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As the 2024 federal fiscal year concludes, the U.S. Department of State (DOS) has released its highly anticipated October 2024 visa bulletin, ushering in the start of federal fiscal year 2025 and, with it, new immigrant visa numbers. For intending immigrants with backlogged priority dates, the annual influx of new immigrant visa numbers often offers at least some advancement in government processing or, ideally, the opportunity to become “current” for immigrant visa or green card processing. 

Digging deeper into the fifth preference (EB-5) categories, as anticipated in our July 2024 post, EB-5 immigrant visas remain available worldwide in the set-aside categories created under the EB-5 Reform and Integrity Act (RIA) of 2022. To recap briefly, of the 10,000 EB-5 visas available for issuance annually, the RIA created the following visa “set asides:”

  • 20% are reserved for qualified immigrants who invest in a rural area;
  • 10% are reserved for qualified immigrants who invest in a “targeted employment area” (TEA), which meets the requirements that apply to areas of high unemployment (unemployment rate of at least 150% of the U.S. national average); and
  • 2% are reserved for qualified immigrants who invest in infrastructure projects.

Immigrant visas based on approved I-526E Petitions that meet the requirements for the above set-aside categories remain “current” for processing, regardless of the applicant’s country of birth. This also means that EB-5 applicants in the U.S. with a pending or approved I-526E Petition based on an investment in the set-aside categories may concurrently file for adjustment of status (AOS) and related work and travel permits (“EAD/AP”). Likewise, for set-aside EB-5 applicants awaiting processing abroad, continued availability of immigrant visas keeps the path to visa issuance clear. Accordingly, applicants can obtain their visas after satisfying the National Visa Center’s documentary and eligibility requirements and completing the immigrant visa interview.

For EB-5 applicants qualifying based on pre-RIA or “unreserved” immigrant visa petitions (i.e. not eligible for the above set-aside categories), the visa bulletin similarly remains current for applicants born in most countries. The persistent exception is for applicants born in mainland China or India and applying based on an EB-5 investment in the unreserved category (as noted above, set-aside investments remain current worldwide, including for applicants born in China or India). Applicants born in mainland China or India remain backlogged due to demand outpacing the available supply. The visa bulletin displayed considerable progression in these categories under Chart A, or dates “for final action” (i.e. eligible for immigrant visa issuance by DOS once all requirements met):

  • EB-5 China, Unreserved: advances 7 months, to 15 July 2016
  • EB-5 India, Unreserved: advances 13 months, to 1 January 2022

The advancements reported under Chart A, however, are somewhat tempered by Chart B.  Specifically, Chart B reports stagnation or retrogression in connection with the government’s dates “for filing” for applicants born in mainland China or India. Briefly, the dates for filing chart reflects priority dates eligible for filing of Form I-485 in the United States, depending on government determination as to whether to utilize this chart, which is announced monthly, shortly after visa bulletin release. The specific updates in these categories under Chart B include:

  • EB-5 China, Unreserved: retrogresses 3 months, to 1 October 2016
  • EB-5 India, Unreserved: no movement, remains at 1 April 2022

Because the USCIS will rely on Chart B in October 2024, the lack of advancement in the EB-5 categories above means that many applicants may still be unable to progress to the next step of their green card process, including filing Form I-485, despite the promise of a new federal fiscal year. That said, applicants should keep in mind that transitioning into a new fiscal year often requires DOS to adjust available immigrant visas based on over-subscription that may have occurred at the end of the preceding year, when most immigrant visa numbers exhaust availability worldwide.  

Key takeaways for EB-5 investors from the October 2024 visa bulletin:

  • As was the case in our July update, a record number of EB-5 visas are available to applicants in both the high unemployment and rural area set-aside categories at the outset of FY 2025, regardless of country of birth.
  • Applicants eligible under the RIA set-aside categories may, regardless of country of birth, continue to concurrently file I-526E petitions and AOS applications in October 2024.

For unreserved EB-5 investors born in mainland China or India, while the October 2024 visa bulletin displays stagnation or retrogression in Chart B, the advancements in Chart A offer some hints of future progression. Importantly, unreserved EB-5 immigrant visa processing can continue at consulates worldwide beginning October 1, 2024.

By statute, the Office of the Citizenship and Immigration Services Ombudsman submits an Annual Report to Congress by June 30 of each year. The Office of the Ombudsman’s Annual Report provides a summary of the most pervasive and serious problems encountered by individuals and employers applying for immigration benefits with U.S. Citizenship and Immigration Services (USCIS) and reviews past recommendations to improve USCIS programs and services.

The Office of the Ombudsman’s 2021 Annual Report details that the pandemic compounded USCIS’ already-strained processing and fiscal situation, with the agency now experiencing backlogs of applications and petitions “at record levels,” as well as drastically reduced “customer service functions.” The aforementioned is in most part due to temporary office closures, reduced staffing, and lack of end-to-end electronic processing capabilities for many benefit types. Near-total shutdown of the agency’s offices in March 2020 also significantly affected already-low receipts and fee revenue insufficient to cover operating costs and led to mass cancellation of in-person interviews, biometrics appointments, and oath ceremonies.

The Office of the Ombudsman’s 2021 Annual Report details that USCIS field offices were only gradually reopened at limited capacity—with reduced services and fewer staff—starting in June 2020. All USCIS field offices were open by October 2020 but were offering services at only about 50% capacity at that time. As a result, backlogs and processing times grew substantially throughout 2020. Due to temporary office closures and reduced staffing, USCIS cancelled roughly 280,000 interviews at the start of the pandemic. But the agency lacked the staff to reschedule all of these interviews in a timely fashion because, even after reopening, application support centers were operating at 65% or 70% capacity at best. According to USCIS statistics, approximately seven million applications and petitions were pending as of March 31, 2021. Additionally, the report states that the agency’s backlog was significantly exacerbated for two reasons: first, applicants and petitioners rushed to file before a proposed fee increase was due to take effect Oct. 2, 2020 (although the increase was never actually implemented); and second, after the new fiscal year began on Oct. 1, 2020, thousands of applicants filed all at once when their priority dates became current. Since USCIS offices were still operating at reduced staffing levels during October 2020, there were not enough personnel to process all the new applications and petitions.

The Office of the Ombudsman’s 2021 Annual Report makes a number of recommendations as to how the agency can best work through its backlog, first recommending that the agency not rely entirely on fees to fund its operations, as fees are inherently unpredictable. The report recommends some combination of fee revenue and congressionally appropriated funding to enable the agency to effectively improve operational deficiencies. The Biden administration agrees that USCIS requires additional funding, and President Biden’s first budget allotted $350 million to USCIS for backlog reduction purposes. On June 30, 2021, the House Appropriations Committee approved the fiscal year 2022 Homeland Security funding bill, which included $474.5 million for USCIS, an increase of $346.7 million above the fiscal year 2021 enacted level. However, until this bill is passed, USCIS may struggle to resolve its backlogs and processing time delays. The Office of the Ombudsman’s 2021 Annual Report also details that USCIS has made strides in expanding online filing and digital adjudications, but its goal of an end-to-end electronic strategy has yet to be fully achieved.

The State Department recently published the July 2021 Visa Bulletin. In the July 2021 Visa Bulletin, the final action priority date for EB-5 Vietnam moved forward significantly to April 1, 2020. This means that an EB-5 investor born in Vietnam who filed an I-526 Petition on or before March 31, 2020, may have a visa number immediately available on July 1, 2021, and can process for a conditional green card upon I-526 Petition approval. This significant advance will make the majority of all pending and approved I-526 petitions for investors born in Vietnam “current,” meaning there is no visa backlog.

July 2021 Visa Bulletin

Importantly, the EB-5 Regional Center program is set to expire on June 30, 2021, and therefore the “5th Regional Center (I5 and R5) currently says “U” for unavailable.  Division O, Title 1, Section 104 of the Consolidated Appropriations Act, 2021 extended the Regional Center program until June 30, 2021. The Visa Bulletin states that EB-5 immigrant visas based on an approved I-526 Petition affiliated with a regional center may be issued until close of business on June 30, 2021, and may be issued for the full validity period. No EB-5 immigrant visas may be issued overseas, or final action taken on adjustment of status cases, after June 30, 2021, until the EB-5 Regional Center program is reauthorized by Congress.

On May 31, the Congressional Hispanic Caucus announced, “Following CHC Request, GAO Agrees to Open Investigation into Record-Breaking Immigration Case Backlog at USCIS,” in which Chairman Castro stated the following:

My colleagues in the Hispanic Caucus and I look forward to reviewing GAO’s findings. We must ensure that USCIS is meeting its Congressional mandate and is adjudicating cases in a timely manner.

The full text of the U.S. Government Accountability Office letter can be found here.    

There has been increased dialogue on visa backlogs in recent weeks. See USCIS Responds to Bipartisan Senate Letter Regarding Case Processing Delays and USCIS Releases 2018 Statistical Annual Report

In May, EB-5 practitioners were unpleasantly surprised by a USCIS publication of dramatically increased adjudication times for I-526 petitions from 21 to 29 months to 29 to 45.5 months

The GAO estimates it will take five months to assemble the required team to conduct the analysis. In the interim, to engage in this process, interested stakeholders can contact GAO through the team members cited in the congressional correspondence.

Please check back, as updates on this and other matters are frequently posted.

On May 6, 2019, Charles Oppenheim, chief of the U.S. State Department Visa Control and Reporting Division, presented at the IIUSA Conference in Washington, D.C. on the state of visa backlogs for EB-5 immigrant visa applicants. Mr. Oppenheim reported on a number of important issues summarized in this blog.

Between approximately Oct. 1, 2018, and April 30, 2019, a total of 5,077 EB-5 immigrant visas were issued to applicants and their dependent family members for fiscal year (FY) 2019. In general, applicants born in mainland China used less visa numbers this year than the rest of the world, while applicants born in Vietnam and India have used 10% or more EB-5 visa numbers this fiscal year as compared to the last fiscal year. There are approximately 10,000 immigrant visas available for applicants in the EB-5 category each fiscal year.

Mainland China-Born Applicants

Applicants born in Mainland China have historically used most of the EB-5 visas. As a result, China has the longest wait time for an EB-5 visa. The State Department anticipates that around 3,660 “unused” visa numbers from FY 2019 will be made available to Mainland China-born applicants with the earliest priority dates.

Moreover, the State Department does not expect significant movement in the Visa Bulletin at the start of the next fiscal year for Mainland China-born investors. Mr. Oppenheim stated that the October 2019 Visa Bulletin will advance the priority date for Mainland China-born applicants to between Oct. 8-15, 2014. For those filing an I-526 Petition today, the expected wait time could be about 16 years. However, according to Mr. Oppenheim, the wait time for applicants who filed before May 6, 2019, is expected to be less.

Vietnam-Born Applicants

Mr. Oppenheim explained that Vietnam continues to be the country with the second highest EB-5 visa demand, behind Mainland China. In FY 2018, Vietnam used 7.2% of all EB-5 visas. In FY 2019, Vietnam is expected to use 10.7% of all EB-5 visas. Additionally, Vietnamese investors tend to have more derivative beneficiaries than other countries (which include a spouse and children under 21), and therefore less visa numbers are available overall for principal applicants. The State Department expects that the October 2019 Visa Bulletin will advance the priority date for Vietnam-born applicants to between Nov. 22, 2016 to Dec. 15, 2016. For new applicants filing an I-526 Petition today, the expected wait time could be approximately seven years, but Mr. Oppenheim was clear that this length of delay does not reflect the wait time for applicants who filed before May 6, 2019.

India-Born Applicants

Mr. Oppenheim expects to institute a cutoff date in the Visa Bulletin for the first time in July 2019 for applicants born in India, although this could occur in June 2019. If so, there will likely be an alert regarding this in the June 2019 Visa Bulletin. Accordingly, EB-5 visa applicants born in India with an approved I-526 Petition should take steps to expedite their case with the National Visa Center to have an interview scheduled and a visa issued as soon as possible. Likewise, India-born EB-5 visa applicants with an approved I-526 Petition who are in the United States in valid nonimmigrant status should take immediate action to file Form I-485.

Between July and September 2019, the State Department expects to retrogress immigrant visa availability to Indian-born EB-5 investors.; it is also expected that the October 2019 Visa Bulletin will advance the priority date for India-born applicants to between Summer 2017 and Fall 2017. For new applicants filing an I-526 Petition today, the expected wait time could be up to eight years, but Mr. Oppenheim was clear that this length of delay does not reflect the wait time for applicants who filed before May 6, 2019.

Rest of the World and Additional Information

The State Department indicated that all other countries will remain current through the end of FY 2019. Mr. Oppenheim made clear that any information provided is just an estimate of the backlog wait times, which cannot and do not account for all variables. Further, the Visa Bulletin predictions do not take into account I-526 Petition withdrawals or revocations, deaths, children aging out, and many other factors, all of which result in availability of immigrant visas to EB-5 applicants. Importantly, these predictions also do not take into account any changes that could happen through statute, new regulations, or other government action.

For more on visa backlog updates, click here.

In response to a Freedom of Information Act request the American Immigrant Investor Alliance (AIIA) filed, USCIS released updated statistics on I-526 and I-526E petition receipts. This data provides insights into the demand for EB-5 visas across different targeted employment area (TEA) categories and countries of chargeability for visa backlog prediction purposes, covering the period between April 1, 2022 (the EB-5 Reform and Integrity Act of 2022 passage date), and Jan. 31, 2025.

According to the data, USCIS received a total of 9,878 I-526/I-526E petitions, categorized as follows:

  • Rural TEAs accounted for 44% of petitions, with China leading the category (2,684 petitions), followed by India (847 petitions) and the rest of the world (798 petitions).
  • High unemployment TEAs comprised 53% of petitions, with 2,380 from China, 883 from India, and 1,928 from other countries.
  • Infrastructure TEAs saw no petitions filed.
  • Other TEAs represented 4% of petitions, with 98 from China, 60 from India, and 200 from the rest of the world.

In total, China dominated the petition count with 5,162 petitions (52%), India followed with 1,790 petitions (18%), and the rest of the world accounted for 2,926 petitions (30%).

Continuing Demand for EB-5 Visas in Set-Aside Categories

The data released to AIIA continues to show strong demand in the set-aside categories. Between April 1, 2022, and Jan. 31, 2025:

  • A total of 5,191 investors filed petitions in the high unemployment area (HUA) set-aside category.
  • 4,329 investors filed petitions in the rural TEA category.

Predicting the length of a potential visa backlog in these categories is difficult, but some experts agree that each EB-5 investor has two dependents also immigrating to the United States who also get counted against the annual visa numbers available in the EB-5 categories. With only 1,000 HUA set-aside visas and 2,000 rural set-aside visas available annually, the program may face significant backlogs in these set-aside categories. However, the State Department has not yet instituted a cut-off date for visa availability in the set-aside categories, potentially because USCIS has approved an insufficient number of I-526 and I-526E petitions in each fiscal year to warrant a backlog. Unless and until USCIS speeds up the processing of I-526/I-526E Petitions associated with the set-aside categories, the State Department may not establish a cut-off date.

Shifting Trends and Country-Specific Dynamics

Country-specific demand trends remain consistent, with China, India, and Vietnam ranking as the top three countries for EB-5 petition filings. Due to country-specific visa allocation limits, investors from India and China face the longest wait times under the EB-5 program. In contrast, investors from other countries typically experience shorter wait times, which might make the program more attractive for applicants outside of mainland China and India. The newly released USCIS data underscores the continued high demand for EB-5 visas, particularly in set-aside categories, despite potential visa availability constraints. This demand, coupled with country-specific limits, continues to create challenges for investors from high-demand countries like China and India. For those considering an investment under the EB-5 program, understanding these dynamics is crucial for planning and managing expectations.

On Dec. 2, 2024, U.S. Citizenship and Immigration Services (USCIS) announced that the agency will now require, with immediate effect, the concurrent filing of Form I-693, Report of Immigration Medical Examination and Vaccination Record, with all adjustment of status applications. The updated policy represents an abrupt departure from USCIS’ prior filing requirements for adjustment of status (AOS) applicants seeking lawful permanent residence in the United States, which had permitted applicants to file their green card applications without Form I-693, deferring what can be a time-consuming component of the AOS process to a later date during the application’s pendency. With this latest policy update, AOS applicants should consider planning ahead to ensure they can timely file for their green card as soon as eligible under the Department of State’s visa bulletin.

Form I-693’s Role in the Adjustment of Status Process

Form I-693, Report of Medical Examination and Vaccination Record, documents an immigrant’s admissibility to the United States, specifically speaking to the applicant’s health-related admissibility under the Immigration and Nationality Act (INA) § 212(a)(1). The form must be completed by a USCIS-designated civil surgeon following an examination that accounts for the applicant’s medical and vaccination history and verifies that they are not subject to any of the INA’s health-related grounds of inadmissibility. The form must be signed and sealed by the civil surgeon, remaining untampered with from its execution through its delivery to USCIS as part of the AOS application process.

Prior USCIS policy limited the form’s validity to two years from the date of the civil surgeon’s signature, which often required applicants to refresh medical examinations for cases subject to 24-month+ processing times, a fairly common scenario due to backlogs in immigrant visa availability under the Department of State’s annual immigrant visa quotas. In April 2024, USCIS updated this policy significantly, providing that a Form I-693 “properly completed and signed . . . on or after Nov. 1, 2023, does not expire and can be used indefinitely as evidence to show that the applicant is not inadmissible on health-related grounds.” The new policy on I-693 validity, however, endows the reviewing USCIS officer with the “discretion to request more evidence or a new or updated Form I-693 if they have reason to believe the applicant’s medical condition has changed since the civil surgeon signed the Form I-693, or that the Form I-693 submitted does not accurately reflect the applicant’s medical condition and the applicant may be inadmissible on health-related grounds.”

USCIS’ Updated Form I-693 Policy (December 2024)

Procedurally, USCIS has long permitted applicants to file Form I-693 after filing the AOS application. The prior policy proved particularly helpful during the height of the pandemic, when unpredictable service disruptions broadly afflicted industries and supply chains. The flexibility offered by the prior USCIS policy meant that applicants could ensure that their AOS applications were timely filed with USCIS as soon as eligible under the Department of State’s visa bulletin, deferring to a later date the potentially cumbersome task of identifying the civil surgeon, scheduling the medical examination, procuring vaccination records, completing the exam, and securing the signed and sealed medical examination form. For applicants that opted to defer submission of Form I-693, USCIS would typically request the medical examination form via a request for additional evidence (RFE) and, sometimes, during the green card interview (if applicable).

Under the agency’s new policy, applicants must file Form I-693 concurrently with the underlying AOS benefit request filed via Form I-485. USCIS’ new policy leaves little room for ambiguity or flexibility: file Form I-693 along with the remaining AOS application documents, “[o]therwise, we may reject your Form I-485.” Particularly because the visa bulletin cut-off dates are updated monthly, rejection of Form I-485 could, in turn, risk missing the applicant’s filing window entirely in the event of a retrogression in immigrant visa availability.

Filing Strategies for Prospective AOS Applicants

As USCIS’ new policy on Form I-693 filing adds to the components required at time of AOS filing, applicants may take steps to have the form completed at the same time as the remaining AOS application materials. Specifically, applicants may consider taking the following actions:

  • Track down vaccination records in advance of filing. For those waiting to progress to the AOS step of the green card process (i.e., PERM pending or certified, I-140 pending, visa bulletin dates nearing, etc.), consider taking steps during the wait period to obtain vaccination records, which might be in an applicant’s home country and could take time to secure. Additionally, if vaccination records are in a language other than English, it may make sense to secure a certified translation in advance as well. This way, as soon as eligible to proceed with AOS filing, applicants will have the documents sure to be requested by the civil surgeon on hand with minimal lead time. In addition to vaccination records, retain important medical documents to provide to the civil surgeon on the day of the medical examination appointment.
  • Identify a civil surgeon in advance. The civil surgeon will provide the applicant with an understanding of the examination’s contents, as well as a copy of the completed form. As outlined above, the form itself serves as documentary evidence of the applicant’s admissibility to the United States (i.e., their eligibility to receive a green card based on the inapplicability of health-related bars to adjustment of status under the INA), so it’s important that applicants feel comfortable enough with the civil surgeon’s office to ask questions and understand the contents of the form to be filed as part of the AOS application. Particularly with the upcoming transition to an administration that may place greater emphasis on enforcement and compliance, it is critical that applicants understand the contents of their Form I-693. Applicants should consider preparing early to maximize the time available to ensure that the completed Form I-693 aligns with their understanding of their medical and vaccination history.
  • Schedule an appointment as soon as eligibility to file an AOS application is confirmed. As indicated above, expect at least one to three weeks lead time for an appointment with a civil surgeon, followed by at least one to two weeks to receive the completed signed and sealed form. As filing windows may be tight due to the risk of future visa bulletin retrogression, consider scheduling the medical examination with the civil surgeon as soon as feasible once eligible to proceed with the AOS process. Under the April 2024 indefinite validity policy, it may make sense to secure the sealed examination form in advance of becoming current for AOS filing, but even with the indefinite validity period afforded to Forms I-693 signed on or after Nov. 1, 2023, applicants should consider filing with a recently executed and sealed form.[1] Still, for some, the benefits of having a sealed medical examination ready to file once eligible may outweigh the costs of potentially having to redo the medical examination if the USCIS officer deems it necessary. 

Form I-693 is an essential component of every AOS application and, while the new USCIS policy governing the form’s filing reduces applicant flexibility in timing their medical examinations, applicants may take steps to ensure they are ready to obtain and file the I-693 when they become current for filing. 

[1] In 2018, the first Trump administration instituted a policy that increased the scope of cases that officers were directed to deny without issuance of an RFE or notice of intent to deny. If the incoming Trump administration reverts to such a deny-without-RFE policy, it may help to limit the application’s vulnerability to such denial grounds by filing with as recently dated documentation as possible.

The passage of the EB-5 Reform and Integrity Act (RIA) in 2022 resulted in the most significant changes to the EB-5 investor immigrant visa program since its establishment in 1990. Among the most notable changes implemented through the RIA was the creation of new “set aside” visa categories for EB-5 investors.  These set-aside categories allocate a certain amount of the 10,000 EB-5 immigrant visas available each year to investments in certain areas or projects, which include:

  • 20% reserved for qualified immigrants who invest in a rural area;
  • 10% reserved for qualified immigrants who invest in a ‘targeted employment area’ (TEA), which meets the requirements that apply to areas of high unemployment (unemployment rate of at least 150% of the U.S. national average); and
  • 2% reserved for qualified immigrants who invest in infrastructure projects.1

Additionally, the RIA allows for the concurrent filing of the investor immigrant visa petition on Form I-526E and adjustment of status (AOS) filing on Form I-485 for those present in the U.S.2 While certain types of EB-5 investments filed prior to the passage of the RIA remain subject to visa bulletin backlogs, which particularly impact petitioners and dependent family members born in countries with the highest demand for immigrant visas (e.g. mainland China and India), the Visa Bulletin has not yet announced a visa backlog for any of the set aside categories established by the RIA.

With the establishment of the set-aside categories, the availability of EB-5 immigrant visas is now subject to multiple factors, in addition to country of birth, under the Department of State’s Visa Bulletin, which dictates an applicant’s ability to apply for an immigrant visa or concurrent AOS (if in the U.S.) based on per-country limitations released monthly by the Department of State (DOS).3 As the visa bulletin is based on approved visa petitions and the petitioners’ countries of birth (as opposed to petitions filed with the U.S. Citizenship and Immigration Services (USCIS) and currently in process), investors understandably are faced with a level of uncertainty when strategizing the timing of their investments and associated petition filings. This is due to the uncertain nature of the continued availability of immigrant visas, which can retrogress with little notice based on the DOS’ contemporaneous issuance of immigrant visas under the EB-5 program. This post will outline data and strategies available to investors to clarify questions related to potential changes to the visa bulletin that may impact EB-5 immigrant visa availability in the coming months. As the progression of the Visa Bulletin is subject to internal data shared between USCIS and the DOS, as well as the DOS’ internal visa issuance metrics, some level of obscurity and uncertainty should be accounted for when planning for immigrant visa petition filing, but the below is meant to help address and account for these inherent uncertainties.

Background on the Visa Bulletin

In connection with the U.S. government’s policy imperative to encourage a diverse pool of immigrants to the U.S., family- and employment-based immigrant visas are subject to a specific allocation of available visas every federal fiscal year. A total of approximately 140,000 immigrant visas are available every fiscal year for employment-based immigrant visas, including the EB-1, EB-2, EB-3, EB-4, and EB-5 immigrant visa categories. Of the total of 140,000 immigrant visas available annually, approximately 10,000 are allocated to the EB-5 investor visa program, which are also subject to the below per-country visa quotas.

To that end, no one country (based on the applicant’s country of birth) can be allocated more than approximately 7.1% of all available immigrant visas.4 Importantly, the DOS recently revised its interpretation of the statutory language on the 7.1% per country limit to clarify that it applies in any preference only if a country’s use of visas exceeds 7.1% of all employment-based preferences together.5 For example, the 7.1% per country limit for Vietnam will only start in the EB-5 category if Vietnam were to reach the 7.1% limit for the overall 140,000 employment-based visas available.  In the past, investors born in Vietnam and Taiwan also have been high users of EB-5 visas; however, with this new interpretation by DOS, they will likely never be subject to a per-country limitation for EB-5 again given that these countries generally have never reached 7.1% of the overall 140,000 employment-based immigrant visas.  Thus, it is likely that these countries will not be subject to the per-country limitation again.

The above only tells part of the story on immigrant visa allocation. This is because in addition to the total of 140,000 employment-based immigrant visas allocated yearly to all countries, unused visa numbers from prior fiscal years (i.e. immigrant visas that are available to those born in under-subscribed countries, but not utilized), roll over for use by applicants of over-subscribed countries according to priority date and availability within the immigrant visa preference category.6 Moreover, unused family-based immigrant visas may also be utilized to address excess demand in employment-based categories.7 While the specific number of unused immigrant visas varies considerably year to year, there tends be some available unused family-based visa numbers from under-subscribed categories each federal fiscal year based on the most recent data made available by USCIS and DOS.8 Additionally, depending on worldwide applicant demand, including self-selection for the unreserved general pool of visas among applicants that have the option, unused immigrant visas from set-aside categories created post-RIA implementation may remain available to qualifying investors from traditionally oversubscribed countries, like China and India.

EB-5 Investor Immigrant Program Data

With the dynamic nature of the immigrant visa allocation process in mind, there is no simple, readily available formula that can help predict the numbers of EB-5 immigrant visas that may be available in a given fiscal year, nor one that can precisely predict how soon retrogression may impact the EB-5 program, particularly in connection with I-526E petitions filed by investors born in traditionally high-demand countries, like China and India. This process is made difficult because USCIS and the Immigrant Investor Program Office (IPO) have not released important statistics to the public that would allow investors to accurately predict how long of a backlog may form in the various set-aside categories.  However, we do have some data. To solve for the lack of government-released data, stakeholders have filed Freedom of Information Act (FOIA) requests that provide more nuanced data on the government’s current processing volumes.  Notably, recent data disclosures made available through FOIA requests found a significant increase in demand for the rural set-aside category, but demand remains “below the needed level to absorb the near-term annual visa supply.” The data released also showed that demand for high unemployment TEA set-aside continued to increase through the end of 2023, which may result in a backlog for that specific set-aside category.9 As expected, demand remains particularly high for immigrant applicants born in mainland China; the below chart published in connection with the data disclosed pursuant to FOIA provides further insight on the processing volumes:

Total number of I-526/I-526E filed from April 1, 2022,to November 2023, by TEA category and country of chargeability (latest stats as per AIIA FOIA data)10

ChinaIndiaTaiwanRest of WorldTotalTotal %
Rural767174181341,09332%
High unemployment9763752096252,18563%
Infrastructure0%
Multiple TEA categories735160.5%
Not TEA26216971504%
Total1,7765732338613,444100%
Total %52%17%7%25%100%

While the data above is subject to change and specifically reflects government filings through November 2023, and spanning multiple federal fiscal years (2022-23), it showed that about two times as many high unemployment set-aside I-526E Petitions were filed as compared to rural area set-aside I-526E Petitions.  However, in June 2024, USCIS also released their January to March 2024 form data, which revealed that an additional 1,810 I-526E Petitions had been filed with USCIS over that three-month period, leaving 3,672 I-526E Petitions pending as of March 31, 2024.11 

Importantly, the quarterly USCIS data shows a huge number of new I-526E Petitions were filed during Q2 of 2024.  Half of all I-526E Petitions pending as of the date of this blog were filed just in Q2 of 2024.  USCIS has not released any statistics to show the breakdown of I-526E Petitions filed in the high unemployment or rural area set aside categories.  Anecdotal evidence from stakeholders and projects seems to show a strong uptick in the demand for rural area projects, and it is possible that many of these new I-526E Petitions were for rural area set-aside visa numbers.  More data from USCIS will be required on this point to give investors a more accurate picture on visa wait times in both rural area and high unemployment set aside projects.

Moreover, the USCIS Q2 2024 data shows that the agency only completed the review of 356 I-526E Petitions this fiscal year.  The statistics do not break down completions by approvals or denials.  Given the small number of case completions during this fiscal year, no visa retrogression has been announced in the Visa Bulletin because an insufficient number of I-526E Petitions have been approved to necessitate announcement of retrogression for any country.

In fact, at a recent conference, the DOS indicated that there is a record amount of EB-5 visas available for this year and predicted again next year.  Specifically, DOS is predicting that there are more than 14,000 unreserved EB-5 visas and more than 8,000 set aside visas available in FY 2024, and DOS is predicting that there will be more than 11,000 unreserved EB-5 visas and more than 6,800 set aside visas available in FY 2025.  Together, that is more than 14,800 set aside visas over this fiscal year and next, split between rural and high unemployment according to their percentages.  This would mean there are approximately 9,800 rural visas and 4,900 high unemployment EB-5 visas available over this fiscal year and next, with additional high numbers remaining available in the unreserved EB-5 category.  Even assuming that each Petitioner also brings two dependent applicants with them to the U.S., the sheer number of EB-5 visas available in these categories over this year and next provides many immigrant visa numbers for applicants and their dependents in both set-aside categories and drastic retrogression wait times are not yet predicted.

Additionally, it is important to keep in mind that the data provided reflects raw numbers of petition filings and does not take into account potential roll overs of additional unused immigrant visas, as noted above. In addition, applicants born in under-subscribed countries, like Vietnam and Taiwan, with robust demand for EB-5 immigrant visas that may qualify for the set-aside category still have the option to choose to process under the general pool of unreserved EB-5 visa numbers, thereby freeing up additional availability under the reserved high-unemployment and rural TEA set-aside categories for individuals born in mainland China. This selection is typically made at the time that the National Visa Center (NVC) processes the immigrant visa application for applicants based outside of the U.S.

Key Takeaways

  1. There are a record number of EB-5 visas available to applicants in both the high unemployment and rural area set-aside categories in FY 2024 and FY 2025.  While stakeholders need more data from USCIS on the breakdowns of pending I-526E Petitions between the high unemployment and rural set-aside categories, there is a record number of visas available and extensive backlogs are not expected to occur like those experienced by pre-RIA I-526 Petitions.
  2. File the I-526E Petition and associated AOS applications concurrently if possible. Although visa numbers remain available in the set-aside categories even for traditionally high-demand countries, the dynamics associated with the DOS visa bulletin may result in retrogression with little notice. Filing concurrently where eligible can provide multiple benefits in the event of retrogression, including:
    • Locking in dependent child’s age under chart A or chart B of the DOS Visa Bulletin, which under the Child Status Protection Act (CSPA) allows for a tolling of age progression while the petition is in process and based on the unavailability of a visa number; and
    • Obtaining short-term U.S. immigration benefits that allow for work (employment authorization document (EAD)) and travel (advance parole (AP)) while the USICS processes the AOS filing.
  3. Individuals born in under-subscribed countries with qualifying investments in rural or high-unemployment TEAs should consider opting for processing under the general unreserved pool where possible. This would allow for use of additional reserved immigrant visas in the set-aside categories by those born in countries with higher demand for EB-5 immigrant visas, such as China and, potentially, India.
  4. Monitor visa bulletin progression and available government data. It will remain important to continue monitoring Visa Bulletin releases and planning for potential retrogression. As noted above, while the set-aside categories created under the RIA remain broadly available for immigrant visas and concurrent AOS processing, conditions may change with little notice as the government processes its backlog of filed EB-5 petitions or if USCIS speeds up its processing of I-526E Petitions.

1 INA § 203(b)(5)(B)(i)(I).

2 See INA § 245(n); 203(b)(5).

3 See U.S. Dept. of State Visa Bulletin.

4 See INA § 203(b).

5 See 88 Fed. Reg. 50, 18252 (March 28, 2023), available at: https://www.govinfo.gov/content/pkg/FR-2023-03-28/pdf/2023-06252.pdf.

6 See, e.g. “Practice Pointer: Strategic Planning in an Era of EB-5 Visa Waiting Lines,” AILA EB-5 Committee, AILA Doc. No. 18060537, June 5, 2018.

7 See, e.g., “The CIS Ombudsman’s Webinar Series: USCIS’ Backlog Reduction Efforts,” June 22, 2022.

8 See, e.g., “Employment-Based Adjustment of Status FAQs,” USCIS, May 20, 2024.

9 See “AIIA FOIA Series: Updated I-526E Inventory Statistics for 2023,” American Immigrant Investor Alliance, Feb. 29, 2024.

10 Id.

11 See USCIS Quarterly Statistics “All USCIS Application and Petition Form Types (Fiscal Year 2024, Quarter 2). 

On April 1, 2024, U.S. Citizenship and Immigration Services (USCIS) began implementing a newly overhauled fee schedule, along with substantive changes to several of its forms used to petition or apply for employment-based immigration benefits. These changes stem from the agency’s January 2024 final rule outlining the fee increases and procedural changes, which include:

  1. In a departure from the prior, simpler fee schedule, a detailed and tiered fee schedule based on various factors, including visa type, employer type, and size (number of employees).
  2. The introduction of an “asylum fee,” which now applies to most employment-based filings made on Forms I-129 or I-140 and is meant to support the agency’s efforts in improving its processing of a historic backlog of asylum applications. The asylum fee also varies depending on visa type and employer type/size, further adding to the confluence of new factors practitioners must take into account when filing a U.S. immigration benefit application or petition with USCIS.
  3. Updated filing locations and, notably, certain filings rerouted from monitored Service Centers to “Lockboxes,” which tend to take a longer time to process the filings received.
  4. New editions of many common employment-based immigration benefit forms, including Forms I-129, I-140, I-526, and I-829.

In line with the added complexity of the filing process resulting from the April 1 changes, practitioners have reported considerable delays in issuance of I-797 receipt notices, which USCIS issues to provide the petitioner/applicant and its legal representative with a case number and official confirmation of acceptance of the filing. While the specific reasons for the delays vary between cases, USCIS may need additional time to complete its intake of filings and to ensure compliance with the new requirements, given the scale of the April 1 changes. While some cases face delays, others are being “rejected” for a deficiency, sometimes resultant from erroneous observations by USCIS.

From a practical standpoint, this means that clients should be prepared for delays in receipt notice issuance, which can sometimes extend for up to and over eight weeks for certain filing types. Additionally, USCIS has generally not been responsive to inquiries placed in connection with receipt notice delays. Filers may track checks to ensure they are cashed by USCIS (an indication of case acceptance), but even filing fee check cashing has seen delays. Where available, filers may choose to submit eligible applications online for a quicker receipting process, but that may present its own set of challenges. First, only a narrow subset of forms are currently eligible for online filing. Additionally, electronic filings have only recently been implemented by USCIS and are subject to separate sets of considerations, like account access obstacles and document upload issues, among other observed, as well as unforeseeable, risks associated with the process as USCIS finetunes its electronic filing procedures and gradually expands eligible filing types.

Takeaways for Petitioners and Applicants

  1. Since some receipt notices are required for the ability to travel internationally and re-enter the United States, for instance I-751 or I-829 receipt notices, which temporarily extend conditional green card validity, it is important to take these delays into account when planning international travel. This means opting for flexible or cancelable flights or accommodations where available. As noted above, USCIS is generally not responsive to inquiries related to its receipting process and waiting for the receipt to be issued and delivered via USPS is generally the only available option.
  2. Employers filing for H-1B transfers should consider waiting for the receipt notice prior to onboarding the new employee to ensure the case is lawfully filed as of the employee’s start date.
  3. Receipts are also often utilized to demonstrate timely filing for immigration benefit extensions; filing early may help to ensure that a receipt is in hand prior to the expiration of the current I-94 or other expiring immigration benefit.

The U.S. State Department has published the March 2024 Visa Bulletin. For EB-5 cases, the Chart A priority dates for the new “set aside” visa categories of rural areas, high unemployment areas, and infrastructure projects available under the EB-5 Reform and Integrity Act (RIA) remain current for all countries. For pre-RIA I-526 Petition cases in the unreserved EB-5 category, a visa backlog under Chart A of the Visa Bulletin continues for those investors born in mainland China (with a priority date of Dec. 15, 2015) and India (with a priority date of Dec. 1, 2020). 

Importantly, the State Department previously moved forward the Chart B priority dates in the unreserved EB-5 category to Jan. 1, 2017, for mainland China and April 1, 2022, for India. U.S. Citzenship and Immigration Services (USCIS) has been allowing adjustment of status (AOS) filings on Form I-485 using Chart B of the Visa Bulletin since Oct. 1, 2023. On Feb. 12, 2024, USCIS announced that applicants filing Form I-485 in March 2024 must use Chart A of the March 2024 Visa Bulletin, and that it will not allow employment-based AOS filings using Chart B of the Visa Bulletin. As a result, EB-5 applicants born in mainland China or India and who are eligible to file an AOS based on Chart B must file Form I-485 no later than Feb. 28, 2024, to be received at USCIS by Feb. 29, 2024. It is not clear when USCIS will allow Chart B AOS filings again, as this determination is based on visa usage by the State Department and USCIS.

The State Department updates the Visa Bulletin each month, and thereafter USCIS determines whether it will allow Chart B AOS filings in the family-based and employment-based green card categories. Applicants for AOS must check the Visa Bulletin and the USCIS website each month for whether Chart B filings will be available.