The Department of State (DOS) issues a monthly Visa Bulletin, a resource that provides vital information on the availability of immigrant visa numbers for various immigration categories, including the employment-based EB-5 investor visa.
This bulletin is important for EB-5 investors, as it directly impacts their visa application process. It outlines the specific periods when EB-5 investors can apply for their green cards.
Why are the EB-5 application dates in the Visa Bulletin significant?
Understanding the Visa Bulletin requires understanding the difference between two key times of any EB-5 visa application: the filing date and the final action date.
EB-5 attorneys closely monitor these periods to guide their clients through the immigration process. According to Bernard Wolfsdorf, a U.S. immigration attorney and a managing partner at WR Immigration, “the best way is to watch for movement in the visa bulletin in each category to see how much it moves each month when published shortly before the middle of each month.”
Dennis Tristani, managing attorney at Tristani Law, LLC, adds: “I review the monthly Visa Bulletin immediately upon release to identify changes in priority dates and availability of visas.”
The filing date indicates when applicants can assemble and submit their EB-5 forms and documentation to the National Visa Center (NVC) for processing. This date applies to individual form applications and concurrent filing, which involves submitting joint forms to expedite the process. They are located in Chart B. They also help prepare for the final green card visa interview at a consulate abroad.
Meanwhile, the final action date determines when an EB-5 immigrant visa is available to be issued to investors that already initiated their applications. They are found in Chart A. These dates are critical for determining when applicants can receive their immigrant visas and become permanent residents of the United States, as they determine when the EB-5 investor can file the adjustment of status form I-485.
“The Visa Bulletin will often have detailed note sections, which will have important information and updates concerning future visa availability. Attorneys should pay particular attention to this information as it will often confirm the issuance of future cut-off dates months in advance”, Tristani says.
Filing and final action dates are not the same as the priority date. The latter is when an EB-5 application is properly filed with the U.S. Citizenship and Immigration Services (USCIS) or through a U.S. embassy or consulate. This date establishes an investor’s place in the queue to receive an immigrant visa and guides EB-5 attorneys in assessing their clients’ next steps and eligibility.
“I inform my clients about any significant changes that affect their pending or future applications, such as priority date movement or changes in country-specific quotas,” the EB-5 attorney adds.
These three dates are interconnected in the EB-5 application process. For example, if investors’ priority dates are earlier than the filing date, it means that their petition is currently being processed, and they are eligible to proceed with the adjustment of status (if in the U.S.) or consular processing (if outside the U.S.) to obtain a green card.
“This information should be used to advise clients on expected wait times and possible strategic plans to prepare for adjustment of status – this is particularly important for families with older children who could potentially age out,” the EB-5 attorney says.
The relevance of the Visa Bulletin for Chinese and Indian EB-5 investors
If a specific calendar day is stated in Chart A or B for a particular country or EB-5 visa type, then investors are not eligible to move forward with their visa application process or receive their immigrant visa if their priority dates are after the filing or final action date.
For example, in the June Visa Bulletin, final action and filing dates for the EB-5 visa remained current for nationals from all countries and set-aside categories except for Indian and Mainland Chinese investors in the Unreserved category.
For Indian and Chinese EB-5 investors in the Unreserved category, the final action dates are Dec. 1, 2020, and Dec. 15, 2015, respectively, while the filing dates are Apr. 1, 2022, and Jan. 1, 2017, respectively.
So, if a Chinese applicant files their application now for an unreserved EB-5 visa, their priority date will be later than the filing date of Jan. 1, 2017, and the final action date of Dec. 15. This may lead to delays and complications in their application, affecting their position in the processing queue and potentially requiring a significant waiting period for visas to become available.
As for the availability of visas for Chinese and Indian investors having filed before the Visa Bulletin dates, Tristani signals a positive outlook from an industry event.
“ At the event, Michael Hanley from the U.S. [DOS] shared the latest data on EB-5 visa availability and waitlists. He specifically confirmed that [DOS] is confident that all available visa numbers under the Unreserved category will be used in FY2024 for backlog reduction, and set-aside EB-5 visas will start to be issued in the coming months. He also confirmed that he did not expect a cut-off date to be imposed for set-aside categories in FY 2025. This is particularly good news for potential EB-5 investors from India and China as it keeps the concurrent adjustment of the status filing window open for the foreseeable future.”
Other applications of the Visa Bulletin for EB-5
Besides form submission and visa availability, the information provided in the Visa Bulletin also impacts other EB-5 processes. For instance, these dates are crucial in determining a child’s eligibility to immigrate with their parents if they are close to turning 21.
“For child age outs, it gets more complicated, but basically, there are two ways to freeze the child’s age. The best way is to file an adjustment of status application under Chart A, USCIS appears to accept a Chart B application for adjustment as freezing the child’s age. To freeze the age via consular processing, one has to submit the DS-260 forms and pay the government filing fees. Also, the applicant can deduct the time the petition was pending up to the time of adjudication of the petition,” Worlsdorf explains.
He also cautions that EB-5 attorneys can estimate to certain level backlogs or delays in processing times with Visa Bulletin information “when the data is available but only when accurate data is provided, because it’s impossible to accurately predict denial rates, the number of withdrawals, or the number of abandonments, as well as the number of divorces, deaths, etc. that can impact waiting lines.”
In addition, at any moment in a fiscal year, the USCIS may determine that there are more EB.5 immigrant visas available than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin. Usually, Chart B is open for adjustment filings in October and November and often for at least the first quarter of each fiscal year starting in October of each year.
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