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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.

Under the EB-5 Reform and Integrity Act of 2022 (RIA), designated EB-5 regional centers must make an annual payment into the EB-5 Integrity Fund. The annual fee is $20,000 for each regional center, except for those with 20 or fewer total investors in the preceding fiscal year (Oct. 1–Sept. 30) in its new commercial enterprises, in which case the annual fee is $10,000. The Department of Homeland Security then uses the fees in the Integrity Fund to conduct audits on regional centers, site visits on EB-5 projects, and overseas investigations relating to EB-5 stakeholders and applicants abroad. 

U.S. Citizenship and Immigration Services (USCIS) published the first “Notice of EB-5 Regional Center Integrity Fund Fee” in the Federal Register March 2, 2023, for the FY 2023 Integrity Fund fee. USCIS later extended the payment window for payment of both the FY 2023 and 2024 Integrity Fund fees to Oct. 1–Oct. 31, 2023. USCIS also stated on its Integrity Fund website that the final deadline for paying both the FY 2023 and FY 2024 Integrity Fees was Dec. 30, 2023, or 90 days after the due date. USCIS warned that it would reject Integrity Fund fee payments for FY 2023 and FY 2024 received after that date, including those made in response to a Notice of Intent to Terminate.

In June and July 2024, USCIS commenced sending Notices of Intent to Terminate to designated regional centers that failed to pay the FY 2023 and FY 2024 Integrity Fund fees by Dec. 30, 2023. Litigation ensued against Department of Homeland Security because many regional centers either did not understand or did not know that both FY 2023 and FY 2024 fees were due by Dec. 30, 2023, or were misadvised that both fees were due. As of the date of this blog, it is not clear if USCIS will change its position on whether it was required to terminate regional centers that failed to pay the Integrity Fund fees for FY 2023 and FY 2024 by Dec. 30, 2023, or whether USCIS should have first imposed a reasonable penalty and notified regional centers that failed to pay, and/or whether USCIS should have used its discretion to extend due dates again following the imposition of reasonable penalties allowed by the RIA.

Importantly, each year the Integrity Fund fees are due for the upcoming fiscal year, not the past fiscal year. Starting Oct. 1, 2024, and continuing through the month of October, USCIS will collect the FY 2025 Integrity Fund fee. As outlined in the RIA, USCIS will terminate the designation of any regional center that does not pay the required fee within 90 days after the annual fee’s due date. The annual fee is payable online. Regional centers should prepare to pay the FY 2025 Integrity Fund fee once the Pay.gov portal becomes available on Oct. 1, 2024. Multiple reports leading up to the Dec. 30, 2023, deadline indicated that USCIS incorrectly processed some regional center payments. To avoid any technical issues with payment, penalties, and/or termination, regional centers should pay early and keep a clear record of the payment in case USCIS requests evidence of the payment later. Moreover, regional centers should make sure the payment is processed with their credit card company or through their bank account to avoid any issues after the payment portal closes.

Penalties for failure to pay the Integrity Fund fee include late fees and/or termination. Termination of the regional center could be damaging if the regional center has post-RIA investors. Under the RIA, investors filing Form I-526E based on investment in a new commercial enterprise must continue to be sponsored by an approved regional center. If the regional center is terminated, the new commercial enterprise must associate with a new regional center in good standing, although the RIA clarifies that the regional center need not be in the same geographic location as the original regional center. Based on the Instructions to Form I-526E, it is likely USCIS will require EB-5 investors to file an amendment to their pending or approved I-526E petition to notify USCIS of the new regional center sponsorship. This may delay the issuance of conditional green cards and result in additional fees for investors. Thus, regional centers should consider paying early and taking adequate steps to make sure their payments are timely processed by the government.

GT’s Immigration and EB-5 attorneys are on the move. We look forward to seeing clients and partners in our travels.

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The U.S. State Department and U.S. Citizenship and Immigration Services announced that they have issued all legally available visas in the unreserved EB-5 Immigrant Investor Program categories for Fiscal Year 2024. Embassies and consulates have been directed to not issue immigrant visas in these categories until the new fiscal year (FY 2025) starts on Oct. 1, 2024. 

As discussed in our recent blog post on EB-5 filing strategies, 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 categories. Of the 140,000 immigrant visas available annually, the government allocates approximately 10,000 to the EB-5 investor visa program. The visas are also subject to per-country visa quotas. The Immigration and Nationality Act sets the annual limit for EB-5 visas at 7.1% of the worldwide employment limit, of which 68% is available for unreserved visa categories (C5, T5, I5, R5, RU, NU). Additionally, the EB-5 Reform and Integrity Act of 2022 makes unused EB-5 reserved visas from FY 2022 available in the EB-5 unreserved categories for FY 2024.

On July 16, 2024, U.S. Citizenship and Immigration Services (USCIS) issued new guidance for the EB-5 Regional Center Program, detailing sanctions for noncompliance, adverse actions on EB-5 petitions, and special rules for good faith investors to maintain eligibility if their regional center or project is terminated or debarred.

On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act (RIA) into law, substantially reforming the EB-5 program. The RIA also added significant new integrity provisions, including protection for good faith investors. Now, more than two years after its passage, USCIS has updated its policy manual to include guidance addressing new provisions the RIA added to the Immigration and Nationality Act (INA), clarifying the consequences of noncompliance for regional centers, new commercial enterprises (NCEs), job creating entities (JCEs), and EB-5 investors. The new provisions update Part G, Investors, in Volume 6 of the policy manual to add provisions relating to “good faith investors” and add new authority for USCIS to sanction regional centers, new commercial enterprises, and job-creating entities at various levels for noncompliance with statutory requirements.

In particular, the new guidance clarifies the impact of USCIS terminating, debarring, or suspending noncompliant regional centers, NCEs, and JCEs, and it explains how good faith investors, including those who filed petitions prior to the RIA, may remain eligible for approval of the I-526 or I-829 petition in these scenarios. The guidance also sets forth factors and processes USCIS uses to assess sanctions and explains what constitutes fraud and material misrepresentation, deceit, criminal misuse, and threats to the national interest. The guidance further clarifies that USCIS does not sanction individuals or entities for pre-RIA actions but may still consider violations that occurred pre-RIA in determining proper sanctions for post-RIA violations.

In its Policy Manual Volume 6, Part G, Chapter 3, Section E, titled “Good Faith Investors Following Program Noncompliance by a Regional Center, New Commercial Enterprise, or Job-Creating Entity,” USCIS clarifies the actions USCIS will take if an EB-5 entity is no longer allowed to participate in the EB-5 program, such as after a regional center is terminated or an NCE or JCE is debarred. The guidance clarifies that USCIS debars individuals or entities based on noncompliance with or prohibited conduct under the RIA and does not debar individuals or entities for merely failing to establish investor eligibility for visa classification or removal of conditions, such as not creating sufficient employment, or upon receipt of requests for debarment. This means that investors cannot request a debarment to trigger the “good faith” investor protections simply where job creation is not met or where the project has failed under normal business scenarios. 

Pre-RIA Investors

Consistent with its prior guidance, USCIS confirms that if a regional center is terminated, investors who filed I-526 petitions before the RIA’s March 2022 enactment can have an I-526 petition or I-829 petition approved even if the regional center’s designation is terminated, assuming the investor otherwise meets the eligibility requirements, including sustaining the at-risk investment and creating at least 10 jobs. USCIS again confirms that direct and indirect job creation can be used to meet the requirements, even when the regional center is terminated. The policy manual explains that USCIS officers will have the discretion to make a good faith determination on a case-by-case basis to continue to approve petitions.

Where a pre-RIA investor has invested into an NCE and/or a JCE that is debarred from the EB-5 program, USCIS clarifies that the investor may seek to retain eligibility by making an investment in another new commercial enterprise. In the policy manual update, USCIS states that if a pre-RIA investor chooses to make a qualifying investment in another NCE following regional center termination, the investment amount required is the amount required by statute at the time the investor initially filed the Form I-526. As of the date of this blog, it is not clear if any “good faith” pre-RIA investors have successfully filed a new I-526 petition on this basis, or made a new $500,000 investment into a new NCE to continue to qualify for permanent residence after a regional center is terminated or after an NCE or JCE debarment, even though the required investment amount has increased under the RIA. Further engagement and clarification are required by USCIS on this point.

RIA Investors

The policy manual update confirms that when USCIS terminates a regional center that is sponsoring RIA investors who filed Form I-526E after March 2022, the investor’s NCE may associate with a new regional center that is maintaining its designation in order to continue to qualify for permanent residence. That new regional center need not cover the geographic area of the EB-5 project. EB-5 stakeholders have been seeking this change for years, believing that a change of a regional center should not be considered a “material change” to the investor’s petition. 

If an NCE or JCE is debarred for an RIA investor, the investor may retain eligibility if they associate with an NCE in good standing and, pursuant to the RIA, invest additional capital “solely to the extent necessary to satisfy remaining job creation requirements.” Practically, it may be difficult for new EB-5 projects to take additional capital from these “good faith” investors where new NCEs are seeking to subscribe investors at the new investment amounts of $1,050,000 or $800,000 but where the good faith investor seeks to invest some lesser amount only to continue to qualify for the green card. Projects should consider if they wish to create different classes of investments for varying investment amounts to accommodate these types of investors.

Additionally, USCIS states that the investor must generally file an amendment to their petition or otherwise notify USCIS that they continue to meet applicable eligibility requirements notwithstanding termination or debarment, as applicable, no later than 180 days after notification of termination or debarment. Filing an amendment to an I-526E would be costly to an investor following the April 2024 filing fee increases, but USCIS may accept additional evidence in response to a debarment notification that would not require the investor to file an amendment or pay the fee. Until USCIS promulgates a new Form I-526E, the exact procedures to be followed in this scenario remain unclear.

Terminations, Suspensions, and Sanctions

USCIS also updated Volume 6, Part G, Chapter 4, Section H, “Terminations, Suspensions, and Other Sanctions,” which specifies violations permitting various sanctions for bad faith actions by regional centers, ranging from fines to suspension or termination in more serious cases. This update exemplifies USCIS’s continued efforts to crack down on regional centers engaging in activities that may undermine the integrity of the EB-5 program. USCIS may sanction regional centers not only for bad faith actions but also for possessing knowledge of bad faith or fraudulent actions. Given this threshold, the sanctions set forth in the policy manual encourage regional centers to conduct thorough due diligence and enforce close oversight of project operations to minimize the likelihood and severity of penalty for violations.

The policy manual further provides examples of sanctionable violations as an added warning and clarification to EB-5 participants. The policy update emphasizes that regional centers have a responsibility to take reasonable action to avoid violation of law, even if a regional center, commercial enterprise, or JCE is new. Inexperience in the EB-5 domain does not excuse actions that violate the law, nor does it excuse partnering with entities whose activities could be considered bad faith. This further confirms USCIS’s emphasis on the need for EB-5 program participants to perform necessary due diligence and maintenance activities to ensure compliance at all times.

The policy manual reiterates USCIS authority to levy sanctions for noncompliance by various EB-5 program participants, including measures like suspension, debarment, and termination. The new chapter provides a thorough breakdown of USCIS’s general process when it determines that a violation has occurred warranting suspension, debarment, or termination. This not only allows EB-5 participants to hold USCIS accountable to the process it has laid out in the future but also provides EB-5 participants with improved insight into next steps once a notice of intent to sanction is issued.

The policy manual is instructive of the types of actions that may be sanctioned as involving fraud, deceit, material misrepresentation, or criminal misuse, providing specific examples of actions falling under these categories. These examples intend to clearly outline actions that are sanctionable to discourage bad faith actions on the part of EB-5 participants as well as to educate individuals or entities who may be unfamiliar with the EB-5 program. USCIS’s policy update emphasizes the seriousness of intentional bad acts and warns of the ramifications for such actions. Regional centers, commercial enterprises, job creating entities, and investors should oversee their operations carefully to ensure compliance with USCIS’s updated policies and be mindful of who they are partnering with throughout the EB-5 process to avoid penalty.

GT Immigration & Compliance Practice Shareholder Jennifer Hermansky, the newly appointed EB-5 Committee chair for the American Immigration Lawyers Association, is featured on the EB5Investors.com blog. She discusses the challenges and trends in the EB-5 visa landscape, particularly the impact of the Reform and Integrity Act of 2022 and the re-adjudication of the source of funds and other program requirements.

Click here to read the interview, published by EB5Investors.com July 10, 2024.

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 9, U.S. Citizenship and Immigration Services introduced audit guidelines for EB-5 regional centers as part of the EB-5 Reform and Integrity Act. Prior to the RIA passage in 2022, USCIS infrequently conducted audits of regional centers, and there was no published guidance, or statutory or regulatory consequences for a regional center’s failure to comply with an audit.

The RIA now requires USCIS to audit regional centers every five years to verify compliance with immigration and securities laws, and the flow of the EB-5 funds into the projects sponsored by the regional center.

Continue reading the full article, published by Law360 May 3, 2024. Reprinted with permission.

The first stop on GT’s four-city tour hosted by Kate Kalmykov and EB5AN will take place in Miami on Thursday, April 25 at 10 a.m. ET. The tour will continue in the following cities:

  • GT Los Angeles – Tuesday, April 30, 10:00 a.m. – 2:00 p.m. PT
  • GT New York – Thursday, May 9, 10:00 a.m. – 2:00 p.m. ET
  • GT Atlanta – Tuesday, May 14, 10:00 a.m. – 2:00 p.m. ET

During each session, attorneys and regional center executives will discuss the status of the EB-5 program nearly two years after the EB-5 Reform and Integrity Act of 2022 (RIA). Panelists will share key insights for EB-5 developers and sponsors looking to structure new projects, immigration and securities concerns related to raising EB-5 capital, strategies for fixing “problem” EB-5 projects, and a framework for foreign nationals considering seeking permanent residency through the EB-5 program. Panelists at each event will also discuss current events and information about the EB-5 program, and each session will feature a Q&A for attendees to interact directly with panelists. Click here for more details on each stop of the tour.

Click here to register for any of the seminars.

U.S. Citizenship and Immigration Services (USCIS) has announced new provisions regarding EB-5 regional center audits in accordance with the EB-5 Reform and Integrity Act of 2022. Each designated regional center will be audited at least once every five years, and audits will review documentation required to be maintained by the regional center and the flow of immigrant investor capital into capital investment projects. Audits aim to enhance the integrity of the EB-5 program by verifying information in regional center applications, annual certifications, and associated investor petitions.

During site visits for audits, if a regional center representative refuses to participate, the visit will be canceled and the audit report will be completed using available data, noting the cancellation at the request of the regional center. Regional centers that refuse consent or obstruct audits may have their designation terminated.

However, there are generally no immediate adverse consequences for EB-5 associated entities or petitioners solely based on a negative audit result, except in cases of deliberate noncompliance or obstruction. The findings may be used to evaluate a regional center’s eligibility to remain designated and compliance with applicable requirements.

Starting April 23, 2024, audits will adhere to Generally Accepted Government Auditing Standards to ensure uniformity. USCIS launched a new EB-5 Regional Center Audits webpage to provide information on the auditing process.