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When could the EB-5 visa backlog start to impact Indian nationals?

Recently I heard a lot about the EB-5 visa backlog for Indian investors. I checked the Visa Bulletin for this month but the priority date status for Indian nationals was still current. Does this mean the backlog for Indian nationals has not started yet? Could Indian investors who submitted their application in January 2018 be impacted?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    A backlog for Indian nationals is expected to take place. If you plan to file I-526 petition it is best to file sooner rather than later. Unfortunately, the Chinese mainland-born nationals waiting line with earlier priority dates will impact other slots.

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    Hassan Elkhalil

    Immigration Attorney
    Answered on

    God knows! It is all up in the air. Processing times may change and will change. It could impact all pending and future applications but for now, you are still one of the lucky ones!

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The discussions about a "backlog" for Indian nationals are largely centered on the increasing times it now takes to get approval for I-526. It now takes approximately 20 to 24 months, but it was much shorter in the past. Presumptively, the length is likely to go higher as more petitions are filed. With regards to January 2018 filings, the impact should be negligible, if any at all, since it is well over 10 to 11 months ago.

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    Phuong Le

    Immigration Attorney
    Answered on

    There's no way to forecast with 100 percent accuracy, but based on the latest estimates that are available from the Department of State and Charlie Oppenheim (including at the recent AILA/IIUSA EB-5 Conference in Chicago), Indian nationals are anticipated to be backlogged around July/summer of 2019. Wouldn't be surprising for this estimate to fluctuate in the near future, though.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Each country only gets about 700 visas. India will hit its quota within the next few months based on past demand. Unfortunately, there are many Chinese nationals with 2014 priority dates, so once the 700 visas are used, then Indian nationals must get in line behind the Chinese with earlier numbers. Since petitions are taking at least two years to adjudicate, anticipate having to wait about another two years after approval of your petition.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    According to what I have read, the retrogression won't kick in until next year, but anyone filing on or after Oct. 31, 2018, may be affected, and possibly those who have filed earlier than that may be as well (especially if the retrogression is several years back).

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    Stephen Berman

    Immigration Attorney
    Answered on

    If the visas are current, then there is no backlog. If the country becomes backlogged, then the priority date could go back as far as needed to stay within per-country limits.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    No way to know.

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    Mark Davies

    Immigration Attorney
    Answered on

    I am currently in India working with clients who have lots of understandable questions in this area. At the current time there is no retrogression in India. That said, in a meeting attended by some of the lawyers from our firm in Chicago a few weeks ago, the U.S. government indicated that it is extremely likely that India will enter retrogression by summertime in the United States. An I-526 petition filed by an Indian applicant in January 2019 will almost certainly face retrogression (note there are some ways to be in the U.S. while your petition is processing and while you wait for retrogression delays to clear). Here is why I say “almost” certainly: As you know, the first formal step involving the U.S. government in the processing an EB-5 petition is the filing of Form I-526. Before filing Form I-526, you will have to conduct proper due diligence on relevant projects, prepare a source of funds statement and conduct FEMA planning where applicable (note we find many Indian clients are not advised properly on FEMA planning because it entails issues of Indian law). It is critical. Some firms have Indian lawyers with vast FEMA experience and others restrict their practice to U.S. immigration issues only. Retrogression adds an additional delay once Form I-526 is approved. Retrogression means that when Form I-526 is approved, the applicant will have to wait for an immigrant visa to become available. To be clear, an I-526 petition that is approved today will likely not face any retrogression delays. Retrogression delays come into play once the I-526 petition is approved. Retrogression does not delay an I-526 petition being filed or processed. The question therefore is if you file an I-526 petition, will India be in retrogression when it is approved? Full circle back to the U.S. government's recent announcement in Chicago: While in the last few weeks we have seen some I-526 regional center petitions approved within eight months, it would be a mistake to bank on an I-526 processing time that short. One to two years would be a more typical processing time. Assuming the minimum processing time we have recently experienced of eight months, it is just possible, but not probable or likely, that a case filed today will not face a retrogression delay. Were you to start work on a case today, then given the time to prepare a proper source of funds statement and conduct proper FEMA planning before Form I-526 can be filed, it is likely that your case could face retrogression delays. Cases filed in January 2018 will almost certainly face retrogression unless they are filed in a project with expedite status. But expedite projects can face different issues. Please do seek advice from a real estate finance (in addition to EB-5) lawyer before investing in any project, as the way in which some projects are secured contain distinct legal risks. Others are better structured form a legal perspective. In my experience, most, but certainly not all, EB-5 projects contain fundamental weaknesses in terms of their legal structure that investors need to be alerted to. Those issues are separate and distinct from financial issues. Make sure to ask an EB-5 lawyer whether he will be conducting a legal review as to legal issues facing the security of your capital and all relevant lending and project documents. I hope this long-worded response is of help.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    The recent projections by the DOS indicate that the EB-5 visa priority date for Indian nationals will backlog sometime in 2019. It is still unclear which priority dates will be affected by the backlog. The most recent projections indicated that Indian nationals filing in 2019 Q1 could face a visa backlog of five years.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    The rumors are that sometime in 2019, Indian citizens might face retrogression if the trend of applications do not decline. Given that you have filed your I-526 application in January 2018, if we get retrogression early next year in January 2019, of course you could be effected. Honestly, no one has a crystal ball regarding this. If the investment amount rises after the Dec. 7 deadline, that could also impact the pace of applications and retrogression might be avoided altogether.

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    Charles Foster

    Immigration Attorney
    Answered on

    The backlog for Indian nationals will almost certainly start in 2019. But your real focus should be on filing your EB-5 Form I-526 at the earliest possible date. That is one thing that you can control. Given the processing times, the backlog for Indian investors should not have any significant impact for the near future, particularly when it will take the date the petition is filed more than a year, and as long as two years, before one can be scheduled for their final interview.

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