Newly released EB-5 application data show that overall demand for High Unemployment Area (HUA) surpassed that of Rural, with Chinese investors leading the applications.
The data were released from a Freedom of Information Act (FOIA) request by WR Immigration law firm regarding the number of EB-5 form I-526E petitions that U.S. Citizenship and Immigration Services (USCIS) received by fiscal year according to country of birth and type of investment between 2022 and April 18, 2024.
The information updates the previous EB-5 data release obtained by the American Immigrant Investor Alliance (AIIA) earlier this year, which showed EB-5 applications filed up until October 2023. USCIS does not publicly report data about received petitions by fiscal year, beneficiary country of birth, and investment type.
The data are useful to EB-5 investors who are concerned about a potential visa backlog in the set-aside visa categories because of the high demand and the 7% “per country application limit.
The set-asides are visa categories introduced by the EB-5 Reform and Integrity Act of 2022 (RIA) in 2022. They comprise three classifications: high-unemployment areas (HUAs) in Targeted Employment Areas (TEAs), whether rural or urban; Rural TEAs; and designated infrastructure initiatives in urban or rural TEAs. Their main appeal is that they offer priority visas for foreign investors seeking U.S. green cards through the EB-5 visa program and their reserved number of visas.
The released data show that demand for EB-5 set-aside visas from countries besides China and India is still limited. Therefore, there could be “unused” visa numbers in these categories that applicants from countries that have the 7% limit, like China and India, could use. The information also shows there is a decreasing supply of set-aside visa numbers for FY 2025. Therefore, visa application and visa issue dates could remain current during the fiscal year, but if demand keeps up, concurrent filing for the EB-5 visa and adjustment of status may soon face visa availability restrictions.
EB-5 Attorney Joseph Barnett, partner at WR Immigration who led this FOIA request, explains the key points behind the released data.
What would you highlight from the released EB-5 data?
Number one is that China has the most demand for EB-5, which isn’t surprising. Number two is that demand for rural projects has crept up in FY 2024, indicating that Congress’ incentives of priority processing and more visa numbers are being pursued by EB-5 investors.
What about the “hidden backlog” and its impact on the EB-5 program?
The Visa Bulletin summarizes the availability of immigrant numbers, but it only takes into account immigrant petitions approved by USCIS. The Visa Bulletin does not take into account pending I-526Es, and the resulting demand for visa numbers – that is the invisible backlog. This new data gives prospective EB-5 investors a better understanding of that.
How was this FOIA request handled by the USCIS?
I’m pretty surprised USCIS acted so quickly on the FOIA request. Normally, EB-5 stakeholders need to litigate to get this information that USCIS should just be sharing publicly in the first place. We know they are collecting it. What purpose does it serve not to share?
Going forward, what do you expect regarding visa allocation and priority date considerations?
The biggest challenge we are seeing now is that the DOS [Department of State] is not issuing any immigrant visas to set aside visa categories, and USCIS is not adjudicating enough adjustment of status applications based on approved I-526Es. Another challenge is that the EB-5 Program needs to be reauthorized because FY 2027 will be here soon, and if it isn’t, I don’t think DOS has a plan on what to do with the investors “grandfathered” in per INA [Immigration and Nationality Act].
Meanwhile, AIIA is working on another FOIA request to access more information regarding I-526 applications since April.
Why doesn’t USCIS publicly display received petitions by Fiscal Year, beneficiary country of birth, and investment type?
It makes no sense to me why they don’t, but the rollout of RIA has been underwhelming, and it’s probably something they didn’t think about. The difference between this data and the publicly reported data is that the I-526Es filed are broken down by country and by visa category.
We are hopeful that when NVC [National Visa Center] releases its annual “As of Nov. 1” [Annual Report of Immigrant Visa Applicants in the Family-sponsored and Employment-based preferences Registered at the National Visa Center], it will also have the reserved visas broken down.
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