EB-5 Timing Issues and Visa Wait: Process and Data
October 13, 2017 13 Comments
[2019 Update: My post Forecasting Visa Availability: 5/6 Oppenheim projections and big picture (5/6/2019) provides perhaps a clearer big picture explanation of how the wait line works. 2018 Updates: see also my 4/8/2018 post EB-5 Visa Waiting Line and Visa Allocation and my 4/23/2018 post Visa Numbers (China, Vietnam, India, Brazil, S. Korea, Taiwan)]
How long does it take to get an EB-5 visa? Before we look at numbers, consider this picture illustrating variables in the EB-5 process from initial application to conditional permanent residence.
The investor files an I-526 and receives a priority date, goes through I-526 adjudication, and proceeds along with family members to I-485 status adjustment (if already in the US) or consular processing (if outside the US) in order to get EB-5 visas. The system has two major constraints: USCIS capacity to process petitions, and the annual quota on EB-5 visa numbers. These constraints have produced pile-ups of pending petitions and applications, illustrated by the green bins in the picture.
We have data for many parts of this picture, such as how many people are in each of the pending bins, the historical rate of receipts and approvals and denials, and the annual visa quota. The simplest way to estimate the visa wait line (the time from priority date to green card) is to add up the pending bins and divide that number by the annual quota. As there are currently 90,000+ people associated with the pending bins, and the annual EB-5 visa quota is about 10,000, the current total waiting line is 9+ years long. (Maybe longer, depending on assumptions about the other variables). As recently as mid-2014, the line was only about three years long (as we know from the Visa Bulletin, which indicates that China-born investors with June 2014 priority dates started getting visas in May 2017).
Calculating the actual visa wait time for any given person is complicated. Where is that person in line, relative to other pending petitioners and applicants? Is that person from China (which is oversubscribed and subject to a per-country limit) or from an undersubscribed country that’s free to take the first available visas? How have/will other process variables such as per-country receipts and approval rates change over time and affect calculations?
If I were someone born outside China considering EB-5 now, I’d feel good about the per-country limit that allows me to skip ahead of most China-born applicants in line (i.e. about 87% of the line). For me, the time IPO takes to process I-526 is the major factor in my total wait time.
If I were a China-born prospective investor, I’d look at everyone in line ahead of me, and also try to estimate how many queue-jumping non-Chinese may enter from behind in the time I have to wait. That calculation could add years to the potential wait time, well exceeding 10 years, if the number of non-Chinese investors increases dramatically in the future and IPO processing speeds up. Or future circumstances could quell new EB-5 demand, encourage existing applicants to drop out, or apply the per-country limit to other countries, improving the wait time for China-born investors who stay in the system.
All past investors should consider the significance of the visa quota constraint and the possibility that it will change. Indeed, it could change for the better. For example, if the State Department recognizes that Congress intended the 10,000 visa quota to apply to 10,000 investors, not investors plus family members, this would loosen the constraint and cut about six years from the current visa wait time. Unfortunately, quota reduction is also a live possibility. Industry lobbyists are reportedly considering legislation with visa set-asides that would reduce the generally-available annual EB-5 quota from 10,000 to 7,000. This could be disastrous for past EB-5 applicants, adding about four years to the wait time. Visa set-asides have emerged as a compromise between the Senator Grassley camp, which wants to incentivize rural/urban-distressed investment somehow, and certain regional centers, who resist an incentive based on a significant investment differential that would make their future prosperous urban projects uncompetitive. Tying the TEA incentive to visa set-asides rather than reduced investment would allow regional centers to keep attractive terms and options for future investors. Their past investors would suffer, but that cost seems not much counted. (My impression of the current legislation discussion comes from this webinar and this article.) Of course, maybe protections for past investors will be added to the legislation, or maybe there won’t be any deal and we’ll get new regulations instead. The regulations could significantly reduce new EB-5 demand, which would hurt the industry but benefit people who stay in the current visa queue.
And now, let’s get to the numbers. I’ve expanded and improved my backlog calculation spreadsheet, which now has multiple tabs that compile all the data I can find on each variable influencing the visa wait time for an EB-5 conditional green card. Keep the spreadsheet link, as I will update it whenever new inputs become available. (For those who don’t face backlog issues, see my posts on I-526 processing times Part I and Part II to help estimate the time between you and conditional permanent residence.)
Summary of EB-5 Visa Wait Time Variables
- I-526 petition variables
- Number of petitions currently pending
- Future petition filings
- Number of petitions by country (how many China-born, how many born outside China)
- Percent of petitions that will be denied or withdrawn
- Number of family members to be associated with each petition
- Time USCIS takes to adjudicate petitions
- Investor’s priority date relative to others with pending petitions
- The extent to which USCIS follows its first-in-first-out policy when adjudicating petitions
- Visa application variables
- Number of I-485 adjustment of status applications for EB-5 pending at USCIS
- Number of EB-5 visa applications pending at the National Visa Center
- Number of pending applications by country (how many China-born, how many other)
- Percent of applications that will be denied or withdrawn
- Political factors
- Whether the rules and interpretation for the EB-5 visa quota remain unchanged
- Whether new legislation introduces visa-set-asides that would reduce the annual visa quota generally available
- Whether the regional center program remains authorized, and the impact of a sunset on investors in line for a visa
- Whether new regulations or legislation include features that would change demand and/or affect past applications
Additional Reading
- White Paper: Solutions to the EB-5 Visa Waiting Line by the AILA EB-5 Committee
- Numerical Limits on Permanent Employment-Based Immigration: Analysis of the Per-country Ceilings by the Congressional Research Service
Benefit from this blog? Please consider supporting the effort behind it. As the EB-5 industry changes, your contribution can help preserve this space for conscientious and freely-available EB-5 reporting. Donations go to Lucid Professional Writing (a for-profit business) to fund work on this blog. Thank you!
EB-5 Updates 
Thanks again Suzanne for the in-depth write-up.
Are you aware of any, or do you think it makes sense to create crowdsourced trackers for I-526 and I-829 applications on your blog?
(I was thinking of something similar to these trackers: http://www.trackitt.com/usa-immigration-trackers)
I’ve wanted something like this! I tried opening a discussion forum, but it doesn’t offer a way to compile case info in a table. Ideally one could make something like the trackitt log that would allow individuals who are tracking large groups of cases to easily upload info on all of them. If you find or start a good tracker, let me know and I’ll link to it from this blog.
Thank you very much for all the info you share on EB5. It is truly insightful.
One variable that might also impact is the interviews that USCIS was suppose to start conducting for I-485 AOS applications. Is it applicable for I-485 applications based on approved I-526 as well ? Or is it only for EB2/EB3 categories ? Curious to know at which stage, if at all, investors would have to attend interview ? Thank you !!
I understand that I-485 interviews have been specifically targeted to EB-1, EB-2, and EB-3, but are a possibility for EB-5. See this article https://wolfsdorf.com/blog/employment-based-green-card-interviews-coming-learned-ombudsmans-teleconference/.
Between the set-aside and USCIS regulation (price increase without set-aside), the set-aside would kill the industry because set-aside would completely kill China market after a brief celebration. Price increase with no set-aside will save China market, and consequently the industry.
If set-aside were approved, let’s say 3,000 visa per year for rural and urban priority area, then the first year’s 3,000 visa would probably be absorbed by Chinese investors within a month. 3,000 visa is really only 1,000+ petitions. Within a year, wait-time for “set-aside” Chinese investors might hit 10+ years as well. The industry might be able to sell 10,000 more spots in China for the first year or so, at the expense of exhausting any meaningful demand from that market. Without China market, the industry would have to compete within a much smaller non-Chinese market. Keep in mind, price would most likely increase, set-aside or not. A market without China after price increase? Probably less than 1,000 units/petitions – not enough to feed one big RC.
If we exclude investors who were misled to believe wait time is only 6-8 years, current demand from China is almost zero.
Let’s take a look at the other scenario. USCIS regulation (no set-aside with price increase) would benefit the industry after a “Great Pause” in China market. After price increase, new demand will drop significantly. Backlog over the last few years will be worked out slowly but steadily. After 2-3 years, wait-time for new Chinese investors would most likely go back to 7 years. If at that time, annual demand is still under 10K, wait-time will continue to shorten. Once the wait-time (for Chinese investors) shortens to a “goldilocks/optimal” time, let’s say 5 years, EB-5 industry would reach equilibrium,i.e. demand – 10,000 visa. supply 10,000 visa. This is the advantage of EB-5 over other visa categories, the ability of adjusting price. With the right pricing, wait-time and demand can be managed.
Think about it this way, if USCIS were able to increase price to $1mm three years ago, then the industry wouldn’t need to experience this headache. This is a classic under-pricing problem caused by market inefficiency (public sector wasn’t able to respond quick enough) that can be written into textbook as a case study.
So let’s take a look at the two options again:
1. set aside plan: first year 30,000 visa, 2,000 visa following years, with the risk of being sued by existing investors for violation of fiduciary duties – GP are promoting for the benefits of themselves rather than their clients.
2. no set-aside with price increase (USCIS regulation) – 2,000 visa the first year. steady annual increase of Chinese investors until annual demand hits 10,000 visa within five years.
To most people, #2 is better, and more ethical. It’s not easy to change career…
NOTE – This analysis is based on the assumption that demand from China cannot be replaced by any other markets. With a 5-year wait-time to Chinese investors, market share from China would still be around 70%.
Thank you for this comment! I agree, and I wish you would share your wisdom with EB5 Coalition.
Unfortunately, “Happy” may finally find EB-5IC will not take what he proposed ethical option. They have their own “business ethics”.
Indeed, my comment should have been “I wish you could share your ethics with EB5 Coalition”
Thank you for your comments, Suzanne and Sad. I simply want to suggest that there is a good chance that the set-aside would kill the China market and doesn’t really make long-term economic sense. The only scenario that a set-aside may benefit the industry is to make the set-aside visas much more expensive than none set-aside visas, for instance, $1.5mm for set-aside and $500K for none set-aside. This way, the industry may achieve maximum volume – sell all 10,000 visa per year. I don’t think anybody would accept such a proposal. I still have a lot of faith and confidence in my fellow citizens.
In reality, many people are promoting or get ready to promote none EB-5 products to immigration agencies, in order to survive the coming drought. So I guess they don’t really care that much about these proposals.
Hi, Thanks for a great post and calculation spreadsheet again. I cannot claim to have understood all your calculations and their basis, but I wanted to see the final conclusion in the sheet called “Projections”. I was disappointed that the numbers there were not clear due to the formatting. It says “Estimated years to grant visas to all people already in the system = 9.1” and “Estimated years to grant visas to non-Chinese already in the system = 1.2” but I could not read the line below that. Could you please check?
Also, does your calculation mean that a non-Chinese person will need to wait 1.2 years after adjudication of I-526 just for the grant of the visa?
The formatting looks clear on my side. You might try to download the file and then read it, rather than looking at the file online. Then it’s easy to view the formulas, change fonts as needed, and try re-calculating based on your assumptions. The last line on tab 5 estimates the time for all pending I-526 to reach the visa stage, which is important since many of the non-Chinese “in the system” are still waiting for I-526 approval, and thus not yet presenting for visas. My time calculations are from priority date, not from I-526 approval. So even if the visa wait for non-Chinese were 1.2 years, they wouldn’t notice it since I-526 adjudication takes longer than that.
Susan ,
While these petitions are pending , what is the impact of Visitor/Student Visa Applications on the petition .
Some of the investors would like to come and visit the investment( not permanently) , Would USCIS consider the visit requests favorably for business visa ?
Specially if the investor is engaged in direct EB-5 , and their participation in business meeting for policy making for the company is required?
I’m not an expert in immigration law generally so not sure about the interaction of EB-5 with other visa categories. This would be a good question for a lawyer. You could try posting it here: http://www.eb5investors.com/qa/ask