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The U.S. Department of State (DOS) recently published the October 2023 visa bulletin for the start of the government’s new fiscal year (FY 2024). The October 2023 visa bulletin presents advancements in both the Final Action Dates and Dates for Filing charts for China in the EB-5 Immigrant Investor Program preference’s unreserved subcategory. Specifically, the Final Action Date for EB-5 China (unreserved) progressed from Sept. 8, 2015, to Oct. 1, 2015. Though this nearly one month advancement is relatively modest, it represents the first movement for the EB-5 category for Chinese investors since May 2023.

The October 2023 visa bulletin showcases significant advancement in the Dates for Filing chart for Chinese investors in the EB-5 category. The dates for filing for Chinese investors moved from Jan. 1, 2016, to Jan. 1, 2017. This movement is noteworthy because of USCIS’ decision to shift from using the Dates for Final Action chart in September 2023 to using the Dates for Filing chart in October 2023 to determine filing eligibility for all employment-based preference categories, including EB-5. When considering the advancements in the visa bulletin and USCIS’ shift from honoring the Final Action Dates to Dates for Filing chart, Chinese investors’ ability to file for an adjustment of status moved up by roughly 15 months, from Sept. 8, 2015, to Jan. 1, 2017.

In addition to an advancement in Chinese investors’ ability to file for an adjustment of status (i.e., their green card application), the movement in the visa bulletin allows Chinese investors with a priority date of Jan. 1, 2017, or earlier to apply for supplemental benefits along with their adjustment of status. Specifically, they can apply for a travel document (advance parole), which allows them to travel internationally and re-enter the United States as a parolee and with an Employment Authorization Document (EAD Card), which affords them valid work authorization while waiting for USCIS to process their green card application.

The U.S. Department of State (DOS) has released the monthly Visa Bulletin for October 2022 — the first month of Fiscal Year 2023. A review of the Visa Bulletin shows that the Employment Based 5th (EB-5) visa category for nationals of Mainland China has retrogressed, with cutoff date moving from Dec. 22, 2015 to March 22, 2015. Furthermore, the Visa Bulletin also shows retrogression for India-born investors, with cutoff date of Nov. 8, 2019. This applies to EB-5 investors undergoing immigrant visa processing or adjustment of status whose EB-5 petition was filed prior to the passage of the EB-5 Reform and Integrity Act of 2022.

Those investors filing EB-5 petitions under the provisions of the EB-5 Reform and Integrity Act of 2022 in reserved categories, which include visas associated with investments in rural projects, high unemployment areas, and infrastructure projects, are able to utilize the immigrant visa set-asides and are therefore not subject to retrogression.

Retrogression means that investors born in Mainland China and India with priority dates prior to the cut-off dates shown in the visa bulletin will not have their immigrant visa interviews scheduled, immigrant visa applications approved, or Applications to Adjust Status adjudicated until such time that their priority dates become current again based on the DOS Visa Bulletin’s Chart A Final Action Dates.

U.S. Citizenship and Immigration Services (USCIS) has not yet announced whether those filing for Adjustment of Status in the United States in the month of October will be able to take advantage of Chart B Dates for Filing. Should USCIS allow this, India-born investors with priority dates prior to Dec. 8, 2019 and Mainland-China-born investors with priority dates prior to Jan. 1, 2016, will still be able to file Applications to Adjust Status, though they will not be adjudicated until visas become available per Chart A Final Action Date, subject to USCIS processing times. If USCIS instructs that any Adjustment of Status filings must be undertaken based on Chart A Final Action Dates, those Mainland-China- and India-born investors in the United States in valid nonimmigrant status will remain unable to file their Applications to Adjust Status subject to the Final Action Date cutoffs outlined above.

In addition to potential delays in obtaining a green card, EB-5 investors should also be aware that retrogression may impact their child’s ability to obtain a derivative green card. A child is only eligible to become a permanent resident as a derivative of the primary investor if the child is under the age of 21. The Child Status Protection Act (CSPA) provides some protection for dependent children while the I-526 petition is pending but may not protect a child from “ageing-out” as a result of a lengthy delay in obtaining a visa number.

* Special thanks to Jessica DeNisi for her valuable contributions to this GT blog post.

On Feb. 7, 2020, the official visa information website of the U.S. mission in China (http://cdn.ustraveldocs.com/cn/index.html?firstTime=No) announced that as of Feb. 3, 2020, regular visa services at the U.S. Embassy in Beijing and Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang are all suspended. The notice further states that the U.S. Embassy and Consulates in China have very limited staffing and may be unable to respond to requests regarding regular visa services. Limited emergency appointments may be available to individuals who have urgent travel needs, and qualify for an exemption under the February 2 Presidential Proclamation on Coronavirus (i.e., lawful permanent residents; spouses and children (unmarried and under age of 21) of U.S. citizens or permanent residents; parents or legal guardians of U.S. citizens or permanent residents, provided the U.S. citizens or lawful permanent residents are unmarried and under 21; siblings of U.S. citizens or lawful permanent residents, provided the U.S. citizens or lawful permanent residents are unmarried and under 21). Individuals who have urgent travel needs and qualify under the exemption of the Presidential Proclamation may go to https://ustraveldocs/com/cn/index/html to submit an emergency appointment request or contact your GT attorneys for assistance.

Pursuant to this announcement, unless indicated otherwise in further notifications, all immigrant and nonimmigrant visa appointments scheduled in the coming weeks will be cancelled. Immigrant and non-immigrant visa applicants, including EB-5 immigrant visa applicants, with scheduled interview appointments in the coming weeks should expect to receive cancellation notices shortly. Please contact your GT attorneys for questions regarding the appointment cancellation and rescheduling. Please note that given the limited staffing the U.S. Embassy and Consulates operate with, we do not expect timely responses for rescheduling requests at this time. We will monitor the situation and provide updates as they become available.

As a follow-up to our Jan. 31 blog post, we have yet to see an official announcement from the U.S. Embassy & Consulates in China regarding visa appointment cancellations for the week of Feb. 10 or later. However, this week, we began receiving non-immigrant and immigrant visa appointment cancellations for the week of Feb. 10. Likewise, the U.S. Consulate General in Guangzhou informed some EB-5 investors that “Due to the evolving situation with the novel corona virus, and the Chinese government response, the USCIS Consulate Guangzhou is cancelling immigrant visa appointments the week of February 10.” As there is no official announcement at this time, we are unable to confirm whether the cancellation of interview appointments applies to all visa appointments, immigrant and nonimmigrant, and whether this applies to all U.S. Embassy and Consulates in China. However, given the cancellation notices issued so far, and the authorization by the U.S. State Department that allowed non-emergency U.S.-government employees to evacuate China, we believe that more visa appointments are likely to be cancelled in the coming week. Please contact your GT attorney with any questions regarding interview cancellation and rescheduling. We will continue to monitor the situation and provide you with the updates as we receive them.

Additionally, on Feb. 5, USCIS published a response to the 2019 Coronavirus. According to the news alert, USCIS is temporarily closing its field offices in Bejing and Guangzhou, and will be rescheduling all affected appointments and sending new appointment notices to applicants. (Please note that USCIS field offices in China have limited jurisdictions and do not handle EB-5 and other employment-based cases, which are processed at the U.S. Embassy and Consulates in China). USCIS also suggests that those who are in the United States and are sick or start to feel symptoms of feeling sick, follow instructions to reschedule their USCIS appointments in the United States. As such, we suggest that applicants unable to attend their appointments reach out to their GT attorneys to reschedule. Finally, USCIS indicates that it may take into consideration the coronavirus, which has prevented the departure of certain nonimmigrant visa holders currently in the United States, in adjudicating their applications for extension or change of status due to the situation. For those readers who are nearing the expiration date of their I-94 but are prevented from their planned departure due to the virus, please contact your attorney should you need to file an extension of status.

On Jan. 31, the official visa information website of the U.S. mission in China posted an urgent announcement that U.S. Embassy and Consulates in China are cancelling immigrant and nonimmigrant visa appointments the week of Feb. 3. The visa information website cannot provide a specific date when routine visa services will be resumed. We expect EB-5 investors, along with all immigrant and nonimmigrant visa applicants who have been scheduled an interview in China next week to receive interview cancellation notices shortly. For those who have yet to receive cancellation notices, please do not plan on making travel arrangement to attend interviews scheduled for next week. Please contact your attorney should you have any questions regarding the interview cancellation and rescheduling. Please also refer to our previous blog post, “Important Update on Visa Rescheduling Due to the Coronavirus,” for further information. We will monitor developments and provide further updates as they become available.

2020年1月31日，美国驻华官方签证信息网站（签证预约网站）( http://cdn.ustraveldocs.com/cn/) 紧急通知2月3日-2月7日一周的移民类和非移民类签证面试将被取消。目前仍未能确定恢复签证服务的具体时间。我们预计原预定在2月3日这一周进行面试的EB-5投资人及其家属，和所有移民类或非移民类签证申请人，将很快收到驻华大使馆或领事馆的面试取消通知。对尚未收到面试取消通知的申请人，请暂时做不去参加面试的准备。如果您需要确认您的面试是否已取消以及需要重新预约面试时间，或有其他疑问，请联系您的律师。另请参阅我们之前有关的博客文章(https://www.eb5insights.com/2020/01/29/important-update-on-visa-rescheduling-due-to-the-coronavirus/ )。 我们会跟近美国大使馆和领事馆的动态，并提供进一步的更新。

The Department of State (DOS) and Mission China announced that changes have been made to consolidate the processing in China of H and L visa applications for foreign nationals seeking to work in the United States. Starting March 1, 2019, all interviews for H and L visas will be conducted only at the U.S. Embassy Beijing, U.S. Consulate General Guangzhou, and U.S. Consulate General Shanghai. The U.S. Consulate General Chengdu and U.S. Consulate General Shenyang will no longer be conducting H or L visa interviews. These changes are a result of the volume and complexity of H and L visa petitions, and will ensure adequate resources and expertise are effectively applied in reviewing the petitions.

H-1B, Specialty Occupation, is a visa that allows U.S. companies to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. Specialty occupation fields include, but are not limited to: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

L-1A, Intracompany Transferee Executive or Manager, is a visa classification that allows a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. The L-1A visa also allows a foreign company, which may not already have an affiliated U.S. office, to send an executive or manager to the U.S. with the purpose of establishing one.

L-1B, Intracompany Transferee Specialized Knowledge, allows a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interest from one of its affiliated foreign offices to one of its U.S. offices. The L-1B visa also allows a foreign company that does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States with the purpose of establishing one.

GT will continue to monitor and report on changes in consular processing that can impact the visa application process.

To read more on U.S. business immigration developments as relates to China, click here.

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On August 23rd, 2014, the U.S. Department of State made an announcement that as of that same date, immigrant visa numbers for Chinese nationals in the EB-5 category will become unavailable through September 30, 2014 which will mark the end of Fiscal Year 2014 (FY 2014).  In line with the predictions made earlier in the year by the State Department, the maximum allowed number of immigrant visa has been used by the Chinese nationals in this category.

What are immigrant visa numbers?

A specific number of immigrant (permanent) visa numbers are allotted per fiscal year in each immigrant visa category, such as EB-5, for groups of nationals of various regions around the world, such as China.  Immigrant visa numbers allow for a grant of conditional permanent residence to individuals applying for immigrant visas abroad or for adjustment of status in the U.S. based on their approved I-526 petitions.

What this means for immigrant visa applicants at U.S. consular posts:

For those investors and family members applying for their immigrant visas abroad whose immigrant visa appointment has been scheduled, the immigrant visa numbers for them have already been reserved.  Because of that, these individuals will remain unaffected by this announcement.  The cases of those investors and accompanying family members whose immigrant visa applications have not yet been scheduled for an interview by a U.S. Consular posts will not be processed and scheduled for an interview until immigrant visa numbers become available in the new fiscal year (FY 2015) which will begin on October 1, 2014.

What this means for adjustment of status applicants in the U.S.:

The U.S. Immigration Service will continue to accept applications for adjustment of status based on approved I-526 petitions.  However, instead of processing them right away, the Immigration Service will instead continue their pendency until the immigrant visa numbers become once again available in the new fiscal year (FY 2015) which will begin on October 1, 2014.

Why did the U.S. Department of State make the decision to make immigrant visa numbers unavailable for Chinese nationals in this category?

As predicted earlier in the year by the U.S. Department of State, the portion of the approximately 10,000 of total immigrant visa numbers in the EB-5 visa category which is allotted to the Chinese nationals for this fiscal year has been used.  Because this was the entirety of the immigrant visa numbers available for Chinese nationals in this category until the end of this fiscal year, new immigrant visa numbers will not become available until the beginning of the next fiscal year on October 1, 2014.

In doing this, the U.S. State Department is working to manage the availability of immigrant visa numbers to applicants in the upcoming fiscal year.  As FY 2015 begins in just over one month, this unavailability is not expected to last long.

Will this affect the adjudication of I-526 petitions?

This development will have no affect on the adjudication of I-526 petitions by U.S. Immigration Service.  This process will continue in line with the current processing times.

Please contact your GT attorney with any questions regarding this announcement by the U.S. Department of State.

Based upon the demand for EB-5 visa numbers and the volume of approved I-526 Petitions, the Department of State has issued a preliminary warning that a cut-off date may need to be established for China. No other countries in the EB-5 category will be impacted. If a cut-off date is established, it will not take effect until sometime after July 2014. This will only affect those born in mainland China and does not apply to those born in Hong Kong, Macau or Taiwan.

Despite this preliminary warning, EB-5 investors should think hard before delaying the filing of an I-526 Petition or taking any other actions directly related to the possibility of EB-5 retrogression in China. In December 2012 the Department of State also predicted the establishment of a cut-off for China, but then reversed itself in February 2013. New EB-5 visas will become available on the first day of the next fiscal year, October 1, 2014, and the extremely slow processing of I-526 Petitions could spread the demand for EB-5 visas into the next fiscal year. It is important to note, the slow I-526 Petition processing times has also impaired the ability of the Department of State to predict whether EB-5 visa retrogression will occur.

On the flip side, if U.S. Citizenship & Immigration Services (USCIS) speeds up I-526 processing the possibility of EB-5 visa retrogression will increase. As we have noted before, whether or not EB-5 visa retrogression takes place will have no effect on the processing of I-526 Petitions by USCIS. If the EB-5 visa does retrogress, it will likely delay individuals with approved I-526 Petitions from entering the U.S. and obtaining conditional permanent residency. This also may affect the way jobs are allocated to those EB-5 investors in the regional center context. Furthermore, once an I-526 Petition is approved, a child who is a derivative beneficiary of that I-526 Petition does not receive protection under the Child Status Protection Act. This could result in some children of EB-5 investors “aging out” if an I-526 Petition is approved but there are no EB-5 visas available.

In the regional center context, EB-5 visa retrogression may affect EB-5 investors from other countries. Some regional center projects involve loans which cannot be paid off until each EB-5 investor in that project has had their respective I-829 Petition adjudicated. Similarly, many new commercial enterprises in the regional center context have clauses in their operating agreements which prevent distributions from occurring until every EB-5 investor in that new commercial enterprise has had their respective I-829 Petition adjudicated.

This is not an exhaustive list of consequences and each EB-5 investor’s situation is unique. Contact Greenberg Traurig’s EB-5 team for further information.

Overview of the Recent FAM Update

On June 10, 2025, the U.S. Department of State (DOS) updated the Foreign Affairs Manual (FAM), removing the “nonmeaningful membership” exception for inadmissibility based on membership in communist or other totalitarian parties. This significant revision may impact how the DOS adjudicates immigrant visa applications.

What Is Totalitarian Party Inadmissibility?

The term “totalitarian party inadmissibility” refers to a provision in U.S. immigration law that makes individuals ineligible for certain immigration benefits—such as U.S. legal permanent residence—if they are or have been members of a communist or other totalitarian party, whether foreign or domestic. This ground of inadmissibility is codified in Section 212(a)(3)(D) of the Immigration and Nationality Act (INA) and applies to both current and past membership or affiliation. This policy is enforced in adjustment of status (Form I-485) and immigrant visa (Form DS-260) applications as part of broader national security measures.

How Prior FAM Guidance Addressed Party Membership

Previously, when determining inadmissibility, the DOS first would assess whether an organization was affiliated with a communist or other totalitarian party. If so, the DOS would evaluate whether the applicant’s connection to the organization constituted membership or affiliation. If membership was established, the DOS analyzed whether it was “meaningful,” as outlined by U.S. Supreme Court precedent. In Rowoldt v. Perfetto, 355 U.S. 115, 120 (1957), the Court explained that “[t]here must be a substantial basis for finding that an alien committed himself to the Communist Party in consciousness that he was ‘joining an organization known as the Communist Party which operates as a distinct and active political organization[.]’”

Key Changes: Removal of the ‘Nonmeaningful Membership’ Exception

With the June FAM update, if an applicant’s membership or affiliation with a communist or totalitarian party was sought for economic advantage but was not strictly necessary for essentials of living, the membership may now be considered “meaningful,” making the applicant ineligible for an immigrant visa. Where the U.S. consulate or embassy abroad previously may have evaluated economic or professional convenience as part of its “meaningful” membership analysis, the updated FAM removes this as a mitigating factor.

If party membership is determined in the immigrant visa interview, limited exceptions remain under 9 FAM 302.5-6(B)(5), including involuntary membership, membership before age 16, or membership required to obtain employment, food, or other essentials.

Impact on Career-Based and Convenience Memberships

The update reflects a stricter interpretation: convenience-based or career-driven affiliations with communist or totalitarian parties will no longer exempt applicants from inadmissibility. Employment in a state-owned enterprise typically constitutes party affiliation, as state-owned enterprises, non-governmental organizations, and quasi-governmental organizations may be instruments of the party used to control civil society and to carry out party objectives. This change could increase the need for waiver applications and create additional processing delays and uncertainty for applications for those with prior communist or totalitarian party affiliations.

Expanded Inadmissibility to Socialist Party Affiliations

The June 10 update also expands inadmissibility to certain socialist parties. Parties that are socialist in name or political philosophy, or that advocate communist policies—such as the collectivization of private property—are considered affiliates of communist parties. Examples include the Socialist Unity Party of Germany, the Workers’ Party of Korea, the Korean Social Democratic Party, and the United Socialist Party of Venezuela.

Military Service and Party Affiliation

The updates address service in the armed forces of communist countries. While military service alone does not itself establish party membership or affiliation, ongoing service and promotion to higher ranks may indicate political alignment with a proscribed organization.

Passport Type as Evidence of Party Affiliation

Another new criterion is the type of passport an applicant holds. The FAM update states that “possession of a diplomatic, special, or service passport issued by a communist or communist-controlled country, or totalitarian or totalitarian-controlled country, suggests membership or affiliation with a proscribed party.”

Exceptions for Past Membership and Security Considerations

The update confirms that the exception for past membership does not apply if the applicant is determined to pose a threat to the security of the United States. Generally, relinquishing communist party membership more than five years prior to the immigrant visa application may still qualify as an exception to inadmissibility.

Countries and Applicants Most Affected

These FAM updates may significantly impact citizens of certain countries such as China, Vietnam, and Russia. Applicants who have worked in state-owned enterprises, received education in sensitive fields from party-affiliated universities, served in the military, held government positions, or traveled on government passports may be impacted by these changes. Individuals applying for immigrant visas should consult with immigration counsel regarding any present or past membership in a communist or totalitarian party.

USCIS Policy Manual Status

As of the date of this blog post, U.S. Citizenship and Immigration Services (USCIS) has not yet updated its Policy Manual (Volume 8, Part F, Chapter 3 ) to reflect this new DOS guidance regarding communist or totalitarian party membership for adjustment of status applications (Form I-485). Greenberg Traurig will continue to monitor updates from USCIS as they become available.

Communist or Totalitarian Party Membership and Naturalization Ineligibility

Membership in a communist other totalitarian party may also make a foreign national ineligible from securing U.S. citizenship through the naturalization process. However, there are certain exceptions for those whose membership in a communist or totalitarian party terminated more than 10 years prior to applying for naturalization as well as exceptions for involuntary membership, membership under the age of 16 years and membership for essentials of living. INA § 313(c), (d). 

The April 2025 Visa Bulletin shows significant retrogression of over two years for EB-5 Unreserved Final Action Dates for China and India. The final action date for India retrogressed over two years from Jan. 1, 2022, in the March bulletin to Nov. 1, 2019, in the April Bulletin. The final action date for China retrogressed approximately two and a half years from July 15, 2016, in the March bulletin to Jan. 22, 2014, in the April 2025 bulletin.  

According to the bulletin commentary section, “Increased demand and number use by applicants chargeable to China and India in the EB-5 unreserved visa categories, combined with increased demand and number use across other countries, made it necessary to retrogress the final action dates to hold number use within the maximum allowed under the FY-2025 annual limits.”

While other EB-5 unreserved categories remained current in the April 2025 bulletin, the notes indicate that may change later in the year with global retrogression forewarned. The bulletin states, “Please note that it may become necessary to establish a final action date for applicants chargeable to all other countries if demand and number use continues to increase such that this category becomes oversubscribed.”

The April 2025 Visa Bulletin does not include corresponding commentary regarding the EB-5 Set-Aside categories, which remain current at this time across all categories. However, given the limited number of set-aside visa numbers available and the possibility of future retrogression, investors should consider moving forward while these categories remain available, especially those from high-demand countries such as China and India.