How will USCIS process EB-5 applications once the visa cap is reached?

I-526 petitions will continue to be processed in the order received. The issue of whether an immigrant visa is available becomes important either at consular processing stage (if you are abroad) or adjustment of status stage (if you are in another lawful immigration status in the US). If there is a backlog in visa numbers at the time of approval of I-526, then you have to wait until the immigrant visa becomes available in EB-5 category in order to consular process or adjust status in the United States. However, there will be new visas available when the new government fiscal year starts in October.

You can still file I-526, but have to wait for a visa if there is a backlog.

Once the cap is reached, there will be a waiting list as there are in many other immigrant categories. The issue will be to plan alternative non-immigrant visas to ease the stress of the wait, where possible.

Typically when a cap is reached they will process the case and give a conditional approval pending a visa becoming available, but I have not seen any guidance on this yet.

There is a misconception about the visa cap and retrogression. The cap being reached only refers to the investors being able to apply for the conditional permanent residency visa. It does not limit or refer to the number of I-526 petitions being able to be filed. Therefore from the job creating projects viewpoint, the investor''s funds may still be able to be used with the filing of the I-526 petition - not the investor being able to be filing for the conditional permanent residency visa. Also if the visa quota has been used and the delay for applying for the conditional permanent residency visa is 14 months, then this may not be an issue if there is already a 14-month delay for the I-526 petitions to be adjudicated.

USCIS will continue to process and adjudicate I-526 petitions even if the cap is reached. I-526 petitions are processed in the order they are received. The issue will come up at the next stage, which is either adjustment of status in the United States if the person is in valid nonimmigrant status, or immigrant visa processing at a U.S. embassy or consulate abroad. The case will not be eligible for adjustment of status filing/processing or immigrant visa issuance unless and until the priority date is current and an immigrant visa number is immediately available. It is not possible to predict the waiting time. When a new visa bulletin is issued showing a processing date for EB-5 cases, it likely will include an explanation of why the date had to be instituted and the outlook for future visa number retrogression or movement in the coming months.

If the EB-5 cap is reached, the visa bulletin will publish a date to be current for EB-5. Basically, it means you can not apply for adjustment of status or an immigrant visa cannot be issued if your I-526 is not filed prior to that date. For example, if your I-526 is filed on January 02, 2015 and the visa bulletin in February 2015 states the date under EB-5 (you also need to check the country of birth) is December 02, 2014, you will have to wait for the next month visa bulletin to say whether that date will move beyond January 02, 2015. Your I-526 can always be filed at anytime. The earlier you file I-526, an earlier date of priority you will get.

They will continue to process the visa applications. The applicants cannot, however, get the visas until the numbers are current.

Visa cap has nothing to do with USCIS and I-526 adjudication by USCIS will continue as per usual even after visa cap is reached. Once the USCIS approves the I-526 and sends the file to the National Visa Center, that is when the visa cap issue will become important, as NVC will not issue the visa fee bill unless the priority date (based on I-526 receipt date) is current to start the immigrant visa application process (DS-260). Please note, however, that the EB-5 visa cap being reached this summer will be temporary as there will be new visa numbers available when the federal government''s new fiscal year starts in October.

Not exactly. I-526 petitions are only the first step in the process. Once the I-526 is approved, the petitioner (investor) only then applies for their conditional permanent residency (conditional green card). Furthermore, the visa priority date (the date on which one is eligible to apply for a visa) is based on the filing of the I-526 petition. So, if there is retrogression of about a year, and I-526 processing takes about a year, then there may be no noticeable difference in actually obtaining conditional permanent residency.