Post-RIA: what EB-5 investors can expect for I-526 processing & visa wait times

1. Introduction

2. What are the steps and timelines associated with getting an EB-5 visa?

3. Two major factors for new EB-5 investors: 1-526 processing & visa availability

4. Processing times: standard, expedited and ‘priority’

5. Reserved EB-5 visas: a game-changer for backlogged countries  

6. New Chinese investors: the wait time for a non-reserved visa

7. Indian backlog and the visa wait time for new investors

8. Vietnamese backlog and visa wait time for new investors

9. Unused reserved visas — what happens to them?

10. Summary

Introduction

In the new era of EB-5 — post-enactment of the EB-5 Reform and Integrity Act of 2022 (RIA) — what can new investors expect for Form I-526 processing times? And how long will new investors from backlogged countries have to wait for an available visa after I-526 approval?

This paper will focus on the how the different processing options in 2022 may impact I-526 processing times, and how the RIA impacts new EB-5 investors in terms of visa availability. 

I-526 processing times may now range from several months to several years. 

Visa availability is is an even more complex issue. Investors from backlogged countries (China, India, and Vietnam) are facing a visa wait time of at least several years and, for Chinese petitioners, possibly even multiple decades. The Chinese situation in particular is complex and dependent on future variables.

However, the RIA offers reserved visas that are potentially immediately available to an investor from any country, including China, India, and Vietnam. 

While we have dedicated much analysis to this investigation, and we are trying to use the most current data available, as well as the insight of top immigration lawyers, we admit that much of the visa-availability question is subject to assumptions and variables that are ever in flux. As such we welcome any suggestions or corrections from the EB-5 community.

What are the steps and timelines associated with getting an EB-5 visa?

First, let’s have a quick recap of the EB-5 process for a principal petitioner and dependent family members to get a Green Card and live and work in the U.S.

1. File I-526

This first official step is to file the primary EB-5 application, Form I-526, and wait for processing and approval. Upon I-526 approval, if the petitioner has an immediately available visa, they can proceed to the next step. 

If there is not an available visa, the petitioner’s place in line is set according to the date of their I-526 filing.

2. A) File for Adjustment of Status

After I-526 approval, if the petitioner is already living in the U.S. on another visa, he or she would file From I-485 for adjustment of status. 

From FY 2017 to FY 2022, the median adjustment of status processing times for employment-cased forms across all service centers has ranged from seven months (FY 2017) to 10.6 months (FY 2018). 

However, the California Service Center, which processes most EB-5 I-485 applications, has posted longer times (for example, reporting 80% of cases completed within 25.5 months as of August 2022). It is our belief that the such previously unheard of waits are directly related to COVID-19 and should approach pre-pandemic processing times as the impact of the pandemic recedes.

On a positive note, the RIA now allows for petitioners living in the U.S. on a non-resident visa (typically H-1B, E-2 and F-1) and whose priority date is “current” on the Visa Bulletin the ability to file their I-526 petition and I-485, for adjustment of status, at the same time. 

Concurrent filing gives EB-5 investors legal status while they wait for adjudication of their I-526 petitions. It allows petitioners to apply for work authorization and travel permits before I-485 approval; upon approval of the work and travel permits, the petitioner can freely live, work and study in the U.S Essentially, it offers the major Green Card benefits before a Green Card is issued.

2. B) Consular processing

If the petitioner is living abroad, he or she electronically file a Form DS-260 and have an interview at the U.S. consulate or embassy in the country they are living in. In previous years, this process typically took six to 12 months.

Since COVID-19 impacted operations at USCIS, the National Visa Center, and consulates, applicants have experienced significant delays in receiving fee bills, completing paperwork, and getting interviews scheduled. The severity of delay has varied with each consular post, depending on pandemic impacts. Again, as the pandemic fades and operations return to normalcy, we think consular processing times should return to what they have been in recent years.

3. Receive conditional permanent residency 

After approval of either adjustment of status or consular processing, the principal petitioner and his or her family can live in the U.S on conditional permanent residency. After two years, they can apply to remove conditions on permanent residency. 

Two major factors for new EB-5 investors: 1-526 processing & visa availability

With the expectation that current longer waits for either adjustment of status or consular processing are mostly pandemic related and thus will not be a long-term situation, we would like to focus on two potentially significant factors that impact wait times in the EB-5 process for new investors: I-526 processing and the wait time — if any — for an available visa upon I-526 approval.

I-526 processing

The first major factor in the EB-5 process is the time it takes to process an I-526 petition. This applies to any petitioner and can vary greatly depending on a the type of investment that is made and whether or not it receives “expedited” or “priority” processing (as opposed to “standard” processing). 

We will discuss different I-526 processing potential wait times in depth later.

Visa wait time 

The second factor— and potentially even more significant — factor when it comes to a wait time for an EB-5 visa is whether or not, at the time of I-526 approval there is an available visa (based on whether or not the petitioner’s country of birth was “current” in the Visa Bulletin at the time of I-526 filing). 

As most countries in the world are “current,” for petitioners from these countries there is an immediately available visa upon I-526 approval.

However, if a country is oversubscribed (commonly called "backlogged" or "retrogressed"), and there are more approved petitioners than the annual country caps have allowed for, this creates a visa line-up for that particular country. Even with an approved I-526 petition, applicants from such countries can potentially wait a decade or even much longer for an available visa.

As of 2022, three countries in the world — China, India and Vietnam —have become severely oversubscribed for EB-5 visas, and thus new petitioners from these countries will face long wait times for visa availability. 

(In past years, South Korea, Brazil, and Taiwan have also approached oversubscription.) 

However, the new reserved visas offer a potential fast track for Chinese, Indian, and Vietnamese applicants to circumvent thousands of fellow nationals who filed their I-526 before the RIA, and thus are not eligible for reserved visas. 

Reserved visas categories will be immediately available for investors from these countries until the reserved lines themselves become oversubscribed, and then bring backlog wait times of their own (these wait times will be separate from the “standard” visa wait times for each country).

Processing times: standard, expedited and ‘priority’

Standard processing and what immigration lawyers expect

Standard EB-5 processing refers to the regular processing a petition receives unless it qualifies for some special reason to move to the front of the line or be processed more quickly than usual. 

In FY 2016 to FY 2022,  the median I-526 processing was only 16.6 months. Since then, due to COVID, political factors, the number of petitions filed, as well as the processing system and efficiency of USCIS, processing times have skyrocketed. 

So what can we expect now in 2022 for new petitions with standard I-526 processing? We asked a handful of immigration lawyers and received a range expectations.

Immigration lawyer Dennis Tristani was the most optimistic in his projection: “My sense is that a conservative estimate of 24-30 months for a standard, non-expedited processing will be a safe bet moving forward given the fact that this was a common processing time range prior to the Regional Center Program lapse.”

Lawyer Joseph Barnett offers his perspective: "We are seeing regional center cases from 2015 to late-2018 get approved right now (usually with the help of a mandamus).” 

[Note: an EB-5 mandamus lawsuit asks a court to compel the government to immediately process a petition if the delay in processing is found to be unreasonable.] 

Veteran lawyer and former USCIS Acting Director Robert Divine holds a similar view: “The last we knew, standard (non-expedited) I-526 processing times was four or five years.”

Divine’s estimate falls in line with what USCIS, at the time of this writing (August 2022) is publishing on their “Check Case Processing Times” page regarding I-526 processing: 52.5 months

Can we be hopeful about the future of standard processing getting back to the times we saw several years ago? Lawyer Joel Yanovich has some qualified optimism: “Based on the directives from Congress in the new EB-5 law, there is reason to hope these ridiculously long processing times will start to come down. But I am skeptical we are going to see much improvement for non-expedited cases in the near future.”

‘Expedited’ processing for investments in the national interest

For rare EB-5 investments that meet certain qualifications, including being in the U.S. national interest, U.S. Citizenship and Immigration Services (USCIS) will provide “expedited” processing and move these petitions to the front, or near the front, of the line. (Note that expedited processing only means that petitions will be reviewed ahead of other that were filed earlier; it is not a guarantee of petition approval). 

Many immigration lawyers we worked with have cited recent processing times of only months for an expedited petition. Robert Divine and Dennis Tristani have both seen in the recent past expedited processing times of about three to six months. 

However, Divine observes that for the pooled direct investments that were filed during the recent  Regional Center Program lapse (July 1, 2022 to March 14, 2022), he has not seen expedited adjudications yet within six months.

At the time of this publishing (summer 2022), we have seen one investor who filed in 2022 with expedited processing receive I-526 approval in seven months (but are also aware of other investors with expedited processing waiting more than seven months).

Joel Yanovich also has clients with recent expedite approvals but has not seen adjudications within six months: “My best guess on processing times for expedited cases is less than 12 months.”

Given the very recent data point of expedited I-526 approval in seven months, it is our hope that as the effects of the pandemic recede and as we see USCIS processing efficiency improve (as is evidenced by the recent upward trend of I-526 petitions processed), there is a reasonable chance we see a return to the three-to-six-month processing times expedited petitions enjoyed in the recent past.

Who can benefit from expedited  processing

Expedited processing has been the fastest I-526 processing route available for petitioners from non-backlogged countries. 

For investors from backlogged countries, unless they have an immediately available — or soon to be available — visa waiting for them (see below), faster processing doesn’t help them as they still may have to wait many years for an available visa after I-526 approval — unless, of course, they qualify for a reserved visa, as per the RIA set-asides. 

’Priority’ processing for rural investments

The new EB-5 legislation is clearly focused on helping rural U.S. areas. In addition to receiving the largest portion of reserved visas (more on this below), rural investments are the only reserved investments to also gain an I-526 processing advantage. The RIA states that USCIS “shall prioritize the processing and adjudication of petitions for rural areas.”

As the legislation only became enacted in March of 2022, no one has seen a petition associated with a rural investment become adjudicated under priority processing. Therefore, immigration lawyers and other EB-5 pundits must, for the moment, make educated guesses as to just how fast rural processing will be. 

Prioritized processing: could it be similar to expedited?

While no one knows just how USCIS implement prioritized processing for rural petitions, the most logical system for the agency would be to mirror the approach the Immigration Service uses for expedited projects: when a particular project is approved by means of an I-956F to qualify for faster processing, as soon as an I-526E investor petition comes in associated with that project, that petition it is assigned to a USCIS adjudicator right away, rather than going into a queue. This would make the most practical sense. 

Otherwise, if the rural petition associated with an approved rural project goes into a warehouse with thousands of other petitions, how will USCIS determine when to pick out that petition and start to work on it?

Could priority processing for rural investments be similar to expedited processing? Yanovich thinks is a possibility: “Yes, I suspect that priority processing will be some form of expedited processing. I have seen other interpretations. But, I think the most likely way USCIS will interpret this requirement from Congress is to give some level of expedited processing to these cases.”

Tristani is also hopeful that priority processing will be analogous to expedited processing: “Yes, I could see this being a similar benchmark for processing speed, although it’s anyone’s guess as to what this will be right now.” He goes on to cite the new legislation as establishing a processing speed goal of 180 days for an I-526 petition and states, “While I don’t see all I-526 petitions being adjudicated in this timeframe, I could see ‘priority processing’ being a 180-day adjudication.”

Divine acknowledges that “we just don’t know how USCIS will interpret and implement” priority processing, and makes a guess that it could take about a year. 

Lawyer Sam Newbold also throws out a guarded estimate for priority processing: “Maybe 12 months. But, anything short of standard processing would be considered priority processing.”

Mandamus lawsuits for priority petitions after one year?

Would a judge view a mandamus lawsuit that sues the government for taking too long to process a rural-associated petition differently from a standard petition? Barnett thinks this is possible: “If the intent of Congress is to prioritize those cases, then that is one of the factors a judge looks at when determining whether the delay is unreasonable.”

Tristani sees that there is a definite possibility that rural petitions could have different standards in a mandamus case. And Divine offers this, “I could see mandamus on a rural-investment petition after a year.”

When it comes to mandamus suits for rural priority processing, Newbold has a more cautious take on the issue: “It takes time to understand what is ‘reasonable’ processing and for agency precedent to develop.”

One thing is certain: rural investments are directed by a new law to be prioritized, or as the dictionary defines it, “to be treated as more important than other things.” 

And given that the two biggest lawmakers behind the RIA , Senators Grassley and Leahy, were fierce champions of EB-5 a tool for rural economic development, there will be a political expectation — if not pressure — to make the intent of the law a reality.

Investors from any country can benefit from priority processing

Priority processing may be an advantage for investors from any country. Petitioners from backlogged countries should gravitate towards priority processing as rural investments will also qualify for a reserved visa.

Reserved EB-5 visas: a game-changer for backlogged countries

The EB-5 Reform and Integrity Act of 2022 literally starts off on its very first page with a major provision about reserved visas:

1. “20 percent shall be reserved for qualified immigrants who invest in a rural area”

2. “10 percent shall be reserved for qualified immigrants who invest in… a high-unemployment area”

3. “2 percent shall be reserved for qualified immigrants who invest in infrastructure projects”

The fact that such reserved visa “set-asides” are the first major provision to lead off the new legislation is intentional and signifies the importance of these types of investments to Congress.

These investments will incentivize new investors from backlogged countries to avoid multi-year lineups, and they may also impact some investors with pending petitions from backlogged countries.

Reserved set-asides and country caps

With 3,200 out of a standard 10,000 visas going to the reserved categories, that leaves 6,800 non-reserved visas. 

Some people may wonder if the 7% country cap still applies to the 10,000 overall visa (in a standard year) or just the 6,800 non-reserved visas. It is our understanding that the legislation indicates the 7% country cap applies to the total number of visas. 

And it is our assumption that as reserved visas only have value for backlogged countries that the 7% country cap does not apply to reserved visas. Thus, all 3,200 visas in a year could be issued to the three backlogged countries.

Reserved set-asides have no impact on non-backlogged countries

Reserved visas have no positive or negative impact for non-backlogged countries (countries other than China, India, and Vietnam), even after reducing the general visa pool by 32%.

Why does decreasing the pool by almost one-third have no impact? There is not enough demand from the rest of the world for the reduction to matter. 

FY 2018 saw the highest number of EB-5 visas issued to countries other than China with 3,682 going to the rest of the world. Thus, 6,800 non-reserved visas in a standard year (10,000 minus the 3,200 reserved visas) should more than meet the needs of non-backlogged countries going forward.

Reserved visas a huge advantage for new applicants from backlogged countries

Reserved visas allow petitioners from backlogged countries to jump head of thousand of pending petitioners from the same country and save many years of wait time.

In essence, this should create a brand-new visa lineup for any new investor — including those from China, India, and Vietnam. It avoids having to stand behind thousands (or in the case of Chinese investors, tens of thousands) of pending petitioners who filed many years ago.

In practical terms, getting a reserved visa can save a new Chinese petitioner possibly two decades in waiting for an available visa. Without a reserved visa, new Indian applicants may have to wait close to a decade for an available visa, and Vietnamese investors should expect to wait several years as well.

The benefit of reserved visas is clear and compelling for new petitioners from China, India, and Vietnam.

3,200 reserved visas only accommodate about 1,140 approved petitions

It bears noting that while there are 3,200 reserved visas in a standard year of 10,000 visas, the set-asides do not accommodate 3,200 approved I-526 petitions; the dependents of principal petitioners must be accounted for. In general, almost three visas are given to a family for every approved I-526 filing. 

Interestingly, different countries have significantly different numbers of dependents, according to the latest available statistics from FY 2017 to FY 2019:

• 36.9% of Chinese I-526 petitions go to principal investors: An average of 2.7 visas are issued for every approved Chinese I-526 filing.

• 44.3% of Indian I-526 petitions go to principal investors: An average of 2.3 visas are issued for every approved Indian I-526 filing.

• 25.4% of Vietnamese I-526 petitions go to principal investors: An average of 3.9 visas are issued for every approved Vietnamese I-526 filing.

The average of all three backlogged countries is 35.6% of I-526 petitions going to principal investors (a multiplier of 2.8 for the entire family); therefore, 3,200 reserved visas may be able to accommodate somewhere around 1,140 investor families, assuming all three countries take an equal portion of reserved visas.

Are there approximately 1,100 families in China, India and Vietnam willing to take advantage of reserved visas in one year? One would think the answer would be a definite yes — either in 2022 or very soon. 

Once demand for reserved visas exceeds availability, a backlog will begin for this reserved category as well. However, if such a reserved backlog is created, it should be, at least for the near future, substantially shorter than the non-reserved lineups pending I-526 petitioners currently face.

Can pending investors get reserved visas?

While the RIA does not address this question, it has since been answered in a Department of State/AILA Liaison Committee Meeting that took place on June 9, 2022. And, unfortunately, the government will not allow pre-RIA petitioners to access the reserved visas: “Pending petitions filed prior to the enactment of the EB-5 RIA will be adjudicated under the law in effect at the time of filing.” 

Thus, only post-RIA investors can take advantage of reserved set-asides.

New Chinese investors: the wait time for a non-reserved visa

Determining the visa wait time for new Chinese petitioners who make “standard investments” (those that do not qualify for reserved visas) is complex. Fist we must determine how many pending Chinese petitioners are in line; then we must determine how many visas each year will be applied against the Chinese backlog.

As of November 2021, there were 44,357 Chinese applicants waiting for a visa at the National Visa Center (NVC).

Plus, there are an estimated 4,941 Chinese I-526 petitions on file with USCIS, waiting to be adjudicated. With an estimated approval rate of 90%, and an average of 2.7 visas per approved Chinese petition, this equates to 12,007 Chinese petitioners we could expect to be approved by USCIS. 

This totals over 56,000 Chinese petitioners in line for a visa. 

How the Chinese backlog grew over the years

To oversubscribe beyond the annual country cap of 700 visas (7% of the EB-5 total, which in a standard year is approximately 10,000), China needs about 288 I-526 filings with a 90% approval rate (using a multiplier of 2.7 for dependents). 

While Chinese demand has been very strong since 2013, Chinese filings hit a peak in 2015 and remained very high until 2018 when filings dropped substantially, likely due to the news of a backlog and extremely long waits for new petitioners.

*Visa applicants estimated based on a multiplier of 2.7 visas for every I-526 petition

Pending Chinese petitioners are first in line for unused visas

In addition to the the 700 “by right” visas China receives in a standard year according to the country cap quota, any unused visas go against the Chinese backlog, as Chinese petitioners were the first ones to oversubscribe to the EB-5 program.

Over 13,000 visa applicants from the ‘rest of the world’ must clear before China sees many unused visas

However, before a substantial number of unused visas can be applied against the Chinese backlog, USCIS needs to process  13,332 “rest of world” visa applicants waiting for I-526 approval (numbers as of November 2021).

Processing experts expect this backlog to take three to four years to clear. 

Thus, annually for about the next three years we expect USCIS to issue 3,200 reserved visas, 2,100 by-right visas to the top three countries, and perhaps 4,000 visas to pending petitioners from the rest of the world. 

That totals 9,300 visas leaving about 700 unused visas going to China for the next few years. Add in the 700 by-right visas going to China each year, and we expect the Chinese backlog to receive about 4,000 visas over the next three years.

In three years the Chinese backlog should be reduced from 56,000 to 52,000 petitioners. 

After this time, we expect there to be greater numbers of unused visas going to the Chinese backlog — and that will substantially reduce the visa wait time for new Chinese investors who don’t qualify for reserved visas. 

Projecting future ‘rest of world’ visa use to determine extra visa help for China

Looking beyond 2025 we have two constant factors (the 2,100 visas that by right go to China, India, and Vietnam; and the 3,200 reserved visas).

The variable factor will be the rest of world visa usage; this number will determine the unused visas the Chinese backlog will receive, and thus impact new Chinese petitioner visa wait times.

Predicting the global appetite for EB-5 with a new price tag requires some educated guesswork as recent filing statistics were based on the $500,000 minimum investment amount; we simply do not know how the market will respond to an increase of $300,000 (60%) to raise the minimum investment amount to $800,000.

Let’s start with the numbers we know to estimate a possible range of “rest of the world” interest in EB-5 at the new and higher cost.

I-526 EB-5 filings from ‘rest of world’ countries (not China, India or Vietnam)

FY 2013: 521 filings

FY 2014: 621 filings

FY 2015: 2,014 filings

FY 2016: 1,828 filings

FY 2017: 1,483 filings

FY 2018: 1,958 filings

FY 2019: 2,250 filings

FY 2020: 2,762 filings

We can see EB-5 interest outside of the three main countries ranged from 521 (FY 2013) to 2,762 (FY 2020). Again, it should be stressed that these filings were made, for the most part, when minimum investment amount was just $500,000. 

It is a fair assumption that global interest outside of the three main countries will not exceed prior activity after the minimum investment amount increased from $500,000 to $800,000. 

A range of Chinese visa wait times based on extremes of  ‘rest of world’ visa usage

Guesswork for “rest of world” visa use, and thus the number of expected unused visas that will help the Chinese backlog and new Chinese investors, can have wildly varying implications. 

If 500 rest-of-world petitions are filed, China would get about 3,440 visas each year. At this rate the backlog would take about 15 years to clear (after 2025) or 18 years from today.

If 2,000 rest of world I-526 filings are made, China would receive no unused visas and only receive its by-right annual quota of 700 visas. At this rate, the backlog of 52,000 would take 74 years to clear (after 2025) or 77 years from today.

A reasonable assumption of Chinese wait times for a visa

During the five-year period of FY 2015 to FY 2019 the “rest of the world” filings tended to be close to 2,000 per year. This seems like a fair gauge of recent global interest in EB-5 — but at $500,000.

The 60% minimum investment increase, we believe may reasonably eliminate half the previous market. Thus, we think it is a reasonable but conservative estimate to assume 1,000 “rest of world” I-526 filings a year going forward (remembering that each approved filing represents almost three visas).

1,000 filings a year with a 90% approval rate, and 2.8 average dependent (the rest-of-world average), equals 2,520 “rest of the word” visas issued per year. Combined with 3,200 reserved visas, and 2,100 visas that go by right to the top three countries, this totals 7,820 visas used per year, leaving 2,180 unused visas.

Add China’s yearly 700 by-right visas and the Chinese backlog would receive 2,880 total visas per year.

At this rate, the Chinese backlog of 52,000 after 2025 would take 18 years to clear (52,000/2,880) after 2025, or 21 years from 2022. 

Again, this is educated guesswork, but these are assumptions we feel are reasonable.

A caveat for predicting backlog-processing wait times

When theoretical number-crunching exercises produce mind-boggling numbers (for example, 77 years to clear a backlog), we must remember a few key facts that render such extreme numbers untenable: people will die, children will “age out,” projects will fail, and Congress — we must reasonably assume — would have to step in at some point and make changes to the program if processing times were to take three-quarters of a century.

Also, the circumstances in EB-5 are ever in flux. So projecting that circumstances for one year will remain static for a decade or more is not likely to be realistic. This is the inherent limitation to projections. 

At the same time, we recognize that investors need some kind of approximate estimation based on available information. Thus, our projections, while striving to be as reasonable and data-based as possible, come with the caveat that, over time, circumstances, and thus wait times, are likely to change. 

The impact of reserved visas on the Chinese backlog

Without reserved visas, it’s interesting to remember that 1000 “rest of world” filings (resulting in 5,520 visas issued), combined with 2,100 by-right visas to the top three countries, would result in about 5,380 unused visas a year going to the Chinese backlog; combined with the 700 visas China gets by right, this would clear the backlog of 52,000 (starting in 2025) in about eight and a half years after 2025, or in about 11.5 years from 2022.

But — and this could be crucial if correct — much of what the Chinese backlog loses from the 3,200 reserved visas, it very likely gains back by reduced “rest of the world” EB-5 demand. 

If the rest-of-the-world demand drops from 2,000 I-526 filings a year to just 1,000, China would gain 2,520 visas a year (assuming a 90% approval rate and a multiplier of 2.8 for family members).

So losing 3,200 reserved visas but gaining 2,520 unused visas would result in just under 700 fewer visas a year going to the Chinese backlog. Not insubstantial, but a far cry from the loss of 3,200 visas a year some expect China to lose.

Of course, if rest-of-world demand approaches the recent trend of 2,000 I-526 filings a year (something we don’t expect), the Chinese backlog could grow by decades. 

One future element we can count on with certainty: pending Chinese investors will be very interested in future EB-5 filings and hope for the lowest numbers possible to provide the most unused visas to their country’s almost unimaginable backlog. 

Indian backlog and the visa wait time for new investors

Just as with China, India is over-subscribed to the EB-5 program and any new Indian petitioner who makes a standard investment (one that does not qualify for a reserved visa) must factor in the wait time for an available visa.

As of November 2021, there were 1,929 Indian applicants waiting for a visa at the National Visa Center (NVC) and an estimated 2,103 Indian I-526 petitions on file with USCIS, waiting to be adjudicated. With an estimated approval rate of 90%, and an average of 2.3 visas per approved Indian petition, this equals approximately 4,353 petitioners expected to be approved by USCIS. 

This totals 6,282 Indian petitions in line for a visa. With 700 by-right visas going each year to India, this means new Indian investors face a wait time of about nine years for an available visa.

This is similar to what Charles Oppenheim, former Chief of the Visa Control and Reporting Division at the U.S. Department of State, recently said; he believes over 7,400 Indian applicants are lined up for EB-5 visas as of November 2021 (Oppenheim did not seem to account for India’s lower-than-average number of visas issued per approved petition or denials). 

How the India backlog grew over the years

To use up the annual country-cap limit of 700 visas, India needs about 304 approved I-526 petitions (most recent data says 2.3 visas are issued for every approved Indian I-526 filing).

We can see by the following data that there are far more Indian applicants entering the line than leaving it — a clear sign the Indian backlog is growing substantially.

*Visa applicants estimated based on a multiplier of 2.3 visas for every I-526 petition

No extra visa help for Indians for a long time

The Indian backlog is a far different story than the Chinese backlog, not only because of the difference in the number of filings but the difference in when those filings were made.

Simply put, the Indian backlog looks to have begun in FY 2016.

But by FY 2016 there may have already been 30,000 or more Chinese filings. And Indian filings didn’t really explode till FY 2018, by which time the Chinese tsunami of petitions were already filed and in queue. 

So backlogged Indians cannot take advantage of extra unused EB-5 visas until the vast majority of the Chinese backlog is eliminated. Thus, India can only count on 700 visas a year to clear its backlog.

Vietnamese backlog and visa wait time for new investors

As of November 2021, there were 1,328 Vietnamese applicants waiting for a visa at the National Visa Center (NVC) and an estimated 1,006 Vietnamese I-526 petitions on file with USCIS, waiting to be adjudicated. With an estimated approval rate of 90%, and an average of 3.9 visas per approved Vietnamese petition, this equals 3,531 Vietnamese petitioners expected to be approved by USCIS. 

This totals 4,859 Vietnamese petitioners in line for a visa. With 700 by-right visas going each year to Vietnam, this means a backlog of seven years.

How the Vietnamese backlog grew over the years

To reach the country-cap limit of 700 visas, Vietnam needs about 180 approved I-526 petitions (most recent data says 3.9 visas are issued for every approved Vietnamese I-526 filing).

Vietnam first had over 180 I-526 filings (or about 200 visas with a 90% approval rate) in FY 2017. Vietnamese interest peaked FY 2018.

Similar to India, we see far more Vietnamese entering the line than exiting it to indicate the backlog is growing.

We can see by the following data that there are far more Indian applicants entering the line than leaving it — a clear sign the Indian backlog is growing substantially.

*Visa applicants estimated based on a multiplier of 2.3 visas for every I-526 petition

The Vietnamese backlog: third in line and no extra visa help

Given that the vast majority of the filings in the Chinese backlog occurred before Vietnam oversubscribed, it appears that all unused visas for the foreseeable future would only be applied against the older Chinese filings and none would go against the Vietnamese backlog. 

Vietnam, like India, can only count on 700 visas a year to clear its backlog.

Unused reserved visas — what happens to them?

In an unexpected development, the EB-5 Reform and Integrity Act of 2022 rolls over unused reserved visas from one year to the next:

II) UNUSED VISAS.— “(aa) CARRYOVER.—At the end of each fiscal year, any unused visas reserved for qualified immigrants investing in each of the categories described in items (aa) through (cc) of subclause (I) shall remain available within the same category for the immediately succeeding fiscal year.”

However, this carry-over within the same category is potentially very problematic.

Charles Oppenheim has recently admitted that this provision of the RIA conflicts with the older Immigration and Nationality Act (INA): “INA guidelines clearly state how unused numbers within a preference category’s annual limit should be made available to other preferences…. There likely will be a need for technical corrections… to clearly identify what is meant.”

A year-to-year visa rollover within the same employment-based category has not happened until now. While the EB-5 community would relish keeping unused reserved visas, advocates for other visa categories would see this new provision as being unfair. 

Time will tell if the visa rollover stands as written, but as of now, unused reserved visas in EB-5 will — according to the RIA — carry over to the next year. 

Summary

Even before the new legislation, EB-5 processing has been a moving target and was thus never easy to predict. Now with the EB-5 Reform and Integrity Act of 2022 implemented as law, many new provisions add further complexities and factors into an educated-guessing game.

Investors from non-backlogged countries only have to consider I-526 processing times and then adjustment-of-status or consular processing times.

In the recent past, petitioners with expedited processing have waited about three to six months to be adjudicated. And we have seen a petitioner who made an investment in 2022 with expedited processing receive I-526 approval after seven months.

We hope “prioritized processing” to be around a year, though that remains to be seen.

Thus, new EB-5 petitioners from non-backlogged countries could potentially have two viable paths to much faster I-526 petition processing: expedited or priority processing. 

At the moment, due largely to the pandemic we believe, USCIS is not efficient with adjustment of status or consular processing, but we hope this to change as the impact of the pandemic recedes — and possibly return to the six to 12-month processing times we saw just before COVID-19.

Concurrent filing also allows some petitioners already in the U.S. to enjoy Green Card benefits before I-526 adjudication. Thus, there should be reason for optimism for new EB-5 investors from non-backlogged countries.

New investors from China, India, and Vietnam, however, must — unless they qualify for the reserved set-asides — consider their country’s respective backlog to determine how long they must wait for an available visa.

While predictions are complex (especially for China), based on what we believe to reasonable assumptions we expect new petitioners in a standard investment from the backlogged countries to face these visa wait times: 

• China: 21 years 

• India: 9 years 

• Vietnam: 7 years

But thanks to the reserved set-asides new petitioners from backlogged countries could potentially have a visa available immediately after I-526 processing.

And combined with the possibility that rural prioritized processing (or expedited processing) could result in I-526 adjudication in perhaps a year or less, petitioners from backlogged countries could be looking at exponentially shorter wait times.

It’s a new era for EB-5 and while the wait times are not all yet clear, the mandate given by Congress to USCIS is: speed up processing for areas in need and the investors — and foreign capital — will come.

— Kurt Reuss, founder of eb5Marketplace

Special thanks to Suzanne Lazicki for her compilation of vital USCIS processing data on her “EB-5 Timing” page.

If you’re interested in discussing EB-5 investment options that may qualify for faster I-526 processing and for the reserved-visa set-asides, book a call with eb5Marketplace.