The EB5 investment program offers a two-step process to obtain conditional permanent resident status in the United States. The EB-5 process can entail some rather long wait times, especially for those investors from countries experiencing a backlog. The first step requires investors to file Form I-526 and wait for approval. The second step, following I-526 petition approval, allows investors to apply for their actual U.S. green card, entailing an additional waiting period.
The worldwide demand for EB-5 visas is large and growing. United States Citizenship and Immigration Services (USCIS) tries to control the limited distribution of EB-5 visas by issuing Visa Bulletins every month. These Visa Bulletins cap the number of investors approved for EB-5 visas by the date their I-526 petitions were received by USCIS, otherwise known as their priority date. But demand is not the only factor that can contribute to a lengthy waiting period.
Once their I-526 petition is approved, most foreign nationals with an active EB-5 investment are able to immediately apply for their EB-5 visa. However, if the investor is from a particularly backlogged country—only China, as of November 2020—there is an additional waiting period to even apply for a green card. An investor may only submit their permanent residency application if their country is listed as “current” in Chart B of the USCIS’ monthly Visa Bulletin. If not, they must wait.
So, if an EB-5 investor is from a “current” country, does that mean their EB-5 journey will be free from delays? Not necessarily.
No matter who makes an EB5 investment, unexpected factors may delay their visa journey. For instance, the closure of a U.S. consulate or embassy, or the manpower and productivity of USCIS (or lack thereof), could cause EB-5 visa delays. Even the unforeseen obstacle of COVID-19 and its worldwide shutdown has, in some cases, thrown countless EB-5 investors into processing limbo. If Chart A of the Visa Bulletin indicates that an investor is subject to a final action date, they may file their application, but they must wait until an EB-5 visa becomes available before they are issued their green card.
The Influence of COVID-19
USCIS issued a staggeringly low number of EB-5 visas in fiscal year 2020 for one reason: the COVID-19 pandemic. The fast-moving, long-incubating virus has created temporary shutdowns around the world that have, unfortunately, included U.S. embassies and consulates. This means that EB-5 investors worldwide have largely not been able to undertake their in-person visa interviews and thus have not been able to claim their U.S. permanent residency green cards. The exception has been investors already residing in the United States under a different visa.
Why has this condition favored domestic investors? If an EB-5 investor is currently residing in the United States, they are able to simply file Form I-485 to adjust their status, bypassing the National Visa Center (NVC) altogether. Normally, the USCIS Visa Bulletin affects all applications equally, whether their current residence is domestic and foreign. But with U.S. consulates and embassies shutdown overseas, final action dates moving forward in the Visa Bulletin during the COVID-19 pandemic tend to only benefit those who can apply for a U.S. green card by simply adjusting their residency status.
Investors from India: What to Expect
In July 2020, USCIS changed the final action date for India to “current,” a cause for celebration across the EB-5 world. Even better, Indian status has remained “current” as of November 2020, as predicted by the head of the U.S. State Department’s Visa Control and Reporting Division. While this is an incredible change, Indian investors should understand that this does not mean all wait times have decreased.
Unlike investors from Vietnam, most Indian EB-5 investors are still awaiting adjudication for their I-526 petitions. The Visa Bulletin makes no account of such investors, only considering those whose I-526 applications have already been approved. So, although the Visa Bulletin has made India’s final action state “current,” it could again fall back as more and more of the thousands of EB-5 investors in India receive I-526 approval.