October 2024 wrap-up (Integrity Fee due, EB-5 diligence resources, retrogression update)

Integrity Fees

A reminder to all regional centers that the Integrity Fund payment for the coming year is due THIS WEEK by October 30, 2024 (i.e. 30 days from Oct 1). See https://www.uscis.gov/IntegrityFund, and discuss with your attorney to make sure of getting all the fiddly details right with the payment process. Any regional centers who miss this week’s deadline may have a chance to pay with a late fee penalty until December 30. Regional centers who do not pay in full by December 30, 2024 face termination.  Many people were understandably confused by the process last year, and recently USCIS agreed (following litigation and advocacy) to offer a make-up opportunity for RCs that received termination notices over FY23 or FY24 fees. USCIS added a note to the EB-5 What’s New page this month that “For regional centers that failed to pay fees for FY 2023 and/or FY 2024, we are also accepting delinquent payments for FY 2023 and FY 2024 from Oct. 1, 2024, through Dec. 30, 2024.” However, the page warns that “We will reject any EB-5 Integrity Fund fee payments for FY 2023, FY 2024, and FY 2025 we receive after Dec. 30, 2024” and “we will take steps to terminate any regional center that, on or before Dec. 30, 2024, has not paid the required EB-5 Integrity Fund fees for each of FY 2023, FY 2024, and FY 2025.” If you’d like additional explanation, Carolyn Lee has recorded a webinar on Regional Centers: USCIS Integrity Fee Update – Compliance, Litigation, and I-956G Filing.

Resources

I’m happy to report that The Essential EB-5 Investor’s Guide is now published and available for purchase on Amazon. Many people know author Dilip Parameswaran from Telegram, where he has engaged with the EB-5 community and shared his experience as an EB-5 investor and professional financial analyst. I had opportunity to review and contribute to the book, and I salute Dilip for achieving a tough goal: lucidity. The book is introductory, addressing basic questions simply and concisely. At the same time it’s remarkably comprehensive, providing sophisticated treatment of both the investment and immigration sides of EB-5. Dilip has turned his own hard-won EB-5 education into an efficient, systematic, and unbiased curriculum to help others. The book is by and for EB-5 investors, but I would recommend it to new EB-5 issuers and project companies. Blogs like mine can become a confusing blizzard of shifting detail. This book lays out a solid basic framework for thinking about how EB-5 works.

I also contributed recently to a short, free guide prepared from an industry perspective and published by JTC: EB-5 Investor Due Diligence: Finding the Right Project for Immigration Success. This whitepaper addresses project structures and timelines, and suggests practical considerations and questions for vetting EB-5 offerings.

Meanwhile, I continue my day job of writing business plans for immigration purposes. Thank you to everyone who voted for me as a business plan writer in the EB5 Investors Magazine Top 25 poll — this year and since 2016.

EB-5 Retrogression Update

As I wrote in August for the EB-5 visa availability FAQ, retrogression happens IF a large crowd of potential applicants forms, with enough people to exceed annual visa availability, and WHEN that large crowd reaches the stage of becoming qualified visa applicants. October has provided new info on both the “if” and “when” questions.

“If”: I-526E filing numbers continue to show that retrogression is a foregone conclusion in the High Unemployment category, at least for China and India, and closing in on a possibility for the Rural category. IIUSA shares its most recent FOIA data in Post-RIA EB-5 I-526E Data Trends: Insights and Implications for Investors and Stakeholders (October 21, 2024) and Potential Retrogression and Visa Waitlist in the EB-5 Program (October 28, 2024). IIUSA analyzes pipeline demand for EB-5 reserved visas, and points to potential advocacy remedies for demand/supply imbalance. I salute IIUSA for taking the key first step toward recovery – acknowledging that we have a problem – and for starting to foresee advocacy steps toward EB-5 visa relief. AIIA is also vigilant on this issue, and I look forward to their FOIA results coming soon. I’ve been writing up a detailed analysis that puts post-RIA petition filing numbers and other recent data in a wider context of overall EB-5 visa availability in the coming five years, considers scope for matching visas to applicants across per-country and TEA-category limits, and notes variable assumptions about visa demand per investment. My analysis takes ten tough pages to reach the same basic conclusion as other analysis: EB-5 needs more visa numbers to remain viable.

“When”: Even as I-526 and I-526E numbers show a growing pipeline backlog, data from Department of State continues to moderate our expectations for how quickly that backlog could reach the point of claiming all available annual visas and thus triggering Visa Bulletin retrogression. In May 2024 DOS had reported nearly 1,000 post-RIA applicants already registered at the National Visa Center, but also noted that EB-5 applicants were taking 4-9 months from NVC notification to interview scheduling. As it turned out, Department of State did not manage to schedule any interviews for reserved visas until August 2024 – and then only four High Unemployment visas (“RH”) were issued in Vietnam. (See Monthly IV Issuances and p. 14 of minutes from the October 2024 AILA DOS Liaison Committee Meeting. On the status adjustment side, DOS reported that only 17 reserved visas had been issued through AOS by May 2024.)

The timing of Visa Bulletin retrogression has been pushed back by visa-stage delays on top of a sluggish process at USCIS. IIUSA’s FOIA request indicated that as of early July 2024, only 478 Rural I-526E and 240 High Unemployment I-526E had been approved – not near the number needed to generate qualified applicants for all the 4,200+ rural visas and 2,100+ high unemployment visas available in FY2025. I expect I-526E approval volumes to increase dramatically going forward, as USCIS likely moves adjudication capacity from the disappearing pre-RIA backlog onto the thousands of pending post-RIA I-526E. But I-526E processing speed now may come too late to maximize FY2025 reserved visas, considering the slow process remaining following I-526E approval. I currently do not expect the Visa Bulletin to move for EB-5 set-aside categories in FY2025. This could be good and bad for EB-5.

Slow-walking the EB-5 set-aside backlog creates a mix of opportunity and confusion. So long as the Visa Bulletin does not announce cut-off dates for EB-5 set-aside categories, new EB-5 investors in the U.S. can continue to enjoy the window to concurrently file I-485 with I-526E, regardless of where they were born, and thus secure valuable travel and employment benefits that will remain potent even through any future EB-5 retrogression. However, people may be confused into thinking that they’re not entering a serious backlog situation with respect to green cards, just because not yet flagged yet in the visa bulletin.

Meanwhile, October brought good news for the over 30,000 retrogressed applicants in the EB-5 Unreserved category. FY2025 will likely have over 11,000 Unreserved visas available to distribute, thanks to including unused reserved visas carried over from FY2023.  While Department of State has not yet announced the annual limits for FY2025, USCIS recently updated the AOS FAQ page to say: “The employment-based (EB) annual limit for fiscal year (FY) 2025 will be higher than was typical before the pandemic, though lower than in FY 2021-2024. We are dedicated to using as many available employment-based visas as possible in FY 2025, which ends on Sept. 30, 2025.”