Understanding the Visa Bulletin

UPDATE: See my more recent post: Interpreting the Visa Bulletin (5/29/2020)

— ORIGINAL POST —

The forthcoming Visa Bulletin for July 2019 includes an EB-5 final action data for India for the first time, and no change from June to the EB-5 final action dates for China and Vietnam.

Chart A. Final Action Dates for Employment-Based Preference Cases [excerpt from July 2019 visa bulletin]

Chart B. Dates for Filing of Employment-Based Visa Applications [excerpt from July 2019 visa bulletin]

For people who want to understand these charts, I suggest: ignore us bloggers and read the visa bulletin itself from top to bottom. Department of State takes care to explain clearly what the dates and charts mean, and what to expect going forward. The internet, on the other hand, is currently awash in confusing and faulty information.

So read the bulletin, and try this quiz. Are the following statements true or false?

1. The EB-5 category is current, and expected to remain current, for everyone except applicants born in China, Vietnam, and India. Current means that EB-5 visa numbers can be issued to all applicants as soon as they are qualified, with no wait for visa availability.
2. During July 2019, India-born EB-5 applicants abroad can still continue to submit documents to NVC regardless of priority date, but only those with priority dates before May 1, 2017 can receive visas.
3. During July 2019, I-485 can be neither filed nor approved for India-born EB-5 applicants with priority dates more recent than May 1, 2017.  Those with priority dates before May 1, 2017 are free to file I-485 and may receive visas.
4. In general, I-485 filings must follow the Final Action Dates in Chart A, not the Dates for Filing in Chart B, unless USCIS specifies otherwise on its www.uscis.gov/visabulletininfo page.
5. During August and September 2019, Department of State does not expect to issue any EB-5 visas to India or Vietnam. It expects to use up 2019 visas available to those countries in July. It’s possible that a few more EB-5 visas may be issued to China-born applicants in August and September.
6. A final action date in the July 2019 visa bulletin means that DOS counted up known qualified applicants of June 6, 2019, and determined that qualified applicants exceeded the number of visas available for the year. Known qualified applicants include people documentarily qualified at the National Visa Center and adjustment of status applicants, as reported by consular officers and USCIS.
7. The final action date for India means that May 1, 2017 marks the head of the line of Indian applicants who can’t yet move forward with the visa process. It means that  DOS thinks it has only enough 2019 EB-5 visas left to accommodate currently-qualified Indian applicants with priority dates of April 30, 2017 and earlier.
8. When 2020 visas become available in October 2019, then the final action dates for Vietnam and India will move forward again. In October, Department of State expects to start issuing EB-5 visas to Indians with priority dates in summer or fall 2017, and to Vietnamese with priority dates in fall or early winter 2016.
9. The July 2019 visa bulletin applies to July 2019. While it’s still June, we operate under the June 2019 visa bulletin, which has no final action date for India.

The above statements are all true, according to the visa bulletin.

1. Answered in the Visa Bulletin Chart A (in the Employment Based section) and Section G (near the bottom of the page)
2. Answered in the Visa Bulletin Chart A and B (in the Employment Based section)
3. Answered in the Visa Bulletin Chart A and B (in the Employment Based section)
4. Answered in the Visa Bulletin opening paragraph #2
5. Answered in the Visa Bulletin Section F and G (near the bottom of the page)
6. Answered in the Visa Bulletin opening paragraphs
7. Answered in the Visa Bulletin opening paragraphs
8. Answered in the Visa Bulletin Section F and G (near the bottom of the page)

And to again combat a persistent and pernicious misconception, a reminder: today’s visa bulletin does not provide a visa time estimate for today’s investors.

Here’s a story problem. Let’s say you enter an office and pick a number that determines when you’ll be served. The office had opened at 6 am, and started issuing numbers at that time starting with number 1. The office can serve about 700 people per hour, and has been operating at capacity since 6 am. When you arrive, you get number 5,852.  While you were arriving, the intercom was announcing, “now serving #1,750, Fred Smith.” How do you calculate when you will be served? Which information provided is relevant to solving the problem?

The simplest answer is 5,852/700=8.4.   6 am + 8.4 hours = 2:24 pm for expected service. The intercom announcement when you walked in the door is irrelevant to your time. Fred’s wait time does not bear on your wait time.

A guy at the door may point to the intercom and reassure you “Don’t worry, the wait won’t be long. Listen, Fred Smith is already getting service and it’s only 8:30 am – so the wait must be 2.5 hours at most.” Ignore that guy. Your time of service results from the time it takes to process the 5,851 people who got into the office before you did. Your wait time is unlikely to match the wait of someone with 1,749 people earlier than he was.

Now to align this analogy to EB-5. A couple months ago, Charles Oppenheim estimated that there were 5,851 Indians in line for EB-5 visas as of May 6, 2019, and therefore an India-born investor entering the end of that line on May 6, 2019 would wait 8.4 years for a visa. The wait time for someone with a May 6, 2019 priority date is determined by the time it takes to move the applicants with earlier priority dates through the system at a rate of approximately 700 per year. Today’s visa bulletin announcement is irrelevant to the 2019 investor’s wait time. Someone will say “Don’t worry, the wait won’t be long. Look, the July 2019 Visa Bulletin says the Indian applicant with April 2017 priority date can get a visa in July 2019 – so apparently we’re looking at a modest visa wait of 2.5 years.” Ignore that. The wait time for the person with a 2017 priority date does not translate to someone entering with a 2019 priority date at the end of a larger backlog.

Consider the May 2015 visa bulletin, which gave China its first final action date of May 2013. “Just two years to wait, not bad,” thought some new investors, and the market continued to flourish in ignorance. But Chinese who invested in May 2015 are still not even close to getting a visa now, four years later. The May 2015 visa bulletin gave a wait time for May 2013 petitions, not for May 2015 petitions. China-born investors in May 2015 needed to know, instead, the size of the China backlog in May 2015, and the number of visas available going forward.

Back to India, what can we do with this equation: 5,852/700=8.4

8.4 years is not a good number for marketing to India. Many would say that’s too long to wait for conditional permanent residence, and creates too much risk from material change and redeployment during the wait time. And the time has only been getting longer as more people have invested and added to the backlog.

We need a result less than eight years, which means that the numerator (5,851+applicant backlog) needs to be smaller, or the denominator (about 700 visas per year)  needs to be larger.  Some promoters with knowledge of the market make the numerator smaller by asserting that Department of State/USCIS have unreliable data that overestimated the number of people in the backlog. These promoters estimate that the true backlog is at least 50% smaller, and wait times thus at least 50% shorter, than estimated by Charles Oppenheim. The numerator will become smaller if many past investors give up or lose eligibility over the course of the wait time. Meanwhile, our people in Washington are, we hope, trying their best to make the denominator larger by advocating for more visa numbers. So long as the country wants a lot of investment, it must have enough visas to accommodate that investment. Otherwise, wait times are discouraging for potential investors from China, India, and Vietnam who believe the backlog data and do the math, and tragic for previous investors who were not informed about the backlogs.

Finally, a reprise of my handy image of the EB-5 process. And a few reminders. My data repository is on the EB-5 timing page. I set up an EB-5 Timing Estimate Service for anyone who wants a mathematical time estimate and explanation specific to his or her own priority date, or to the priority dates of their investors. And for those more worried about China than India, IIUSA promises to have a new post up soon that gives further analysis of Oppenheim’s China wait calculation from May 2019.