EB-5 Investor BenefitsEB-5 Program

What Indian Nationals Should Know About EB-5 Visa Retrogression


Obtaining a U.S. green card and starting a new, prosperous life in the United States of America is a dream for millions across India. However, given the popularity of U.S. visa investment programs among Indian citizens, the challenges are numerous, with wait times for EB-2 and EB-3 visas reaching up to a decade. The popular H-1B visa has also become harder to obtain due to stricter regulations from United States Citizenship and Immigration Services (UCSIS). So, what is a good option for wealthy Indians looking to immigrate to the US?

The EB-5 program is one of the best ways Indian nationals can secure the life in the US that they desire. It’s not instantaneous—the growing popularity of the EB-5 program among Indian investors is gradually increasing the wait times—but Indian EB-5 investors can expect to obtain their permanent residency far sooner than their compatriots in most other U.S. visa investment programs.

A Brief Overview of the EB-5 Program

The EB-5 Immigrant Investor Program was born in 1990 to help boost local economies by creating new jobs through the investments of wealthy foreign nationals. As a reward, the foreign investors are entitled to U.S. permanent residency as long as they meet the EB-5 program’s requirements: most importantly, the creation of 10 full-time jobs for U.S. citizens or permanent residents.

EB-5 investors have to put a significant amount of capital into EB-5 projects—namely, $1.8 million or $900,000, depending on whether the project qualifies for targeted employment area (TEA) designation. If an EB-5 project is in a rural area or a high-unemployment urban area, investors need only invest $900,000.

There are two ways to invest: directly or through a regional center. The majority of EB-5 investors choose to go through regional centers because they require less managerial input from the investor and can count indirect and induced jobs, making it significantly easier to meet the job creation requirement.

The first step of the EB-5 visa process is the preparation and submission of the I-526 petition.

Why do EB-5 visa backlogs build up?

There is an annual limit to the number of people who can receive an EB-5 visa—roughly 10,000. To make the process fairer for people from less represented countries, each country is then subjected to a limit of 700 visas per year, but any leftover visas at the end of the fiscal year (September 30) are then allocated to overrepresented countries such as China, India, and Vietnam.

When EB-5 investors submit their I-526 petition, the date USCIS receives their petition becomes their priority date. For countries with backlogs—where there are more EB-5 investors than EB-5 visas available—USCIS begins processing visas based on a cut-off date. Investors whose priority date is before the cut-off date may apply for a green card during the month for which the cut-off date was announced. The EB-5 cut-off dates are published monthly on the Visa Bulletin.

Can Indian nationals living abroad escape the country restrictions imposed on India?

Unfortunately for Indians residing in less popular EB-5 countries, EB-5 country restrictions apply to the investor’s country of birth. However, if an Indian national is married to a national of another country, the couple may use the spouse’s nationality to avoid visa retrogression issues. This exception applies only for spouses—if an Indian couple has children with a different nationality, the family must still apply as Indians.

Who is subject to the EB-5 backlogs?

Indian EB-5 investors are subject to visa retrogression in all stages of the EB-5 visa process except when they hold conditional permanent residency before the cut-off date is set.

EB-5 investors already living in the US whose I-526 petition has received approval and who submitted their adjustment of status application before the published cut-off date may apply for an employment authorization document (EAD) and advance parole (AP), if they wish. These documents allow foreign nationals in the US to work and travel abroad. Investors must refrain from engaging in these activities before receiving official permission in the form of an EAD and AP.

Is it possible to apply for a green card, EAD, or AP with a priority date after the cut-off date?

Each month, USCIS publishes a Visa Bulletin detailing date-related information for various countries. The dates in Chart A are the cut-off dates—there is a visa available for EB-5 investors with a priority date before the cut-off date. In Chart B are the dates for submitting green card applications—EB-5 investors whose priority date falls before the listed date can file their visa applications.

Application process for investors living abroad

Investors living abroad may file their green card applications with the National Visa Center from the relevant U.S. consulate in their country. EB-5 investors may file their applications based on the dates listed in Chart B, but they will have to wait until they are eligible by Chart A’s cut-off date before they can receive their visa.

Indian EB-5 investors should take the difference between the two dates into account, as even though filing a visa application by the date in Chart B may expedite the process, if the gap is too long, they may need to update some of the information or documentation in their application. Furthermore, for applications filed by the Chart B date, children are at risk of aging out and becoming ineligible for a U.S. green card.

Application process for investors living abroadthe US

If you are an EB-5 investor already living in the US, you will have to check the Visa Bulletin carefully each month to determine whether you can follow the date in Chart A or B. Sometimes (typically in the latter half of the fiscal year), USCIS does not allow EB-5 investors applying internally to use the Chart B dates, even if their priority date falls before it. If USCIS is accepting Chart B submissions, investors may file for an EAD and AP as well as a green card, and they may renew the EAD and AP until they receive conditional permanent residence.

What advantages does the EB-5 program afford Indian nationals?

If you are a wealthy Indian national hoping to immigrate to the US, don’t be put off by the visa retrogression problems in the EB-5 program—The wait times are much shorter than in other visa investment programs. The best time to apply is now, since the longer you wait, the more the backlogs are likely to grow.

Another advantage, if you already reside in the US on a different visa, is the ability to continue working and traveling freely in the US while waiting for the approval of your EB-5 visa. Investors in the EB-5 program can thereby bypass the problems faced by H-1B visa holders, such as finding an employer to sponsor them and testing their luck in the lottery system.