United States Citizenship and Immigration Services (USCIS) implemented a visa availability approach for the processing of I-526 petitions on March 31, 2020. The impact of this new approach varies depending on an EB-5 investor’s country of origin.
Visa Availability Approach
Prior to the implementation of the visa availability approach, USCIS used a first-in-first-out (FIFO) approach to processing I-526 petitions. This meant that the adjudication of I-526 petitions was based on when USCIS received the petitions. The FIFO approach resulted in USCIS having leftover visas at the end of each fiscal year due to backlogs created by certain countries, causing I-526 petitions from other countries to not be processed despite visas for the countries being available. The visa availability approach should decrease the number of leftover visas because under it, USCIS processes I-526 petitions according to the availability of EB-5 visas for the investor’s country of origin.
As of May 2020, only EB-5 investors from Mainland China appear to be negatively impacted by the visa availability approach, according to the information provided in Chart B of the monthly Visa Bulletin. Investors from other countries with high demand, such as India, Vietnam, and South Korea, should be alert in case they also become subject to longer wait times under the visa availability approach, although in a March 13 public engagement, USCIS disclosed that India’s backlog may vanish by summer 2020.
The demand for EB-5 visas in China is unmatched by any other country. This meant that when the FIFO approach was in place, most of the I-526 petitions that were processed were from Chinese EB-5 investors. This increased the Chinese backlog and resulted in a lot of leftover visas. The visa availability approach will minimize the number of leftover visas by prioritizing I-526 petitions from other countries once USCIS has processed the annual allotment of visas for Chinese investors.
The new visa availability processing approach will not affect expedite requests, which will be honored by USCIS regardless of the EB-5 investor’s country of origin.
Keeping Up to Date on Affected Countries
Chart A and Chart B in the monthly Visa Bulletin released by the U.S. Department of State – Bureau of Consular Affairs contain pertinent information for EB-5 investors.
Chart A lists the final action dates for EB-5 investors. EB-5 investors with priority dates on or before the listed final action date for their country of origin may schedule their visa interview and apply for conditional permanent resident status. Investors from countries listed as having a current final action date can schedule their visa interviews as soon as their I-526 petitions are approved. China, India, and Vietnam do not have current final action dates as of May 2020. This means that EB-5 investors from these countries need to check back monthly to determine if they can schedule a visa interview.
Chart B lists the dates for filing for EB-5 investors. This chart is used by USCIS to determine adjudication assignments. Investors from countries with current dates for filing can file their visa application regardless of their priority date. As of May 2020, Mainland China is the only country that does not have a current date for filing. This means that Chinese EB-5 investors must check back each month to see if they can file their visa application.