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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.

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 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

On July 18, 2023, United States Citizenship and Immigration (USCIS) announced an update to the visa availability approach to managing the inventory of Form I-526, Immigrant Petition by Alien Investor, as part of an effort to improve efficiency in the processing of these petitions. The announcement comes as USCIS has been under scrutiny regarding the lengthy processing times for EB-5 cases. At the time of writing, the processing time for a Form I-526 petition filed prior to the passage of the EB-5 Reform and Integrity Act of 2022 (RIA) is at least 56.5 months for those investors not subject to a visa retrogression.

The USCIS Immigrant Investor Program Office (IPO) manages the inventory of Form I-526 petitions through workflow queues. Previously, these queues operated on a first-in, first-out basis and accounted for factors such as whether a visa was available or would be soon (i.e., whether the investor’s country of birth was subject to a visa retrogression).

Effective July 18, 2023, USCIS announced that the IPO will implement a new strategy in handling the workflow queues of Form I-526 petitions by grouping these petitions into three “queues” for adjudication. The first queue will contain Form I-526 petitions where a visa is not available and is not likely to be available soon. Presumably, this would be the longest queue and would contain those petitions subject to visa retrogression for investors born in mainland China. The second queue contains I-526 Petitions where a visa is available or will be soon available, but where the IPO has not yet reviewed the investment project materials. The third queue will contain those I-526 petitions where a visa is available or soon available and where IPO has previously reviewed the project, or the I-526 is a “direct” or non-Regional Center petition. While USCIS has not stated this explicitly, this third queue would likely receive priority over the other two queues because visas are available and the project was previously approved in other I-526 petitions; therefore, only the investor’s source of funds would need to be reviewed by the IPO adjudicator.

According to USCIS, this update will allow adjudicators to process Form I-526 petitions more efficiently as they will be handling multiple petitions associated with the same new commercial enterprise (NCE) and consequently, adjudicators will be simultaneously reviewing petitions that have overlaps in project documents and issues presented.

Importantly, this announcement from USCIS does not state that Form I-526E petitions filed under the RIA would be placed into any of these queues. It is not clear from the announcement how USCIS will process Form I-526E petitions, nor has USCIS updated its processing time website to reflect Form I-526E as a type of petition that has a posted processing time. Instead, the July 18, 2023, announcement deals only with those older pending I-526 petitions filed prior to the passage of the RIA. While this new visa availability approach should enable the IPO to increase processing efficiency, reduce the backlog and completion times for Form I-526 petitions, and support consistency and accuracy in adjudications, it is not clear how quickly this change will impact I-526 petition processing times. USCIS has not released recent statistics about the number of IPO adjudicators assigned to Form I-526 petitions, nor does this announcement commit to any specific processing times. Instead, some investors seeking to expedite the processing of their I-526 petitions have filed mandamus actions in U.S. district courts, asking the courts to intervene and order USCIS to decide the I-526 petition due to an unreasonable delay caused by the IPO.

Immigration & Compliance Practice Shareholder Nataliya Rymer is quoted in an EB-5 Investors article titled “China’s accession to Hague’s Apostille Convention expected to streamline EB-5 processing.”

Click here to read the full article, published by EB-5 Investors Magazine April 13, 2023.

On Dec. 15, 2022, Congress passed the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (the “2023 NDAA”), which contains two key changes to the eligibility for E visas:

  • First, Portugal has now been designated as a treaty country. Thus, Portuguese passport holders are eligible to obtain E-1 and E-2 visas as Treaty Trader/Treaty Investors.
  • Second, the 2023 NDAA inserted a limitation on the eligibility for an E visa by adding a new requirement that E visa applicants who have acquired citizenship of a treaty country via financial investment must have been “domiciled” in the treaty country for a “a continuous period of not less than three years at any point before applying” for the E visa. Notably, this new requirement does not apply to existing or previous E visa holders.

The purpose of this provision is to limit a pathway to U.S. residency that was previously open to individuals who applied for citizenship by investment programs in certain E visa treaty countries, primarily Grenada. In these scenarios, the individual from a non-E visa treaty country would obtain citizenship in Grenada via investment, and then use their newfound Grenadian citizenship to apply for an E visa. Thus, the value of the Grenadian passport to these individuals was the ability to obtain an E visa.

Individuals from countries where investment migration is popular, such as India and China, have long had a desire to access the United States for purposes of school, investment, or retirement, among other reasons. Because China and India are not E visa treaty countries, individuals from those countries have less options for migration to the United States, particularly if they do not have a qualifying family relative. Obtaining citizenship from a country such as Grenada became a worthwhile endeavor in order to access the United States. This was especially so because the E visa has many advantages, such as a relatively low amount of investment, the ability to include spouses and dependent children under the age of 21 with one investment, long visa validity periods, and the ability to renew the E visa indefinitely.

For some, this provision takes effect immediately. Thus, an individual who has made, or intends to make, an investment in a citizenship by investment country eligible for an E visa finds themselves newly ineligible for such E visa, unless they can show they have “…been domiciled for a continuous period of not less than three years at any point before applying for…” an E visa.

The term “domicile” is not found in the 2023 NDAA, and it is unclear how the U.S. Department of State will apply this requirement to E visa applicants. The word “domicile” under U.S. law pertaining to immigration has been subject to change and dispute over the years because the Immigration and Nationality Act (INA) does not generally define “domicile.”

In other contexts, such as the use of “domicile” under INA 213A as interpreted by the State Department (the provision of law relating to the domicile of a U.S. sponsor), “domicile” means the place where an individual has their principal residence with the intention to maintain that residence for the foreseeable future. In this context, under the Foreign Affairs Manual issued by the State Department, evidence that an individual is “domiciled” in the United States can include (i) opening a bank account; (ii) transferring funds to the United States; (iii) Making investments in the United States; (iv) Seeking employment in the United States; (v) Registering children in U.S. schools; (vi) Applying for a Social Security number; and (vii) Voting in local, State, or Federal elections.

This State Department interpretation is generally consistent with other areas of U.S. immigration law that define “domicile,” such as certain areas of law defining U.S. citizenship by adopted children[3] and residents of the Commonwealth of the Northern Mariana Islands,[4] which also generally defines “domicile” as the place where an individual maintains a residency with the intent to reside in that place for an indefinite period. These definitions are consistent with the common law interpretation of “domicile,” which also generally defines a “domicile” as a “person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.”[5]

While this is not an exhaustive review of U.S. law as it relates to the term “domicile,” it does provide a general idea of what to expect once the State Department announces guidance on this change in law. Applying this guidance to the new E visa requirement of “domicile” could entail requiring the applicant to show a residence in the treaty country, investments in the treaty country, bank accounts in the treaty country, funds in the treaty country, employment in the treaty country, participation in the treaty country elections and/or civic life, and/or, if applicable, attendance at schools in the treaty country by children of the applicant. Further, as like most areas of U.S. immigration law, this will not be a one-size-fits-all approach, and a totality of the circumstances review in the discretion of the adjudicating consular officer should be expected. Applicants interested in applying for an E visa after acquiring citizenship by investment will need to wait for the State Department to issue guidance, likely in the form of an updated Foreign Affairs Manual.

Finally, it remains to be seen whether these changes in the 2023 NDAA violate U.S. treaty obligations for E visa countries with citizenship by investment programs (e.g., Grenada, Turkey, Austria, Jordan, etc.). Generally speaking, E visa treaties require each party to permit and treat investment activities in the United States on a basis no less favorable to that accorded the other party, must provide “fair and equitable treatment” to the other party, to not impair, through unreasonable or discriminatory means, investments of a party, among other requirements.[6] Given the amount of investment seen by some of these countries solely due to the access to an E visa, and the less favorable treatment nationals of those countries will now receive, particularly in comparison to other E visa countries without citizenship by investment programs, it is conceivable these E visa countries raise a diplomatic issue with these new provisions.

[1] See 9 FAM 601.14-7(a)(1).

[2] See 9 FAM 601.14-7(a)(3)

[3] See INA 101(c) and INA 101(a)(33)

[4] See Section 1005(e) of the Covenant to Establish the Commonwealth of the Northern Mariana Islands in Political Union with the United States (Act of Mar. 24, 1976, Public Law No. 94-241, 90 Stat. 263, 48 U.S.C. 1801). See also 8 FAM 302.2-4.

[5] See Black’s Law Dictionary (11th ed. 2019). See also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) (defining “domicile” as “physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there”), cited in in the immigration context by Morel v. INS, 90 F. 3d 833 (3rd Cir., 1996).

[6] See e.g., Treaty between the Government of the United States of America and the Government of the Hashemite Kingdom of Jordan Concerning the Encouragement and Reciprocal Protection of Investment, with Annex and Protocol, signed at Amman on July 2, 1997, or The Treaty between the United States of America and Grenada concerning the Reciprocal Encouragement and Protection of Investment, signed at Washington on May 2, 1986.

The U.S. Department of State (DOS) has published the December 2022 bulletin which reflects an increased demand across multiple categories. As warned in last month’s bulletin, the December bulletin implements a world-wide cut-off for the EB-2 category.

DOS also warns in its December bulletin that due to increased demand and number use in the EB-1 category, combined with decreased visa number availability for FY-2023 in comparison to FY-2022, we may see the establishment of final action date and application date cut-offs for China and India in the coming months.

USCIS has announced that it will use the Date for Filing chart in December 2022. Within the EB-2 category, except for China and India, all countries are subject to a final action date of Nov. 1, 2022 and an application filing date of Dec. 1, 2022. EB-2 India faces a retrogression in its final action date with a cut-off of Oct. 8, 2011 and the final action date for EB-2 China remains the same as last month with a cut-off of June 8, 2019.

EB-3 final action dates and application filing dates remain current on both final action and application filing date charts for all countries except China and India, which face cut-off dates in 2018 and 2012 respectively.

EB-5 dates remain current on both charts for all classifications, with the exception of Indian- and Mainland-Chinese-born nationals associated with unreserved classifications including C5, T5, I5, and R5. These nationals face the same dates in December as those included on the November bulletin. Specifically, the application dates for Indian-born nationals in this classification is Dec. 8, 2019, while the final action date remains at Nov. 8, 2019. Mainland-Chinese-born nationals in this classification continue to face an application date of Jan. 1, 2016, while the final action date remains at March 22, 2015.

The December bulletin also identifies that preliminary consolidated number use by DOS and USCIS for all of FY-2022 shows there were approximately 57,000 unused family-sponsored visa numbers. Thus the estimated employment-based annual limit will be for FY-2023 will be 197,000.

The Department of State’s May 2021 Visa Bulletin showed limited movement for the EB-5 category and previewed what may be the state of priority dates for the EB-5 category for the remainder of the fiscal year.

As in recent months, the EB-5 priority dates for Chart A Final Action Dates remained current for investors born in all countries except Vietnam and China. Chart A Final Action Dates represent the date immigrant visas are available. Although the final action cutoff date for Vietnam advanced by two months to Feb. 15, 2018, the final action cutoff date for China saw no movement and remained at Aug. 15, 2015, where it has been since September 2020.

Furthermore, according to Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State, the Chinese EB-5 category already has over 5,000 documentarily qualified applications that are current for final action, which is more than enough to meet the visa cap for the fiscal year. As such, the final action cutoff date for the EB-5 category for China may not see any significant advancement for the remainder of the 2021 fiscal year, which could also backlog this category in the 2022 fiscal year.

USCIS announced that applicants will need to use Chart A for filing adjustment of status applications. As such, Vietnam-born investors with priority dates earlier than Feb. 15, 2018, who are in the United States in valid visa status, are now able to file adjustment of status applications, and the National Visa Center will be able to initiate the immigrant visa process for those investors with the same priority dates who reside abroad. However, as a reminder, the scheduling of immigrant visa interviews and forwarding of files to the U.S. Consular Posts are subject to delays due to the ongoing operational reductions at consulates during the COVID-19 emergency.

The U.S. Senate passed by Unanimous Consent an amended version of H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019 that was passed by the U.S. House of Representatives in 2019.

The Senate-passed bill eliminates per-country quotas for all employment-based immigrant visa and adds additional requirements for H-1B visas. See the bill here.

This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), and EB-3 (skilled and other workers) for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country. EB-5 is not included in the transition as it was in the earlier House version.

The Senate bill includes H-1B compliance provisions and limitations on Chinese immigrants affiliated with the Chinese government. We understand that House leaders have concerns with some of these new Senate-passed provisions and will amend the bill and send it back to the Senate for passage. Should the bill pass both Chambers, it will be sent to the president for his signature before it will go into effect.

The Department of State (DOS) has released its March 2020 Visa Bulletin, which shows significant advancement in most employment-based (EB) categories, particularly the EB-5 category.

根据国务院（DOS）最新发布的2020年3月签证排期表（Visa Bulletin），大多数职业类别的移民排期有大幅进展，尤其是EB-5投资移民类别。

Specifically for EB-5, the priority dates per Chart A Final Action Dates will remain current for investors born in all countries except China, India, and Vietnam. The final action cutoff date for China will advance by almost six months to May 15, 2015. Likewise, the final action cutoff date for India will advance more than seven weeks to Oct. 22, 2019; and the final action cutoff date for Vietnam will advance by one month to Jan. 15, 2017.

针对EB-5类别，除中国大陆，印度和越南以外的所有其他国家/地区出生的投资人，目前仍然没有排期。对于中国大陆出生的投资人，在2020年3月，最终裁定日（表A）截止日期将前进近六个月，至2015年5月15日。

Furthermore, USCIS announced that applicants will be able to use Chart B for filing adjustment of status applications. Chart B Dates for Filing will remain current for all countries other than mainland China. The Chart B cutoff date for Mainland China will move up seven months to Dec. 15, 2015, for the month of March. As such, Mainland China-born investors with priority dates earlier than Dec. 15, 2015, who are in the United States in valid visa status will be able to file adjustment of status applications, and the National Visa Center will be able to initiate the immigrant visa process for those investors with the same priority dates who reside abroad.

此外，美国移民局2月19日宣布，申请人将可以根据递交申请日（表B）在美国递交I-485申请调整身份。对于在中国大陆以外的所有国家/地区出生的申请人，表B目前仍然没有排期。对中国大陆出生的申请人，表B的优先日截止日期将在3月份前进7个月，直到2015年12月15日。因此，满足（1）目前在美国具有合法身份 （2）优先日早于2015年12月15日这两个条件的中国大陆出生的投资者将能够在3月递交I-485身份调整申请. 与此同时，对于优先日早于2015年12月15日， 但居住在国外的投资人，国家签证中心将会开始启动投资人的移民签证程序.

As a reminder, the scheduling of immigrant visa interviews and forwarding of files to the U.S. Consular Post in Guangzhou, China, are subject to delays. This is because all regular operations were ceased at the U.S. Consular Posts in China due to health concerns associated with COVID-19.

值得注意的是，安排移民签证面试和将文件从国家签证中心转发到中国广州美国领事馆的时间可能会有所延迟。这是由于COVID-19冠性病毒的影响，所有在美国的中国领事馆目前仍停止正常运作。

In addressing the significant movement forward of the cutoff dates for Mainland China-born EB-5 investors, the State Department explained that, to date, there has not been a lot of applicants seeking to obtain conditional permanent residence. Therefore, the State Department made the decision to advance cutoff dates, particularly for EB-5 investors born in Mainland China, in order to utilize fully the amount of green cards available. The State Department warned, however, that it is possible for the cutoff dates to retrogress in the coming months.

对于3月份排期的大幅前进，国务院解释原因为，迄今为止，申请人寻求获得有条件的永久居留权的数量并不多。因此，国务院决定提前优先日截止日期，特别是对于在中国大陆出生的EB-5投资者，以充分利用可用的绿卡数量。国务院同时也警告说，排期有可能在未来几个月内倒退。

Please contact your GT attorney with any questions regarding the March 2020 Visa Bulletin or your eligibility for green card processing.

如果您对2020年3月的排期表，或者对您是否可以进行下一步的绿卡申请有任何问题，请联系您的GT律师。