The Department of State (DOS) has concluded the year by indicating a potential backlog of EB-5 visa applications in 2025, according to the recently released Visa Bulletin for January.
The move follows an increase in I-526E petition approvals as more people are processing their applications to completion in the EB-5 set-aside categories.
“It may become necessary to establish Dates for Filing and Final Action Dates during the fiscal year to ensure that issuances in these categories do not exceed annual limits,” said the government agency in the visa bulletin. “This situation will be continually monitored, and any necessary adjustments will be made accordingly.”
The I-526E applications are submitted by foreign investors through investments in a regional center. The set-aside categories include Rural Areas, High-Unemployment Areas (HUA), and Infrastructure, which were introduced by the EB-5 Reform and Integrity Act of 2022 (RIA).
Essentially, the DOS indicates that the high demand for these categories could exceed the available supply of visas, leading to a backlog of applications awaiting processing by U.S. Citizenship and Immigration Services (USCIS).
The Visa Bulletin is a vital resource for information regarding the availability of immigrant visas. For EB-5 investor visas, the “Filing Date” is the calendar day when investors can submit EB-5-related forms to the U.S. immigration agency, while the “Final Action Date” indicates the day when the agency could issue a visa to an approved EB-5 investor.
Both dates are crucial for processing immigrant visas and adjusting status in the U.S.
Therefore, by applying specific filing and final action dates to any EB-5 set-aside categories, USCIS can effectively manage the high volume of petitions to ensure efficient processing.
Which EB-5 set aside categories will have a backlog and how will it affect investors?
Regarding the potential backlog, immigration attorneys Phuong Le and Niral Patel from KLDP LLP said: “The biggest real-world impact of a ‘backlog,’ and this is true for any of the Employment-Based categories, is that you cannot file concurrently if visas are not available,” they said. “It is important to consult with your attorney to understand the monthly visa bulletin and how both [final action date and dates for filing] operate. While the possibility of a backlog can be stressful, the key takeaway is that those interested in filing for EB-5 should consider filing sooner rather than later. Anyone who fears potential layoffs or has children closer to 21 should contact their attorney as soon as possible to discuss their options.“
The EB-5 lawyers believe the DOS’ concern about a backlog could involve two of the three EB-5 set aside categories: HUA and Rural reserved. “Most of us don’t expect any backlog for Infrastructure.”
They also recommend that “anyone who files concurrently while visas are available […] will not only receive their AP/EAD, but they can continue to extend their AP/EAD indefinitely regardless of the visa bulletin.
Despite the DOS announcement, the visa bulletin has continued the same since October. The dates for EB-5 investors outside China and India who apply under the set aside categories remain current.
The Final action date for Indian investors applying under the Unreserved category stand on Jan. 1, 2022, and the filing date on April 1, 2022. Meanwhile, the final action date for Mainland Chinese EB-5 investors is July 15, 2016, with a filing date of Oct. 1, 2016.
Unreserved includes all EB-5 applications outside of the new three set aside categories. Having current dates indicates that there are no backlogs associated with their nationalities and categories, leading to a more streamlined process for their applications.
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