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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.

As an update to our previous blog, President Biden signed a Presidential Proclamation on April 30, 2021, that will be effective May 4, 2021, at 12:01 a.m. The Proclamation will prohibit the entry of nonimmigrants and noncitizens of the U.S. into the United States, who were physically present within India during the 14-day preceding entry into the United States, unless they are exempted below. This Presidential Proclamation is a result of the determinations by the Centers for Disease Control and Prevention (CDC) and the Department of Homeland Security (DHS) that India has had a surge in COVID-19 cases that is accelerating rapidly.

Persons who will be exempt from this Presidential Proclamation will need to fall within the following classes:

  • Lawful permanent residents (LPRs) of the United States
  • Noncitizen national of the United States
  • Noncitizen who is the spouse of a U.S. citizen (USC) or LPR
  • Noncitizen who is the parent or legal guardian of a USC or LPR who is under 21
  • Noncitizen who is the sibling of a USC or LPR, if both are unmarried and under 21
  • Noncitizen who is the child, foster child, or ward of a USC or LPR, or is a prospective adoptee
  • Noncitizen traveling at the invitation of the U.S. government for a purpose related to COVID-19
  • Noncitizen traveling as a nonimmigrant crewmember
  • Noncitizens traveling for other reasons as laid out in the Proclamation for diplomatic, military, law enforcement, national security, or United Nations purposes

The Presidential Proclamation includes a provision that allows the secretary of state and the DHS secretary to lay out criteria that would set forth a national interest exception (NIE). As previous blogs have reported on applying for NIEs, it has become increasingly difficult to obtain approval.

This Presidential Proclamation will not have an end date, and will only be terminated by the president.

Beginning Tuesday, May 4, 2021, the United States may well restrict travel from India due to the unprecedented outbreak of COVID-19 cases in India. If you have employees or family members who have recently traveled to India, the following actions can be taken:

  1. If an individual has a valid U.S. visa, they should plan to return to the United States before May 4, 2021. As a reminder, all air passengers two years of age and over who are entering the United States (including U.S. citizens and Legal Permanent Residents) must present a negative COVID-19 test, taken within three (3) calendar days of departure​, or proof of recovery from the virus within the last 90 days. Individuals should also contact their airline for specific boarding requirements.
  2. If an individual does not have a valid visa to re-enter the United States, they should try to schedule or re-schedule a visa appointment right away. As of today, visa appointments through May 13, 2021, have been cancelled by U.S. consulates in India. If a desired visa appointment date is not available, applicants should continue to check the system regularly to schedule the first available date. As the situation is changing and consular appointments are limited, individuals should plan to remain in India for an undefined period of time.

Applicants should not appear at the document drop-off locations, as they will be turned away if the appointment has been cancelled.

If emergency travel to the United States is required and an individual does not have a valid visa, some consulates may be accepting emergency appointments on a limited basis.

  1. Is there a mechanism by which my child or children may continue to be eligible for immigrant visas as my dependents based on my approved I-526 petition and if so, how does it work?

Yes, the Child Status Protection Act (CSPA) was enacted in order to protect children of petitioners against lengthy petition processing times. Where its protection applies, the dependent’s age is “frozen” under that of 21, allowing the child to obtain permanent residence as a derivative beneficiary of the I-526 petition by the parent. The determination of whether or not the protection of CSPA applies is made when the petition priority date becomes current. At that time, the number of days the petition was pending is deducted from the child’s biological age. Assuming the resulting number is under 21 (even if it’s days shy), the CSPA protections apply and the child has one year to seek to acquire his or her immigrant visa.

  1. What if I have a child who may turn 21 after my I-526 petition has been approved? How do I determine whether my child can avail themselves of the protections of CSPA? If the I-526 petition is approved prior to the retrogression taking effect, the priority date of the petition will still be current. If this is the case, the child’s “CSPA age” would be under 21, and the child would have one year to seek to acquire his or her permanent resident status. The Department of State (DOS) has previously issued guidance that the following can serve to qualify as “seeking to acquire” an immigrant visa:
  • Submission of the I-485 Adjustment of Status Application (“AOS”, “adjustment of status”);
  • Submission of the DS-260;
  • Payment of the immigrant visa fee bill; Submission of a DS-230 to the NVC;
  • Submission of a Form I-824, Application for Following to Join Beneficiary, where the child is located abroad and the I-526 investor is located in the U.S.; or
  • Other Steps

It is important to remember each of those activities listed by themselves would serve to qualify under the CSPA requirements as “seeking to acquire” an immigrant visa, preserving the child’s CSPA protection. Where the petition was approved and forwarded to the National Visa Center (NVC), DOS recommends paying the visa fee bill via cashier’s check, or electronically where possible. Alternatively, case law and DOS guidance show that repeated contacts and requests to DOS, including continuing inquiries and specific expression of intent to proceed can also qualify as satisfying the requirement of “seeking to acquire.” Finally, DOS guidance states that it may be possible to satisfy the CSPA requirements even after the priority date has once again become current after the retrogression announcement.

  1. What do I do if I haven’t received a fee bill from the NVC but my I-526 Petition is approved before July 1, 2019?

If you have a dependent child who may potentially age out (those children over the age of 17 at the time of I-526 Petition approval), there may be other ways to preserve the dependent child’s age for immigration purposes, and it is advisable to contact legal counsel.

  1. What do I do if my I-526 Petition is approved after the retrogression cut-off date listed in the Visa Bulletin?

You will be subject to retrogression.  Accordingly, you must continually check the DOS visa bulletin each month to find out if your priority date is current.

  1. What do I do if I received a fee bill from NVC prior to the retrogression cut-off date but my dependents have not?

You can make a payment for you and your dependents by sending a cashier’s check via certified mail to the NVC using the case number of the principal application (the investor).

  1. If I have paid my fee bill and filed my DS-260 application, what action can I expect on July 1, 2019?

You will likely not be scheduled for an immigrant visa interview unless your priority date is prior to the cut-off date listed in the DOS visa bulletin.  You will have to continually check the DOS visa bulletin each month to find out if your priority date is current.

  1. If I reside in the U.S. in lawful status and have not yet filed my adjustment of status based on my approved I-526 Petition, can I file my adjustment of status after the retrogression cut-off date?

No. You will have to continually check the DOS’s visa bulletin each month to find out if your priority date is current and the filing of the adjustment of status application is permissible.

  1. I reside in the U.S. in lawful status and have filed my adjustment of status based on my approved I-526 Petition prior to the retrogression announcement. What is my status? Can I remain in the U.S. and work and travel? Do I have to renew my advance parole and employment authorization?

Yes, you can remain in the U.S. and continually renew your advance parole (travel permission) and employment authorization so long as your adjustment of status remains pending and no other inadmissibility issues arise.  USCIS will hold off on adjudicating the adjustment of status application until your priority date is current.

  1. Where can I check my priority date?

The DOS announces priority dates in each month’s visa bulletin on this website. Additionally, the DOS maintains a “Priority Date Checker” which is an interactive form that will automatically populate the cut-off date applicable for you.  Please note that the monthly Visa Bulletin includes two charts: Chart A provides information regarding final adjudication cut-off dates, whereas Chart B provides cut-off information for AOS filings.  The USCIS website provides monthly updates with respect to whether it is accepting filings based on Chart B.

  1. What is the estimated wait time due to retrogression?

As indicated above, the estimated wait time due to retrogression is approximately 8.4 years for Indian nationals between the time when an I-526 petition is filed and the time when an EB-5 visa becomes available, including the I-526 processing times.

  1. If I am eligible for cross-chargeability based on my spouse’s non-Indian nationality, are my children also eligible?

Yes.

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Continue to monitor our blog for updates as we receive further information from the DOS and USCIS.

For more on EB-5 and India, click here.

The July 2019 Visa Bulletin has been released, and it confirms retrogression for the EB-5 visa category for nationals of India, earlier than many in the industry had anticipated. As of July 1, 2019, only approved Indian EB-5 investors whose EB-5 petitions (I-526 forms) were filed earlier than May 1, 2017, will be able to proceed with the processing of their immigrant visa applications.

India EB-5 Retrogression

We anticipate that U.S. consular posts in India may cease scheduling interviews for investors with priority dates on or after May 1, 2017.  The U.S. Citizenship and Immigration Services (USCIS) has also announced that for July 2019, all employment-based preference filings must rely on the Final Action Dates chart in the Visa Bulletin. Therefore, we also expect that USCIS will not schedule interviews or otherwise process or approve adjustment of status applications (I-485 forms) for applicants with priority dates on or after May 1, 2017. We encourage all approved EB-5 applicants from India to file their immigrant visa and adjustment of status applications prior to July 1, 2019.

The July 2019 Visa Bulletin also notes that for the EB-5 category, it is anticipated that India and Vietnam will become subject to the same date as China for the months of August and September 2019, meaning the dates will fall back to Nov. 1, 2014, for all three countries in August and September. Then, according to Charles Oppenheimer, chief of the Department of State Visa Control and Reporting Division, the best case scenario for October 2019, when the fiscal year starts, is a Fall 2017 date for Indian nationals, while a worst case scenario would have the date progress only so far as a Summer 2017 date. Mr. Oppenheimer also posited that a “rough” estimate for EB-5 applicants whose I-526 petitions are filed after May 6, 2019, is an 8.4 year wait between the time when an I-526 petition is filed and the time when an EB-5 visa becomes available, including the now extremely lengthy processing times for adjudicating the I-526 petition.

For more on EB-5 and India, click here.

It is widely known that India has become a major EB-5 investor market in recent years, as EB-5 is becoming an increasingly popular option for Indian nationals who seek permanent residence in the United States; the fact that there has been a growing number of high-net-worth individuals in India clearly helps to stimulate this demand. Specifically, Indian investors’ share of the EB-5 investor market has grown substantially since 2014, surpassing Vietnam as the second largest EB-5 investor market in fiscal year 2017, although its total market share, five percent, remains small. Invest In The USA (IIUSA) recently published a data report, 2018 EB-5 Investor Market Analysis: India and United Arab Emirates, based on the data supplied by USCIS, Department of State, United Nations, and Capgemini. Some of the highlights from this report are summarized below, along with additional observations:

  1. Significant Increase in Number of Petitions: A total of 587 I-526 petitions were filed by Indian investors in FY2017, which is almost 600 percent of the total number of petitions filed by Indian investors in 2014. This number remains small given that a total of 12,165 I-526 petitions were filed worldwide in FY2017.
  2. Significant Increase in Number of Visa Usage: A total of 585 EB-5 visas in FY2018 were used by applicants from India, which is a 236 percent increase from FY 2017. This is the highest year-over-year growth among the top EB-5 investor markets, including China, Vietnam, South Korea, Taiwan, and Brazil. A total of 1,469 EB-5-based immigrant visas have been issued to applicants from India between FY2008 and FY2018, of which a total of 1,115 visas were issued since FY2014. This number remains small given the total number of EB-5-based visas issued each year.
  3. Significant Increase in Number of High Net Worth Individuals in India: Based on the Asian-Pacific Wealth Report 2018 by Capgemini, India’s high-net-worth-individual (HNWI) population grew by 20 percent from 2016 to approximately 263,000 in 2017, which is the highest among all Asian-Pacific countries. This is likely an important factor that contributes to the growing number of EB-5 investors from India. Despite the significant increase, the total number of HNWI in India remains small, given the large population of India.
  4. United States as the Second Most Popular Migration Destination for Indian Nationals: According to the data published by Pew Research Center, the United States is the second most popular migration destination for Indian migrants in 2017, just behind United Arab Emirates (UAE). A total of 2,310,000 Indian migrants have immigrated to the United States, which represents nearly 14 percent of the total Indian migrants in 2017.

UAE is another increasingly important EB-5 investor market with a notable number of EB-5 applicants, thanks to its international migrant population, which makes up majority of its population. The importance of this EB-5 investor market will likely be strengthened given its high percentage of migrants from India. The data published in the IIUSA report explains the reasons for recent growth of the UAE market and its potential for further growth. Firstly, there are a large number of HNWIs among the UAE population. While there was a minor decline in the absolute number of HNWI since 2014, Dubai had the world’s fourth highest inflows of HNWI in 2017, with an estimated 2,000 or more HNWIs having migrated to Dubai in that year, according to the IIUSA report, which cited Knight Frank’s Wealth Report 2017. UAE’s population is extremely international, with 88 percent originating from foreign countries. Of the total international migrants in UAE as of 2017, India, Bangladesh, Pakistan, Egypt, Philippines, and Indonesia are the countries of origin that represented most of the migrants, accounting for 84 percent of UAE’s international migrant population and nearly 74 percent of its total population. Migrants from India in particular contributed 40 percent of the total international migrant population in UAE. The data report shows that the migrants from Bangladesh, Pakistan, Egypt, Philippines, and Indonesia, the five countries that accounted for most of UAE’s migrant population behind India, represent the largest number of I-526 filings out of UAE. Given the high percentage of Indian migrants living in UAE, and a growing interest in EB-5 program among Indian investors, it is likely that there is growth potential of the EB-5 investor market in UAE and future opportunities to raise EB-5 capital in this market.

With the growing number of Indian-born EB-5 applicants in recent years, Charles Oppenheim, chief of Visa Control and Reporting Division, U.S. Department of State, indicated at an EB-5 Industry Conference on April 23, 2018, that EB-5 visa backlogs for Indian nationals will likely be introduced no later than June 2019, and likely earlier. With the introduction of the visa backlog/retrogression, Indian-born investors would face unspecified wait times (the specifics will be known once it has been published in the monthly visa bulletin) after the I-526 approval before they can proceed with the conditional green card process, through either adjustment of status within the United States or consular processing outside the United States. This would mean that the Indian investors whose I-526 approvals take place after the introduction of the visa backlog will no longer be able to proceed with their green card process immediately. For those who are currently in the United States on F-1 and H-1B visas, they will need to maintain valid status in the United States or depart from the United States while waiting on their priority date to become current. It remains to be seen how the visa backlog will affect the Indian EB-5 market.

On August 14, 2013, the Reserve Bank of India (RBI) announced a series of measures designed to stem the sharp decline in currency value as the rupee fell to an all-time closing low against the dollar. The new policies, which aim to ease pressure on the rupee and stem the flow of foreign currency outside the country, reduce the limit on overseas direct investment by Indian companies (other than oil companies with majority government ownership) from 400 percent of net worth to 100 percent. In addition, the new measures also decrease the limit on annual outbound remittances from $200,000 to $75,000 per person, a shift that may have implications for Indian EB-5 investors who must demonstrate a minimum $500,000 investment in a U.S. commercial enterprise to qualify for permanent residency under the Immigrant Investor Program. In a sign of changes yet to come, Finance Minister P. Chidambaram noted that the RBI’s “temporary” measures should not be viewed as a form of capital control and would be revisited “at an appropriate time.”

On March 8, 2024, the U.S. Department of State (DOS) published the April 2024 Visa Bulletin. The April 2024 Visa Bulletin reflects no advances in final action dates for India and China. Specifically, the priority dates are as follows:

  • EB-5 Unreserved categories (Pre-RIA):  C5, T5, I5 and R5 (cases filed prior to the EB-5 Reform and Integrity Act of 2022 enacted on March 15, 2022):
    • China: remains December 15, 2015;
    • India: remains December 1, 2020; and
    • All Other Countries, including Mexico and Philippines remain current.
  • EB-5 Rural, High Unemployment, and Infrastructure remain current for all countries.

As a background, the DOS Visa Bulletin summarizes the availability of immigrant numbers and releases Dates for Filing Applications and Final Action Dates charts monthly. U.S. Citizenship and Immigration Services (USCIS) confirms which chart applicants must use for purposes of filing their Adjustment of Status Application. For April 2024, USCIS confirmed that all employment-based preference categories must use the Final Action Dates chart.

The chart below published in the April 2024 Visa Bulletin shows the final action dates for the EB-5 employment-based cases. The priority date is the date of filing of Form I-526 and final action date noted as “C” indicates that the priority date is current, which means the immigrant visa number is available immediately. Individuals with a priority date that is before the published priority date and with the priority date indicated as “current” may file an Adjustment of Status application.

EB-5 Update Graph

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.