With more than half of the 2024 fiscal year completed, U.S. immigration authorities have indicated that improvements and proactive measures have been taken to address delays in processing times for EB-5 applications and minimize date retrogression for applicants of this investor visa for the remainder of the 2024 fiscal year.
According to estimations provided by the Department of State (DOS), these developments include faster processing times, prompt applicant responses, electronic petition transmission, stable final action dates for set-aside categories, and strategic visa number allocation.
The DOS has stated that it does not expect filing or final action date retrogression for any EB-5 visa categories or applications from specific countries of origin.
Despite these efforts, some EB-5 attorneys remain cautious regarding the reach of these improvements and are aware that potential challenges and delays may arise during the remainder of the fiscal year and in 2025.
According to Joseph Barnett, partner at WR Immigration and a member of its EB-5 and business immigration practices, “the real key is for individuals and families who know they are going to do EB-5 is to do it now, while (a) the reserved visa categories remain current so they can file an adjustment of status application and (b) get your spot in the forthcoming queue by filing the Form I-526, which can only occur after an initial investment has been made.”
Guarded optimism about DOS projections for EB-5 visa
The DOS has stated that it expects all unreserved EB-5 visas to be fully used by the time the fiscal year ends on Sept. 30, suggesting high demand. Whether this demand could lead to retrogression in the future remains to be seen.
Currently, filing and final action dates for the unreserved category remain current except for Indian and Chinese EB-5 investors, who have specific calendar days for these purposes: Dec. 1, 2020, and Dec. 15, 2015, respectively, and Apr. 1, 2022, and Jan. 1, 2017, correspondingly, according to the July visa bulletin.
If a specific calendar day is assigned to a specific country or EB-5 visa type for filing or obtaining EB-5 visas, then these EB-5 investors are not eligible to move forward if they filed their applications after those days.
The DOS’s decision to keep the cut-off dates for unreserved China and Indian applications unchanged for the remainder of FY2024 does not surprise immigration attorney Charles Kuck, “when other countries are using worldwide numbers, thus reducing downflow.”
Meanwhile, for the set-aside visa categories (rural, high unemployment, or HUA, and infrastructure), the DOS has said they are maintaining their final action dates current throughout FY2024 and likely into FY2025. According to Kuck, this is “positive news” because it suggests stability in visa availability.
The U.S. immigration authorities have also stated that nearly 40,000 EB-5 applicants are registered at the National Visa Center (NVC) and are awaiting an EB-5 visa. Of these, over 330 are post-RIA investors encompassing approved set-aside petitions for rural and HUA.
As for processing times, the DOS has informed that they are becoming faster, prompted by quicker responses from applicants and faster scheduling of interviews in FY2024. Kuck explains that the upcoming presidential elections could be driving this behavior.
However, Rohit Turkhud, counsel with CSG’s Immigration Law Group, cautions that this promptness might not apply to all EB-5 applicants. “I don’t think that the scheduling of appointments in India is happening that quickly. I have clients waiting for well over a year to be scheduled.”
As to the U.S. Citizenship and Immigration Services (USCIS) and NVC transmitting information electronically for petitions, which reportedly is significantly reducing the turnaround time for inter-agency processing, Turkhud alerts that this streamlining is not taking place in the case of Indian EB-5 applications. “This is what it’s told to us. But I can tell you from personal experience that I don’t think this is correct. I don’t know if there’s a challenge in some logistics somewhere, but this is not true. I have cases approved in early 2024 that still don’t seem to have been received at the NVC. Maybe one way of validating this is for the USCIS to ‘copy’ the applicant and the attorney on the same email when they ‘electronically transmit the approval notice to the NVC. In fact, I think that would be the most efficient use of everyone’s resources and allow for transparency!” the EB-5 attorney comments.
When USCIS approves a set-aside I-526E, the approval notice indicates the petition has been approved in multiple visa categories – the specific set-aside category and unreserved. For those consular processing, DOS will require such investors to elect which category they would like to proceed with visa processing.
“What appears to be a silver lining is that DOS is allowing investors in reserved categories to elect whether they wish to be processed in the applicable reserved visa category or the unreserved category. If enough non-China-mainland and non-Indian born choose unreserved, which is current for rest of world, then there will be more reserved visa numbers available to China-mainland born and Indian reserved visa investors, which could push back the imposition of a Final Action Date in the reserved categories,” Barnett concludes.
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