why is it important for the EB-5 visa?
Since the EB-5 Program underwent reform in 2022, the set-asides have allowed prioritized applications and faster processing times for applications involving investment in EB-5 projects located in Target Employment Areas (TEAs) in any of these areas: rural, High Unemployment Area (HUA), and infrastructure projects in rural or urban settings.
However, these benefits might end sometime during the 2025 fiscal year, which concludes on Sept. 30.
In practice, a backlog means a waiting line for EB-5 applicants from a specific country because demand surpassed the annual limits set by the U.S. government for these visas. The backlog grows as demand grows, and more applicants wait in line for new visas to become available.
Basically, at some point, a potential set-aside backlog will be reflected in the Visa Bulletin when the USCIS assigns a specific cut-off calendar date for foreign nationals of a particular nationality who filed after that date. In return, it could trigger a chain reaction. If the high demand continues and the number of visas remains limited, the DOS may even retrogress the final action dates for EB-5 visas, even if the application is approved entirely.
EB-5 attorney Bernard Worlfsdorf adds: “There are more than enough petitions in the pipeline to use up the existing quota, but because USCIS and DOS have been slower in processing, the Final Action Date has not been established.”
A backlog can also affect concurrent filing, a popular pathway for foreign nationals living in the U.S. under another visa to obtain the EB-5 green card. For example, concurrent filing allows H-1B visa holders to adjust their immigration status while their EB-5 petition is pending so they can work and travel while awaiting the progress of their application.
Backlogs usually occur when the fiscal year is near its end in September, and EB-5 attorneys expect the same timing for the set-aside applications.
“We do not have all the latest data on filing, but Charlie Oppenheim, WR Immigrations Director of Visa Consulting and former State Department Director of Visa Control, has indicated that a “Final Action Date for India and China EB-5 could be established by summer but could possibly be current for the remainder of the Fiscal Year 2025 (meaning until September 2025),” the EB-5 lawyer concludes.
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