Analyzing potential changes to EB-5 visa availability
February 22, 2021 13 Comments
Last week, President Biden sent his immigration bill to Congress. The proposed U.S. Citizenship Act serves to open negotiations on immigration reform. Apparently no one thinks this bill will pass as-is, but it signals the administration’s priorities and presents a large collection of reform ideas that might go somewhere individually, if not together. While I wait for more lawyers to comment on the legislation, I read it myself and tried to think about EB-5 implications. I get the impression that the drafters have these priorities in this order: DACA, the southern border, family-based immigration, employment-based immigration for tech and health care workers, and a few thoughts for asylum seekers, refugees, students, and farm-workers. The bill hardly notes the existence of EB-5 immigrant investment (and doesn’t mention regional center program authorization). It does include provisions that would reshuffle visa numbers and visa availability, with positive and negative implications for EB-5 wait times. To assist in thinking about these legislative proposals, I’ve done two things.
- I made a table that lists out in one column all the ideas I’ve heard of for statutory or administrative changes that could change EB-5 visa wait times. Then I searched the U.S. Citizenship Act for those provisions, and on finding them noted the detail and page number. This table helps to give an overview of what could conceivably change, and which specific changes the Administration is actively promoting now. See the base of this post.
- I made an Excel sheet designed to help model the wait time impact of various possible legislative changes. (Link to download the file.) The model starts with the most recent Charles Oppenheim wait time analysis, which addresses the wait time outlook under status quo conditions for an EB-5 investor with a priority date of October 1, 2020. I took that analysis and broke it into component parts, which then facilitates switching out the values for various components and seeing what happens to the calculated wait time. The model shows that the single change with most EB-5 wait time relief for all countries and all priority dates would be to recognize that only EB-5 investors, not family members, get counted against the EB-5 visa quota. All EB-5 investors should unite to advocate for that change. (I can’t positively identify this provision in the U.S. Citizenship Act, but hear it is there. EB-5 applicants have tried to challenge EB-5 derivative-counting through the courts, but the litigation did not succeed — most recently Wang v. Blinken and previously in Wang v. Pompeo.) The bill’s proposed increase to the EB visa limit combined with decreased EB-5 share of the EB limit would have net zero EB-5 effect together, but could be very good or very bad if pursued separately. Removing the country caps on EB visas would reorganize the backlog without shortening it, meaning decreased wait times for some and increased times for others. Recaptured past EB visas would probably be cold comfort for EB-5, considering that EB-5 has only one year to try to get a share, and constrained by limited consulate and USCIS capacity to actually issue extra visas. My Excel model has limitations: it can only visualize the situation for a single priority date, and the backlog detail for that one date is limited to what Charles Oppenheim shared last November. But I think the model is still useful to model differences, and to help visualize how much or little wait time impact various changes could have.
| Ideas for how to change EB-5 visa availability and wait times | Proposal included in the U.S. Citizenship Act | Page |
| Change the total employment-based (EB) visa allocation | Increases annual Employment-Based visa limit to 170,000 [currently it’s 140,000] | 177 |
| Change EB-5’s share of the EB visa limit | Decreases EB-5’s share of the annual EB visa limit to 5.85% [currently it’s 7.1%] | 222 |
| Recapture unused visas from previous years | Adds unused EB visa numbers from 1992-2020 to a fiscal year’s annual EB visa level [This would be over 100,000 visas, but I guess wouldn’t help EB-5 much since EB-5 would have only one year to try to claim them, and consulate/USCIS capacity is limited.] | 177 |
| Change who is subject to numerical limitations | Provides that beneficiaries of approved immigrant petitions with a priority date over 10 years before are no longer subject to numerical limits [Appears that this would cap EB-5 wait times at 10 years.] | 220-221 |
| Change the order of visa issuance | Eliminates the country cap on EB visas [This would shorten wait times for some and lengthen it for others by making visa issuance simply first-come-first-serve for everyone] | 220 |
| Change priority date retention options | Allows retaining priority date of earliest petition filed that was approvable when it was filed, regardless of the category of subsequent petitions [This is better than the PD protection currently available to EB-5 under the regulations] | 203 |
| Eliminate factors that deplete EB-5 visa availability | Eliminates Chinese Student Protection Act offset [But this moot, since the offset had already been satisfied as of 2020] | 222 |
| Count principals only, not family members, against the annual visa limits | Provides that “(I) Noncitizens described in section 203(d)” are exempt from direct numerical limitation. [This issue has also been pursued via litigation.] | 220 |
| Change how EB-5 shares in unused visas from previous years, and prevent EB-5 from permanently losing unused EB-5 numbers | I didn’t find this in the bill | |
| Change the number of EB-5 visas available to pending applicants by creating new set-aside categories for incoming applicants | I didn’t find this in the bill [new set-asides would lengthen wait times for pending applicants] | |
| Create a new non-immigrant visa category for people with approved I-526 to enter the U.S. on non-immigrant status while EB-5 petitions are pending | I didn’t find this in the bill | |
| Permit concurrent filing of I-526 and I-485 | I didn’t find this in the bill | |
| Always permit filing I-485 based on Chart B | I didn’t find this in the bill | |
| Grant parole and employment authorization for anyone with approved I-526 | I didn’t find this in the bill | |
| Reallocate visas from other categories (such as Diversity Visa lottery) to EB-5 | I didn’t find this in the bill | |
| Provide more protection for children against age-out | I didn’t find this in the bill for EB categories | |
| Improve capacity and procedures at USCIS and consulates so that available visas actually get issued | I didn’t find this in the bill |
EB-5 Updates 
Hello Suzanne. Thank you for your blog, always a source of great information.
Our I-526 was approved in late 2019 and we were awaiting our interview appointment when consulates stopped processing immigrant interviews. My concern is, I don’t see in that US Citizenship Act’s bill anything that would reduce the backlog at the consulate for people like us. You mentioned rumors you heard (like granting parole…) but should they fail to materialize, other visa availability changes will only contribute to more backlog at the embassies.
Do you really think that nothing will be implemented to reduce this specific backlog?
It shouldn’t take special legislative action just to get consulates to go back to doing their normal jobs of processing immigrant interviews. But indeed a backlog has built up just from 1+ year of consular inaction, aside from visa availability problems. And haven’t heard what’s the plan to deal with recovery from COVID-19 impacts.
“The model shows that the single change with most EB-5 wait time relief for all countries and all priority dates would be to recognize that only EB-5 investors, not family members, get counted against the EB-5 visa quota. All EB-5 investors should unite to advocate for that change. (I can’t positively identify this provision in the U.S. Citizenship Act, but hear it is there.)”
That provision is in section 3402 of the bill (page 220 line 7)
Could EB5 legislations get slipped in as amendments to get vote count over the threshold? Lobbyists from industry must be hard at work in capitol hill right now.
I am also thinking that if people are already waiting for 4 years to get the I- 526 approved should they not be waived off from the conditional PR queue to get citizenship especially when the funds have already been redeployed in cases where projects have reached completion and it is very clear that the necessary jobs have been created already in the invested project.
That is an excellent point. How can we bring this idea forward? It makes so much sense that as a relief conditional permanent residency should be waived.
Thank you for another amazing analysis and recap.
However at this point I feel no matter what steps they try to change the legislation, with the current USCIS’s capacity and inefficiency, everything would fall into a backlog anyway. Policy is one thing, business managment and capacity is another.
Very true. As we are sadly seeing this year with over 18,000 EB-5 visas available and only a few hundred EB-5 visas issued.
Thank You for your amazing work, your work has helped me a lot. I am curious to know your thoughts, is it possible for the package to also have the Grassley-Leahey act also as a part of the package, it is bi-partisan, would be an investment in America, and can be a small but starting bridge to get started?
I hear that Plan A was for the Grassley-Leahy act to get included in the COVID relief bill late last year, but it was not included. Reportedly, there wasn’t enough education about it/backing for it to get included at that time — probably partly because it was put forward at the last minute. I’m sure that people are looking at other legislative packages coming up, since getting a provision passed by itself is next to impossible. But I don’t believe that EB-5 has bipartisan support now so much as bipartisan ignorance/misconception, so there’s a lot of work to do.
Hi Suzanne,
My application has a Pd of Aprill-2017, was outside normal processing time, I submitted a request to USCIS, they replied that they are under security check so it has not been resolved. My application has submitted RFE for over 2 years wait until now. So how long will I wait and what are they going to do next? Thank you very much
I am sorry to hear about this sad story! The “security check” status is really tough because USCIS can claim and excuse almost unlimited time for it. Two years definitely sounds like too long, but I’ve heard of others with similar experience. Ask your lawyer about options to inquire with USCIS and through the Ombudsman and Congressional representative.
Sorry suzanne, please bother you again. In my answer, USCIS they wrote the following: “Though reviews for most applications or petitions are completed very quickly, a small percentage of cases have unresolved” background check “issues that temporarily delay adjudication of the application or petition …. (background check, not securirty check). Is it different from your answer.
Thank you very much