FY2024 Set-Aside Visa Availability Update

As an update to previous posts, I note additional pieces of information that have become available about forthcoming EB-5 visa availability in the set-aside/reserve categories.

FY2024 Quota: Department of State has published the Annual Numerical Limits for Fiscal Year 2024, indicating that the Employment-Based visa limit for the year is 161,000 – a bit lower than USCIS had estimated last month, but still well above the base allocation of 140,000. This means another unusually high number of new visas allocated to EB-5 this year, in addition to carryover of unused reserved visas.

Reserve Visa Carryover: At the Department of State/AILA Liaison Committee Meeting October 5, 2023 AILA asked “in FY2024, will DOS first use up reserved visas carried over from FY2023, and only once such numbers are exhausted, use the numbers made available under the FY2024 annual reserved limit?” DOS answered “Yes… the set-aside visas from FY2023 will be added to the same set-aside categories for FY2024 and will be used before the regularly allocated set-aside numbers.” This decision is significant because it maximizes the potential number of reserved visas year-to-year. A new FY24 rural visa can be carried over as FY25 rural visa if unused; the carryover FY24 rural visa must be used this year or else be lost to the category, becoming a FY25 unreserved visa. And so DOS is choosing to allocate carryovers first. (There’s unfortunately no mechanism for unused unreserved visas to carry over to another year, regardless of if they originated from reserve visas carryover, as DOS also confirmed in the AILA Q&A. But I have some hope that consulates and USCIS will work overtime to issue the 14,000+ unreserved EB-5 visas available this year, considering that all available unreserved EB-5 visas were issued in FY2023.)

Reserve Visa Issuance: Department of State also engaged with the IIUSA Leadership Circle in October, and provided additional insights in a report available to IIUSA members. I was particularly interested to hear the confirmation that DOS did not use any reserved EB-5 numbers in FY2023, but does anticipate issuing reserved visas by late FY2024 (considering that USCIS has started to approve I-526E petitions in recent months).

Reserve Visa Availability: Combining the above sources, the following table shows how I now expect EB-5 rural and high unemployment visa availability to look going forward. FY2024 carryover is known, and I expect another full carryover in FY2025. This is based on the assumption that, regardless of how many people have filed I-526E by now, processing constraints mean that USCIS/DOS can’t manage to get over 2,800 rural applicants and/or over 1,400 high unemployment applicants qualified plus interviewed by September 2024 (as would be necessary to exhaust this year’s carryover visas and start touching new visas). The reserve carryover train will continue until the number of category visas possible to issue in a year (thanks to sufficient qualified applicants ready at the visa stage that year) meet or exceed visas available that year. But note that reserved visa availability is not exactly cumulative; if the reserved visas available in a year aren’t issued, only a portion (the new, not the carryover) can remain available for use in the same category in the next year.

	EB Annual Visas	EB-5 Annual (7.1% EB)	Rural Annual (20% EB-5)	Rural Carryover from previous year	Total Annual Visas Available to Rural	Number of Rural Visas Issued
	A	B=A*.07	C=B*.20 (Rural) or B*.10 (HU)	D	E=C+D	F<E if low demand/slow process
2022	281,507	19,987	3,997		3,997	0
2023	197,091	13,993	2,799	3,997	6,796	0
2024	161,000	11,431	2,286	2,799	5,085	Estimate <2,799 (assuming low demand/slow process)
2025	140,000+	9,940+	1,988+	2,286 (assuming not used in FY24)	4,274+	? (depends on demand and approval timing)
2026	140,000+	9,940+	1,988+	? (up to 1,988+)	1,988 + any carryover
	EB Annual Visas	EB-5 Annual (7.1% EB)	High Unemployment Annual (10% EB-5)	HU Carryover	Total Annual Visas Available to HU	Number of HU Visas Issued
2022	281,507	19,987	1,999		1,999	0
2023	197,091	13,993	1,399	1,999	3,398	0
2024	161,000	11,431	1,143	1,399	2,542	Estimate <1,399 (assuming slow process)
2025	140,000+	9,940	994	1,143 (assuming not used in FY24)	2,137	? (depends on demand and approval timing)
2026	140,000+	9,940	994	0 if all 2025 visas used, or up to 994	994 + any carryover

When will visa-stage rural and high unemployment applicants first exceed the visa availability outlined above, thus triggering the visa bulletin and country cap limits? This is where we try to estimate:

• how many investors need to file I-526E to end up with about 4,000 rural visa applicants or 2,000 high unemployment visa applicants (I’d divide visa applicants by about 2, based on guesses about family sizes and approval rates)
• how long will USCIS take to stock the visa stage by approving over 1,500 rural or over 750 high unemployment I-526E (considering a historical average around 36% of principal applicants in EB-5 visas issued), and
• how many rural and high unemployment investors can manage to get visas with their families in FY2024, thus reducing demand pressure against the visa supply available in FY2025 and beyond.

Reserve Visa Demand:  So how much demand has accumulated for the new EB-5 reserved visas — and why is this such a hard question to get answered? In Monday’s CIS Ombudsman EB-5 engagement, IPO Chief Alissa Emmel explained why USCIS considers it difficult to share usable data.

Quoted from Minute 50-52 of The CIS Ombudsman’s Webinar Series: Engagement with USCIS on the EB-5 Immigrant Investor Program
Gary Merson, CIS Ombudsman Chief of Staff
Changing topics slightly. We’re hearing from stakeholders who would like to see the agency publish more data on the pending inventory of petitions so that would be investors have a better sense of the visa queues for infrastructure, rural and high employment projects. Can you give us a sense of the challenges in doing so and what options USCIS may be considering to address this issue?

Alissa Emmel, IPO Chief
Sure. I appreciate stakeholder requests for more data, and as an economist and somebody who values data driven decisions, I understand the value that a report on the pending inventory form I-526 and I-526E petitions broken down by visa category could provide to investors. IPO is actively involved in discussions with offices across USCIS to determine how best to present EB-5 data. USCIS strives to make as much data about various aspects of our operations available to the public as possible. We do so to increase transparency and improve public understanding of the immigration system and our role in it. Currently, USCS is working through how best to report Form I-526 and I-526E information, as there are several variables that may impact overall accuracy and therefore the usefulness of such a report. Similar to the rest of the agency, information provided on our paper forms are reported by the applicant, petitioner or requester, or the representative or preparer, so there may be errors on the forms when USCIS receives them. For example, a petitioner may erroneously select the wrong class, preference, or benefit type they are requesting. However unique to the EB-5 program, petitioners may file a form I-526E petition before their associated form I-956F is approved.  As such, at the time of filing the I-526E, the petitioner may not know which visa categories their project may be approved for. Further, some petitioners may be eligible for multiple visa categories, including unreserved visas. These factors are some of the nuances with developing a report prior to the final adjudication of the form I-526 and I-526Es. In addition, it’s important to note that while USCIS always strives to ensure that the data in our electronic systems is accurate, data errors do occur because we transfer data from paper forms to electronic systems manually. I hope it’s helpful to understand some of the considerations that the agency is taking into account while we look at how to best provide information that would be useful for our stakeholders.

As we try to get a handle on EB-5 demand by interpreting I-526E reports from USCIS quarterly reports (available through June 2023 so far) and FOIA requests (coming soon), or by attempting an educated guess from what we see in the market, let’s keep these nuances in mind. We cannot predict exactly how many applicants will eventually reach the end of the visa process and when, even if USCIS would be transparent about the distribution of petitioners starting the process. But I still encourage USCIS to promptly share the TEA investment categories self-reported on I-526E filings. Let the public interpret and discuss that limited data point while adding their own assumptions about human error, denial rates, processing times.