Because of the “per-country caps” imposed by current U.S. immigration law, the wait for green card sponsorship by U.S. employers is now estimated to be 7-8 years for Chinese nationals and 15-25+ years for Indians, unless they are truly extraordinary, in which case the wait is only about 5+ years. Thus, the EB-2 and EB-3 green card doors are almost at a standstill for Chinese and Indian nationals.
For students, technology and health care workers, as well as aspiring entrepreneurs seeking to escape visa lotteries or visa renewal cycles or want a backup plan in case of H-1B employer layoffs, the EB-5 investment-based visa program is often the only way to secure green cards for themselves and their family, especially for those with children approaching age-out at 21.
The “current” reserved EB-5 visa categories in the Visa Bulletin and the concurrent adjustment of status option provide a unique opportunity that could disappear before the end of 2025.
Here are the top ten questions and answers on the new reserved EB-5 visa categories that allow for concurrent filing:
What are the RIA-reserved EB-5 visa categories?
In March 2022, Congress created new reserved or “set aside” EB-5 visa categories—rural, high unemployment area, and infrastructure—to encourage investments in specific geographic areas and projects in the U.S. Projects in reserved areas qualify for the reduced $800,000 investment amount.
Did Congress increase the number of EB-5 visas?
No, the EB-5 Reform and Integrity Act of 2022 (RIA) did not increase the overall number of EB-5 visas; it only reallocates them within the EB-5 program. Rural receives 20%, high unemployment area 10%, and infrastructure 2% of all EB-5 visa numbers allocated annually through fiscal year 2027.
What are the “carryover” provisions for reserved visas?
Unused reserved visas from a fiscal year roll over to other reserved categories the following year. If not used in the next year, they become part of the unreserved category.
Are there backlogs in the reserved visas?
The Visa Bulletin shows a “Current” Final Action Date for all countries for all three reserved visa categories, but there is sufficient demand already pending at USCIS that, if all approved, could result in backlogs for Indian and Chinese nationals filing sometime in 2025. This is even mentioned as a warning in the January 2025 Visa Bulletin. In the meantime, this provides a “once in a lifetime opportunity” for most persons lawfully in the United States to file for adjustment of status and obtain the interim benefits of 5-year renewable, unrestricted work authorization and travel authority. Even if a backlog occurs, applicants can extend those interim benefits indefinitely while the application is pending.
Are there “per-country caps” on the reserved EB-5 visa categories?
Yes, each reserved EB-5 visa category is subject to the 7% “per-country cap” included in the Immigration and Nationality Act. However, reserved EB-5 visa numbers unused by the “rest of the world” can still, to a certain extent, be allocated to Indian and Chinese foreign nationals subject to the per-country cap.
Are the reserved EB-5 visas faster for Indian, Chinese, or other EB-5 investors?
Yes, they absolutely can be because Congress prioritized the processing of rural EB-5 cases in the RIA, and the USCIS followed suit. This has been particularly beneficial for Indian and Chinese nationals because it allows them to bypass the unreserved EB-5 visa backlog.
What are the downsides of reserved EB-5 visas for possible EB-5 investors?
Concerns about project feasibility, job creation, and return on investment in less-developed areas are common, and immigrant investors should speak with knowledgeable EB-5 immigration attorneys and qualified investment advisors prior to making an EB-5 investment decision.
How many reserved EB-5 visa numbers have been used to date?
Over 14,500 reserved EB-5 visa numbers were allocated and able for use in FY 2022-FY 2024. Upon information and belief, less than 10% of them have been allocated to immigrant investors who filed in rural, high Unemployment areas (HUA) or infrastructure projects since the RIA was passed.
What is the situation for FY 2025?
There is a significant supply of reserved EB-5 visa numbers that must be used (following I-526E approval and either adjustment of status or immigrant visa application approval) in FY 2025, or they will be lost to reserved EB-5 investors forever. It is imperative that USCIS process enough Forms I-526E and adjudicate enough Forms I-485 (and DOS issue immigrant visas) while the reserved EB-5 categories have high supply. If the U.S. government is unable to use all of these reserved numbers in FY 2025, it could create a significant logjam for immigrant investors currently seeking to obtain permanent residency through investments in HUAs and even rural areas and stymie future EB-5 investment.
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