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The End of the Indian EB-5 Backlogs?

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If you’re an Indian EB-5 investor or an Indian national considering investment in the EB-5 Immigrant Investor Program, the recent developments are good news for you. Due to a decrease in EB-5 demand in recent months, the I-526 backlog for Indian investors has rapidly shrunk and, according to United States Citizenship and Immigration Services (USCIS), may even entirely disappear by summer 2020.

The Current Status of the Indian Final Action Date

According to April 2020’s Visa Bulletin, the Indian final action date has jumped ahead significantly, opening up the window to apply for a U.S. visa to a greater number of Indian EB-5 investors. With a final action date of January 1, 2019, any Indian investors whose priority date is earlier than 2019 may now apply for conditional permanent resident status.

No More Indian EB-5 Backlog by Summer 2020

The prediction of the end of the Indian EB-5 backlog was announced at USCIS’s public engagement on March 13, 2020. USCIS attributed the expected developments to a fall in EB-5 demand in India, with the speakers adding that they anticipate the Indian final action date will remain current for the foreseeable future. If their predictions come true, Indian EB-5 investors will be permitted to file for a U.S. green card as soon as their I-526 petition is approved.

USCIS’s Changes to Its I-526 Processing Approach

In January 2020, USCIS announced it would be adopting a visa availability processing approach for I-526 petitions, and on March 31, 2020, it implemented the new method. The new processing approach for I-526 petitions replaces the traditional first-in-first-out method and prioritizes petitions based on the number of remaining available visas for the EB-5 investor’s country. Since USCIS determines visa availability using the Chart B dates in the Visa Bulletin, the only investors poised to be affected as of April 2020 are those from Mainland China.

Estimated Processing Times for I-526 Petitions

As of April 8, 2020, the I-526 processing time range listed on the USCIS website is from 31 to 50.5 months (2.6 to 4.2 years). However, EB-5 investors should not necessarily expect that their adjudication will fall within this time range. According to USCIS processing data from FY2019 Q1, up to 80% of adjudications may fall outside this range, with the majority being adjudicated faster than expected. Given that USCIS’s processing estimates draw on data from two months prior, expecting 100% accuracy would be unreasonable in the first place.

The Indian Government’s New Remittance Tax

To accompany the good news of disappearing backlogs, Indian EB-5 investors must also face the bad news of the new remittance tax from the Indian government. Introduced on April 1, 2020, the tax obligates Indian investors to pay an additional 5% on their transfers to U.S. EB-5 projects, which amounts to $45,000 or $90,000 in extra fees, depending on whether the EB-5 project qualifies for targeted unemployment area designation. However, every cloud has a silver lining: The new tax could discourage EB-5 investment from India and keep demand down, ensuring a faster process for the Indian nationals who do invest.

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To be eligible for the EB-5 Program, you must meet the following 3 requirements:
(1) Make a USD $900,000 cash investment;
(2) Not have a record of U.S. immigration violations or criminal activity;
(3) Prove that you legally obtained your $900,000 (with supporting documents)