EB-5 Visa Waiting Line and Visa Allocation

People who use EB-5 face some tough facts:

  • Demand for EB-5 visas (annual I-526 filings) has been three to four times higher than EB-5 visa availability since 2011, resulting in a backlog now about a decade long. (For those not already familiar with the situation, here’s a simplified explanation.)
  • New investors from most countries today can still expect to receive a conditional green card fairly promptly after I-526 approval, but only due to exceptions that will allow their applications to skip ahead of (push back) other people stuck in the backlog. (Or the overall wait could be shortened if the visa quota changes, or many people drop out of line.)

We respond to these facts by (1) advocating for backlog relief (AILA’s White Paper: Solutions to the EB-5 Visa Waiting Line gives suggestions), and (2) figuring out how the exceptions work, because investors and projects want to avoid a decade-long wait if possible.

The past few years offered a simple exception that allowed jumping much of the queue: be born outside China, since China accounts for most of the backlog and was the only oversubscribed country. Now, people from Vietnam face getting stuck in the visa wait line behind the Chinese (the May 2018 Visa Bulletin will have a Vietnam cut-off date), other countries wonder whether the same could happen to them one day, and Congress threatens set-asides and other changes to visa availability. And so we feel the urgency to understand just how visa allocation works, and relevant numbers.

First, here’s the law related to EB-5 visa allocation, with linked citations. (Or you can download my Word doc to get the text with headings to assist navigation.)

  1. The annual worldwide level for all employment-based (EB) immigrants is effectively 140,000. INA 201(d)(1)(A)
  2. At most 7.1 percent of the employment-based worldwide level is made available to immigrants in the EB-5 category. INA 203(b)(5)(A)
  3. Available EB-5 visas are issued to eligible immigrants in the order in which the immigrant petition was filed. INA 203(e)(1)
  4. At least 3,000 EB-5 visas are reserved annually for immigrants based on investment in a Targeted Employment Area. INA 203(b)(5)(B)
  5. 3,000 EB-5 visas are set aside annually for immigrants based on investment in a Regional Center. PL 102-395 Section 610(b) as amended by PL 105-119 Section 116(a)
  6. The EB-5 visas made available to natives of any one country may not exceed 7 percent of the available worldwide total. But if one or more countries gets held back by this rule, resulting in available visas with no one else to take them, then those remaining visas can be made available again without regard to per-country numerical limits for that year. INA 202(a)(2) and INA 202(a)(3) and INA 202(e) and PL 106-313 Section 104
  7. EB-5 visa numbers available to China annually under the per-country limit are reduced by 700 to compensate for cases processed under the Chinese Student Protection Act of 1992. PL 102-404 Section 2(d)(B) [Comment: It’s not obvious when this compensation is/was already complete; if the CSPA off-set does still remain in effect now, then Chinese start the year with (9,940*0.07) – 700 = -4 EB-5 visa numbers available to them.]

I imagine Charlie Oppenheim at the Department of State, sitting at his desk on October 1, 2017 with 30,000 EB-5 visa applications before him and tens of thousands more to come as USCIS approves pending I-526. How does he apply the above rules to decide who gets a visa in FY2018, and in what order? I hope he addresses this question during his keynote speech at the IIUSA EB-5 Advocacy Conference on April 23. (4/25 update: here are notes from Mr. Oppenheim’s presentation.) In the meantime, here’s my understanding of how the rules get applied in practice.

  • #1 and #2 above give the target quota for EB-5 visa numbers in one year: 140,000*0.071=9,940.
  • #3 specifies the basic rule of order: first-in-first-out by priority date (applicants with oldest I-526 priority dates are first in line for a visa)
  • #4 to #6 are factors that can override the basic FIFO order principle. The applicant with oldest priority date gets the first visa number unless she’s held back by:
    • #4) being the 6,941st+ applicant that year (9,940-3,000) who invested outside of a TEA, in which case she’s held back for any TEA-based applications to go ahead (thus far, non-TEA applications have been too few to trigger this set-aside)
    • #5) being the 6,941st + applicant that year who invested outside of a regional center, in which case she’s held back for any regional center-based applications to go ahead (thus far, direct EB-5 applications have been too few to trigger this set-aside)
    • #6) being the 696th+ applicant that year (9,940*0.07) from a single country, in which case she’s held back for any applicants from not-oversubscribed countries to go ahead (China has been oversubscribed and triggered the per-country cap since 2015, and Vietnam will as of May 2018)
  • #6 does not mean that 7% of visas get set aside annually for each country in the world. It does not mean that any one country gets only 7% of visas annually. #6 just means that any one country’s allocation gets capped at 7% so long as other countries are also competing to use up available visas. When other countries aren’t competing, then any visas still on the table get allocated to the waiting line in FIFO order without regard to per-country limits. So in 2017, China in fact got 75% of visas: 7% plus the 68% of visas that remained after numbers had been allocated to qualified applicants from other countries. (Or maybe only the remainders, if the Chinese Student Protection Act in fact took the first cut.)
  • When total demand promises to exceed total available visas for the year, then DOS looks at individual countries to see which look likely to exceed the 7% per-country cap, and sets a cut-off date or final action date for each of those countries. When a cut-off date is in place, only people from that country with priority dates earlier than the cut-off date can proceed with visa applications; others are held back. DOS gradually advances the cut-off date to release just enough people to apply for available visas.  At the beginning of the year, different oversubscribed countries can have different cut-off dates. When each country is getting its 7% of visas for the year, DOS looks at each country individually when setting the cut-off dates. When per-country caps have been met, then all oversubscribed countries are just competing together for remaining EB-5 visas left by not-oversubscribed countries. That means they are all in the same line again and will have the same cut-off date. (In practice that puts China at the head of the line for leftover EB-5 visas, since it’s been held back for years and thus its applicants have the oldest priority dates. Vietnam will start being held back in 2018, and its more recent held-back applicants will find themselves behind many longer-pending Chinese applicants. If India or Brazil get held back next, their still-more-recent applicants will find themselves behind both China and Vietnam in the competition for leftover visas. )
  • Exceeding the 7% cap is scary because it puts a country in the same line as China for leftover EB-5 visas, and near the back of that line based on priority dates and the FIFO process. The saving grace for small countries is that they can at least get 7% of EB-5 visas every year, and probably won’t exceed that cap by very much. If I’m a Vietnamese applicant held back this year, I’ll be one of the older Vietnamese applications next year and thus well-placed to get one of 700 new EB-5 visas available to Vietnam then. What I can’t expect is to get an EB-5 visa left over after not-oversubscribed-countries took what they want, since tens of thousands of Chinese have earlier claim on any leftover visas. But small excess = small backlog = small need to compete for leftover visas, thus relatively short wait time. As an Indian, I’d be a bit more concerned and vigilant. India hasn’t had high EB-5 numbers before, but the companies that helped create the China backlog with giant EB-5 raises have turned to India. If Indians flock to big raises seeking 100s of investors, then they will end up needing many more than 700 visas per year,  thus creating a significant India backlog that needs leftover visas but won’t get them for ages because behind the earlier China/Vietnam backlog plus squeezed by any new rest-of-the-world applications.
  • Visas can only be issued to people with complete visa applications ready, not to people with I-526 investor petitions still pending at USCIS. But it’s important to keep an eye on I-526 petitions – on number of receipts, petitioner origin, adjudication speed, approval rates – to estimate how many of those petitions will become visa applications, and when. New visa applications from not-oversubscribed countries immediately reduce the number of leftover visas available to pending applicants from oversubscribed countries. New applicants from a country near the 7% cap could tip the balance into cut-off dates and backlogs for fellow-countrymen already in line. A major decrease in I-526 filings or increase in denials or withdrawals would reduce incoming pressure on the visa backlog, and shorten wait time projections. Estimates are tough with all these moving parts and limited data, but we must try. The China backlog ballooned quickly and came to many investors (and their projects) as a nasty surprise. They didn’t realize how many other Chinese investors were already in the system or entering at the same time, and what that would imply for future visa wait times. A cautionary tale.

To facilitate analyzing numbers relevant to country-specific visa availability, I’ve added a tab titled “Country Focus” to my ongoing Backlog Calc Excel file. (The numbers aren’t new, but highlight significant previously-reported I-526 and pending visa data. I even made a cartoon to assist in visualizing the numbers. The thumbnail image here gives a teaser of the new Excel tab.) I don’t offer conclusions, but information to assist your conclusions.

Additional reading:

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!

About Suzanne (www.lucidtext.com)
Suzanne Lazicki is a business plan writer, EB-5 expert, and founder of Lucid Professional Writing.

43 Responses to EB-5 Visa Waiting Line and Visa Allocation

  1. LK says:

    Sorry in your first paragraph, you mentioned that the visa wait is like a decade now.
    Are you saying when an applicant submits his I-526 today as of Apr 2018, he will get his I-526 approved and possibly get I-485 adjucated in year 2028 regardless of the country? Or are you saying from I-526 filing to getting I-829 approved?

    • The first section points out that the people in line for a conditional green card could take 10 years’ worth of green cards. Whether an individual will wait more or less than ten years between I-526 filing and visa interview or status adjustment depends on that individual’s nationality and place in line.

      • LK says:

        Got it. I am Korean who filed in Aug 2016, still waiting for my I-526. In your Excel file it said end of March 2018, but no news yet so crossing fingers. If I get my I-526 approved and possibly get a conditional green card by this year, would non-Chinese non-Vietnamese like me still take about 10 years or more like 5 years based on your database? I was able to dechiper your I-526 estimation but haven’t got into I-829 yet since it is far away from me. Thanks.

      • So long as Korea stays below the 7% cap (as I expect it will continue to do) then you wont face much of any wait for conditional green card (besides the USCIS processing time wait) because you’ll skip ahead of all applicants from oversubscribed countries (ie most of the visa line) when you get to that point.

      • Kishore says:

        I highly doubt anything will happen with Petitions. Congress hasnt budged in the last 20 years to make changes to immigration bills. Demand greater than Supply. Only thing that can push is reduce processing time. Its almost ridiculous that they take 2 years to process a EB-5 case while family based petitions are processed is less than a year.

  2. Chinese investor says:

    As of today the White House petition filed by Chinese investors, has reached 100,000 signatures. The administration has to respond within 30 days. The chance of that influencing legislative decision is essentially close to zero, but it is a great practice to raise civil right awareness among investor groups and educate more investors with regards to the current EB-5 situation. I was in fact shocked by how mobilized and motivated these investors were in the past 3 weeks.

  3. Hi Suzanne,
    This is the Best informative article to addresses current situation with probable implications of EB-5 Visa waiting line and possible Visa allocations that one might expect for once application with once visa objectives.

    As always, appreciating your EB-5 informative article which helps every reader of your blog to understand, ” How does EB-5 Visa Waiting line and Visa allocation probabilities might impact for once application and calculate possible waiting time for getting once visa done for those who are either applied under oversubscribed countries or will be in the process of upcoming oversubscribed countries quotas.”

    As always Great Job with Great supporting information for which you are the BEST.

    Thanking You!

    With Best Regards,
    Sagar Jalgaonkar.

  4. happy says:

    Thank you. This is an absolutely important topic!

    While it is great that you look at the “Number of EB-5 Visa Applications Pending at NVC by top countries & priority date” in the projection tab, it is a LAGGING INDICATOR that significantly underestimates the growing demand from countries outside China since 2015. IIUSA seems to track I-526 petitions by country. Their report shows that there were 2,325 I-526 petitions from non mainland Chinese investors in FY2016, reflecting approximately 6,000 visa. Because each country can only have 700 visa a year, those exceeding 700 visa per country will not be able to claim their visa In that year. For instance, if the annual visa applicants from Vietnam is 1,500, 800 visa will be excluded from the 6,000 visa pool for non-mainland Chinese investors. So, let’s say, only 5,000 out of the 6,000 visa can be claimed by non-mainland Chinese investors per year. Therefore, roughly 4500-5000 visa can be claimed by mainland Chinese investors per year, if the current market demand by country stay the same.

    So, it is probably make more sense to assume 50%, instead of 70%, as the percent of visa available to Chinese investors. It can get worse to Chinese investors if we spend more marketing dollar to explore other markets (as I am planning to do), and if demand from H1B holders for EB5 increases. If we have a set-aside, wait time for Chinese investors may become infinite.

  5. Seeker says:

    Why doesn’t the USCIS publish data for every country periodically on the I-526 filings, clearances (accept/reject) and pending; Visa numbers; I-829 petition filings, clearances and pending? What stops them from doing this, leaving people to play their own guessing games?

  6. Rommy says:

    Thank you for posting these details. I know that FY17 I 526 per country data is not available yet but based on existing data , when do you think India will have cut off date ? and I think even if India gets the cut off date ,dates will move forward quickly in each month.Is that correct assumption based on your experience ?

    • India had 354 I-526 receipts in 2016, which looks like enough by itself to become 700+ visa applications and trigger the per-country cap. So the cut-off date could be next year, if USCIS gets most 2016 petitions adjudicated in 2018. If USCIS continues to be as slow as it has been with I-526 adjudication, then India won’t need to worry for awhile about the visa application stage. I read so much about India demand that I suspect Indian I-526 filings could be much higher in 2017 and 2018. The higher the volume, the more slowly dates would advance. But this is all speculation.

      • Jai says:

        My apologies but I read this comment numerous times and am very confused about how slow USCIS processing times is beneficial to Indian investors. Can you please help me understand this?

      • I didn’t mean that slow processing time is beneficial to Indian investors per se. It just slows the rate at which Indian investors reach the visa application stage, which means it defers potential backlog at the visa stage.

      • Kishore says:

        What has number of filings got to do with cutoff dates. Isnt it theoretical that the visa numbers only matter at i-485 filing and considering that USCIS is taking 2-3 years to adjudicate i-526 those 354 applicants for 2016 will not approved in the same calendar year. So ineffect the cutoff trigger wont happen until there is sharp increase in i-526 approvals for india.

      • The issue is that anyone who has filed I-526 is technically in line for a visa, even though they’re not at the visa application stage yet. Chinese investors got surprised by ending up in 10 year line because many only looked at the visa backlog at the time they filed I-526, not thinking about how much visa applications would be increased by incoming I-526 approvals.

      • Rommy says:

        I see that cut off dates for Vietnam and China are same for May , if it stays same till Sept , My understanding from this article is , left over visa will be distributed equally between these 2 countries, is that correct assumption ?

      • That is not correct. As I attempt to explain in my post, leftover visas will be distributed to petitioners from Vietnam and China in order of applicants’ priority dates — oldest first. Because there are very many pending 2014 applications from China (nearly 13,000 as of 11/2017) and those from Vietnam are mostly 2015 or later, nearly all leftover visas this year (and probably the next couple years) will go to Chinese applicants.

  7. AmyB says:

    Hi Suzanne

    This is the best and most informative EB5 blog I have come across and find it very helpful. Do you know when would the pending i526 EB5 numbers for 2017 come out? Also in your backlog excel file you mention there are 307 pending i526 visas for India, but in one of the blogs here I saw there were 356 i526 filed from India in 2016. Do you know how the pending i526 in 2017 is lesser than the number of filed applications in 2016?

    Thanks
    Ameeta.

  8. Vlad says:

    Hello Suzanne and others. I check I-526 processing time page very often. With the new system, I noticed that they don’t publish actually last update time of processing page. They just wrote it will be around 15th every month. Previous system showed when page was actually last updated.

    Now I noticed that on this page there is slight change in times compared to previous times. Previously, Case inquiry date was August 12 2015, now it is August 13 2015, all the rest seems the same. I am wondering what does it mean? Did they perform new April monthly update and only made this change, while 25 to 32.5 months did not change? But in this case, shouldn’t they move case enquiry date by about a month forward to September?

    It would be nice if they add information when the page was actually updated with new monthly statistics.

    • In my observation, the Case Inquiry Date in the new-style report has advanced by one day every day for each form. I guess that this happens automatically. Around the 15th of the month, I’ll expect to see a more significant, intentional update, with new “estimated time range” and maybe a jump in the Case Inquiry Date.

  9. Marco says:

    Hi Suzanne, first I would like to congratulate you on the wonderful job you do keeping us well informed and making things more “understandable” for most of us. Regarding the backlog issue, I am an investor from Brazil with a priority date of September 2016. Due to the numbers of petitions filled by Brazilians in 2015 and 2016 I agree with you that we are probably on the verge of a cut off. I am aware that many Brazilians who filled their petitions are already living in the USA under different visas and will aply for a Change of Status, therefore I ask if these people who will not go trough a Consular process will impact the available Visa numbers ?

  10. Abhishek Saraf says:

    Hi Suzanne,firstly thanks for your wonderful work.I wanted to know by when should we expect the report of I 526 processed in 1st quater of 2018.

  11. IGBOT says:

    hi Suzanne,

    Thanks for your tremendous work behind this blog.

    I’m a Vietnamese investor. From Visa Bulletin May 2018, Vietnam is set a final action date of Jul 2014. I understand it as all visa for fiscal year 2018 (October 2017 – September 2018) allocated for Vietnam (696 visa) have been issued to Vietnamese EB5 investors. Starting October 2018, visa allocated for Vietnam will be reset. Do I understand it correctly?

    • It’s also my understanding that on October 2018, Vietnam will once again have at least 696 visas available, which means that Charlie Oppenheim will move the Vietnam cut-off date sufficiently to release enough Vietnam applications to claim those available visas. Apparently Charlie has enough Vietnam applications pending that he doesn’t foresee being able to move the Vietnam date all the way up to “current” at that time. The Visa Bulletin says “It can be expected that the Vietnam Employment Fifth preference category will remain subject to a final action date for the foreseeable future.”

  12. Vietnamese Investor says:

    Hello Suzanne,

    It is highly appreciate your work & analysis on this Blog.

    Could you please clarify below 2 numbers in your BacklogCalc.xls

    EB-5 Applicants Pending at the National Visa Center as of October 12, 2017

    For Vietnam : 672 Applicants (Principle Applicants)

    but
    Actual EB-5 visa applicants pending at NVC as of 11/2017

    For Vietnam: 649 Visa applicants (Including spouse & kids)
    (https://travel.state.gov/content/dam/visas/Statistics/Immigrant-Statistics/WaitingList/WaitingListItem_2017.pdf)

    So number 672 is applicants or visa applicants (including spouse & Kids)

    Thanks,

  13. Maulesh on Air says:

    Susan ,

    This is incorrect analysis . If this was the case rest of the world Eb-2 would not have been current . Since India and China are both backlogged .

    If two countries get backlogged that’s due to they using the 7% of their own quota .

    • Thank you for the input! Please quote which part specifically of my analysis is incorrect, so I can review it.

      • Maulesh on Air says:

        “If India or Brazil get held back next, their still-more-recent applicants will find themselves behind both China and Vietnam in the competition for leftover visas. Triggering the 7% cap is scary because it puts a country in the same line as China for leftover visas, and near the back”

        In this case please look at EB-2 for China and India both oversubscribed , but China is ahead of India from years in terms of priority date for 485 .

        And isn’t per country cap is by each category first and not the whole EB ? We have seen this in waterfall of visa numbers as long standing rule .

      • I was speaking just about the EB-5 category, not all of EB. Leftover EB-5 visas after the per-country cap are issued in order by priority date, oldest to youngest, so having a more recent priority date means being further away from getting a visa, ie further back in line.

        Here’s how I’ve understood the process specifically: At the beginning of each year, when DOS has about 700 EB-5 visas to distribute to each oversubscribed country, then Vietnam will have a more recent Final Action Date than China, and recent Vietnamese applicants can get visas concurrently with older Chinese applicants. But when the per-country caps are reached, then China and Vietnam go back to being in the same line with the same Final Action Date, and the oldest priority dates will be at the head of the line to get one of the about 10,000 available visas.

        Am I understanding correctly/explaining clearly? I tried editing the post to make the language less ambiguous.

  14. Abhishek Saraf says:

    I am an Indian investor filed in Septenber 2016.By when based on current senario i should expect to get my I-526.

  15. happy says:

    I am wondering if it would be possible to create a “rust-belt residence program” to help the long wait and to spur economic development in the underserved areas. Let the left-behind investors and left-behind communities help each other! Any EB-5 investors who have received I-526 would be eligible. Investors will have to live, study, and work in these states until they receive their greencard. Right now 50% of the investors choose to live in CA. I think Canada has province-based immigration programs.

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