FY2025 Visa Limit Announced

Department of State has just updated the Immigrant Visa Statistics page with Annual Numerical Limits for Fiscal Year 2025. As expected, there are an estimated 150,000 total EB visas available for FY2025 (only slightly above the 140,000 baseline, as consular operations have mostly recovered from the Pandemic). EB-5 gets 7.1% of new EB visas, or about 10,650 in FY2025, plus carryover visas.

According to EB-5 carryover rules, the FY2025 Reserved limit will be increased by Reserved visas that were newly-issued but not used in FY2024, while the Unreserved limit will be increased by Reserved visas that were newly-issued in FY2023 and then not used in 2023 or 2024. Here’s how I calculate the FY2025 total including carryovers.

We’ll have our eyes particularly on the approximately 4,400 Rural Visas and approximately 2,200 High Unemployment visas available this year. The race is on for USCIS to approve enough of the 3,000+ pending Rural I-526E and 4,000+ pending High Unemployment I-526E to generate applicants for this year’s visas. See also my post on the latest Q4 adjudication numbers and receipt data and my analysis of family sizes in EB-5. (These important new articles were inadvertently not emailed out upon publication).

EB-5 family size trends

In the spirit of the holidays, I’m sharing a few data-rich charts on the topic of EB-5 family sizes. How many EB-5 investors even have families, on average? It’s a critical and controversial topic, because EB-5 visa availability depends on how many visas go to spouses and children. The estimated market size for EB-5 investment can vary by a factor of three, depending on whether each EB-5 investment absorbs closer to one visa or three visas. The EB-5 backlog is either catastrophic or not-too-bad, depending on the multiplier used to convert I-526E receipt numbers to an estimated number of family vises.

It’s dangerous to generalize from limited samples and personal experience, because EB-5 investor family size numbers have varied by country, by immigration path, and over time. Government data is available from two sources. The annual Yearbook of Immigration Statistics counts the EB-5 visas issued to principals, spouses, and children through status adjustment and to new arrivals. The Department of State periodically provides tables showing the percent of principals (investors) among EB-5 applicants registered at the National Visa Center.  I made charts showing the past seven years of EB-5 data from the Yearbook of Immigration Statistics, and illustrating the most recent report from Department of State for all applicants in the NVC inventory (from Slide 6 of the May 2024 DOS IIUSA conference presentation).

The charts illustrate trends and variation, and set some guardrails. You can examine them for yourself, and draw your own conclusions. Looking at the charts, I’d say it’s clear that 1.5 is too low and 3 is too high to use as the number for average EB-5 family sizes. From 2017 to 2023, 2.6 was the average total EB-5 visas per investor visa. The seven-year average was higher for EB-5 investors abroad (2.9) than for U.S.-based investors (2.2), but the gap narrowed during the period. Maybe consular visas have steadily fallen over time due to children aging out, while adjustment visas show an upward trend as young investors start to build families.  I don’t know the story behind the Pandemic-adjacent dip in people immigrating together with spouses.  Looking at the country-specific differences in NVC data, we can guess about the impact of shifting the EB-5 market from one place to another.

The NVC data has the limitation of covering consular processing only, but the strength of covering the current population of applicants for future visas (including set-aside applicants with priority dates through 2024). The Yearbook data covers historical visa issuance only, but it reports on status adjustment as well as new arrivals from consular processing.

For my post-RIA EB-5 backlog estimates, I have been using 2.0 as the minimum multiplier to convert I-526 filings to estimated EB-5 visa demand. I don’t feel justified going any lower than that given the data on family sizes in the current EB-5 inventory and historical visa issuance, as detailed in the charts below. Estimated failure rates are another factor in the multiplier, but we should hesitate to count on high failure rates for Pre-RIA investors. “Don’t worry about the backlog because most of them will probably fail” is not a good sales pitch.

We should keep reminding Congress that the economic impact of EB-5 could be so much bigger, if family members didn’t get counted against the EB-5 visa limit. Does Congress realize that under current rules, fewer than 4 out of 10 of the visas designated to incentivize investment can actually go to investors?

FY2024 Q4 EB-5 Form Data

USCIS has finally updated the Citizenship and Immigration Data page with form receipt and adjudication numbers through September 2024, the end of the fiscal year. The numbers continue to show encouraging EB-5 processing improvements and robust but sadly unsustainable EB-5 demand.

I put the FY2024 data in context of the fifteen years since I launched my business plan writing service and started blogging about EB-5.

The chart shows that USCIS just had its best EB-5 processing year since 2018. EB-5 form completions more than doubled from the previous year, and reduced the I-526 and I-829 backlog to the lowest level since before 2015. USCIS also managed to process 1,119 post-RIA I-526 and I-526E, thus generating a significant number of applicants for set-aside visas in 2025. If the processing capacity applied to pre-RIA I-526 in 2024 is moved to I-526E in 2025 (as it might be, considering that the net backlog for I-526 is only 300 forms), then nearly all currently-pending I-526E could be processed in 2025. This is the good news.

Meanwhile, I-526E receipts in FY2024 reflect EB-5 demand at its highest level since before 2019, and once again shooting above the level possible to accommodate under the EB-5 numerical limit (i.e. about 10,000 visas annually, of which historically an average 38% go to investors while the rest to go spouses and children). Incoming EB-5 demand is largely aimed at the fraction of visas in set-aside categories, and lacks an escape route since Department of State is still working through the legacy Unreserved visa backlog generated by excess EB-5 demand from 2012 to 2019, as illustrated in the above chart. When the Unreserved backlog disappears (which I calculate could happen by 2030), thus clearing the way for post-RIA applicants to access Unreserved as well as Set-Aside visas, the 10,000 annual visa limit would still not be sufficient to accommodate new investors coming in at a rate of nearly 5,000 per year, as happened in FY2024.

The above chart illustrates that EB-5 needs, overall, about 30% more annual visas than it has, in order to close the gap between actual/potential and sustainable demand. (If we drilled down to historical imbalances by country and TEA category, the gap would be greater than 30% in some cases and less in others.) If the visa demand gap isn’t closed by increased visa supply, it will be closed by plummeting EB-5 usage when prospective investors see the gap producing backlog delays.

I am committed to doing whatever I can to support relief from the current unsustainable situation in EB-5, whether that be any possible EB-5 visa relief, or measures to make visa wait times more tolerable. I have been in advocacy conversations about legislative options, and have tried to support data and education to make visa wait times at least more understandable and predictable. I oppose measures such as the IIUSA sustainment lawsuit that would make visa wait times more painful and unattractive by linking repayment timing to visa timing for post-RIA investors. I also made the tough decision this year to stop writing regional center EB-5 business plans, given my backlog analysis, though that work had been my bread and butter for over a decade. Not that my small professional sacrifice will make a difference, but it reflects how seriously I take the current EB-5 backlog problem.  I don’t want to help dig the hole deeper, and I hope for the day when EB-5 can become sustainable — which it may, if many people take the current problem seriously. Immigration opportunity in exchange for economic development and job creation is a beautiful thing, when it’s real. EB-5 investment has supported so many good projects and business ideas, and it needs to be able to realize its immigration promise to investors, including investors from China and India.

And now for a full set of charts for the FY2024 Q4 data. I notice that I-956 and I-956F receipts have been falling while adjudication volumes continue to grow – an interesting industry phenomenon and a good sign for processing times. I-829 receipts reached an unprecedented high this year. Are people increasingly removing conditions individually rather than as families with the principal applicant? Denial rates remain very low for post-RIA forms and I-829, and elevated for legacy I-526. I included a summary table for the pending I-485 inventory as of November 2, 2024, showing over 12,000 EB-5 adjustment forms pending.  And I note that Department of State has also published the first month visa issuance report for FY2025. Only 6 post-RIA visas were issued through consular processing in October 2024 (3 high unemployment, 2 rural, and 1 unreserved), but the Visa Bulletin suggests that Department of State expects this pace to increase shortly. I’ve also updated my Processing Data page with the Q4 data.

EB-5 Set-Aside Visa Retrogression in 2025?

We’ve known that EB-5 set-aside visa retrogression is coming, but not when. Excess demand has been evident in data for I-526 and I-526E receipts for High Unemployment and (soon) Rural categories. (AIIA just published a FOIA response based on a September 2024 query, and before that we had the IIUSA FOIA data queried in July 2024, the WR Immigration FOIA data queried April 2024, and AIIA’s FOIA of 2023 data.) But when will high unemployment and rural investors reach the visa stage with their families in sufficient numbers to max out available visas? I had predicted that sluggish USCIS processing might slow-walk the backlog and keep the Visa Bulletin “current” through 2025 for EB-5 set asides. However, USCIS has apparently accelerated the volume of petition processing since last report in June 2024. The January 2025 Visa Bulletin includes a note with this warning signal for potential retrogression this year.

E.  VISA AVAILABILIY IN THE EMPLOYMENT FIFTH PREFERENCE (EB-5) SET ASIDE CATEGORIES

The Department of State and USCIS note increased I-526E petition approvals, and both agencies see increasing numbers of individuals processing their applications to completion in the EB-5 set aside categories.  It may become necessary to establish Dates for Filing and Final Action Dates during the fiscal year to ensure that issuances in these categories do not exceed annual limits.  This situation will be continually monitored, and any necessary adjustments will be made accordingly.

—

Is this announcement significant? What changes, when the Visa Bulletin changes and imposes cut-off dates?

Let’s start with what doesn’t change: visa bulletin retrogression does not make expected visa wait times longer than they were already. A high unemployment investor with an August 1, 2024 priority date has a wait time that’s a function of the 3,995 other high unemployment investors who have earlier priority dates, and who will be joining their spouses and children to compete for available HU visas (2,200 or so visas this year, and 1,000 annually thereafter). A rural investor with an August 1, 2024 priority date has a wait time that’s a function of the 2,809 other rural investors who have earlier priority dates, and who will be joining their spouses and children to compete for available HU visas (4,400 or so visas this year, and 2,000 annually thereafter). The picture is a bit complicated by the fact that expected wait times for Chinese and Indians can be increased over time by subsequent Rest of the World investors, while ROW investors benefit when the Visa Bulletin limits China and India. But basically, an investor’s visa wait time originates in the demand/supply balance on the day he joined the back of the visa queue by filing I-526E. The wait time is not created or changed on the day that the front of the visa queue exceeds annual limits and triggers a cut-off date in the visa bulletin. The Visa Bulletin reflects a backlog situation; it does not create that situation. If anything, an early Visa Bulletin cut-off date would be good news for visa timing overall, because it would mean that USCIS petition processing is proceeding more quickly than expected, and that 2025 set-aside visas may be maximized instead of lost.

Visa Bulletin retrogression will change the EB-5 market, because many people don’t believe in backlogs until reflected in the visa bulletin. I sadly keep getting marketing emails and seeing published articles with variations on this false/misinformed statement: “There is no significant retrogression concern for the time being for post- RIA investors who invest in rural and high unemployment projects (all of which remain current as of the latest State Department Visa Bulletin).” When the Visa Bulletin is silent, people don’t do the math with I-526/I-526 receipt numbers, and don’t calculate for themselves that all rural visas this year and all high unemployment visas this decade could be absorbed by the investors+family already in line as of mid-2024. When the Visa Bulletin speaks, then industry and prospective investors don’t need math or FOIA data to see oversubscription. For the sake of EB-5 program integrity, I’m glad that the Visa Bulletin is starting to give warning of a backlog situation that should already be informing industry and investor decisions. It’s highly material for issuers and investors to know whether the incentive supporting the investment exists or not.

Does it matter that the warning in the January 2025 Visa Bulletin might not be fulfilled, and that set-aside cut-off dates may not actually appear in 2025? For historical reference, the December 2012 Visa Bulletin first warned that “It appears likely that a cut-off date will need to be established for the China Employment Fifth preference category at some point during second half of fiscal year 2013.” But as it happened, China EB-5 did not get its first cut-off date until the May 2015 Visa Bulletin — thanks again to slow/low-volume I-526 and consular processing. Did past Chinese EB-5 investors with priority dates between 2013 and 2015 benefit from the delay in imposing cut-off dates? Not really, because excess demand was a fact regardless of when reflected in the visa bulletin. A delay in processing the China EB-5 crowd just resulted in lost EB-5 visas in 2013 and 2014. Subsequent visa bulletins show that China-born EB-5 applicants with April 2015 priority dates did not start getting visas until 2017 or finish getting visas until 2022, no matter the word “Current” in the April 2015 Visa Bulletin. On the other hand, a delay in imposing cut-off dates was great for the EB-5 market, which stayed hot under the attractively “current” visa bulletin and was able to raise over $14.3 billion dollars from China-born investors from FY2013 to FY2015. The harvest would likely have been much smaller, had Chinese investors realized at the time that everyone with priority dates from May 2013 would end up experiencing retrogression delay.

As discussed above, a Final Action Date in the Visa Bulletin does not suddenly make wait times longer than they were already. So it’s not quite honest to say “hurry to secure your place in line by filing I-526E before the Visa Bulletin imposes Final Action Dates.” Two Indian high unemployment investors, one with April 31, 2025 priority date and one with a May 1, 2025 priority date, would have nearly the same place in line and thus nearly the same visa wait time outlook regardless of whether May 2025 happened to be the month when the Visa Bulletin showed retrogression. No matter the visa bulletin status on the date of filing, these two investors will wait for as long as it takes to grant green cards to other Indian HU applicants with earlier priority dates, and to rest-of-world HU applicants with earlier and later priority dates.

However, there is some sense in a message “hurry to file I-526E before the Visa Bulletin imposes a Date for Filing for your country/category” — at least for investors based in the United States. While Chart B Date for Filing does not change the time to get a visa, it does change the opportunity for concurrent filing. A Date for Filing stops new investors from filing I-485 with I-526E, meaning they can’t immediately file for employment and travel benefits.  And these interim benefits are valuable. I’ve had direct EB-5 clients who made recent EB-5 investments for the sake of EAD and advance parole, even understanding the likelihood of severe green card delay. Our hypothetical friends with the April 31 and May 1 priority dates may have the same green card waits but very different experience during the wait, if hypothetical Visa Bulletin retrogression in May 2025 meant that one could get I-485 on file and thus able to apply for and enjoy interim employment and travel benefits, while the other couldn’t.

For additional analysis, see Lee Li’s new article for IIUSA January 2025 Visa Bulletin: EB-5 Dates Remain Unchanged, Noting Possibility of Cut-Off Dates for Reserved Categories. and IIUSA’s newly-refreshed EB-5 Visa Data Dashboard. I have been working on detailed analysis that I haven’t yet published, but note that I continue to make timely updates to my Key EB5 Backlog Data file (always linked to the top of the EB5 Timing and Processing Data pages so the public can access as much data input as I have at any given time). Recently I am particularly benefiting from AIIA’s FOIA requests for Pre-RIA I-526 inventory data and Post-RIA I-526 and I-526E receipt data, because these datasets provide a breakdown by month that can be used in forecasting visa bulletin cut-off dates. Combining the recent wealth of FOIA data with newly-available granular NVC and I-485 numbers, I’m considering reopening my customized EB-5 timing service in the new year.  

August 2024 I-485 report with data for EB-5 Set Aside and Unreserved categories

And now another important data drop, as USCIS has added all EB-5 Set-Aside categories for the first time to the report of pending employment-based I-485 published monthly at the USCIS Immigration and Citizenship Data page.

Pending Applications for Employment-Based Preference Categories as of August 3, 2024 (XLSX, 109.41 KB) is wonderfully timely, providing comprehensive I-485 inventory data just a few weeks old. The report now lists pending EB-5 I-485 inventory itemized according to visa category (Unreserved, High Unemployment, Rural, Infrastructure), petitioner priority date (month year), and petitioner country of chargeability (China, India, Mexico, Philippines, or Rest of World). I-485 can now be filed concurrently with I-526/I-526E, so this report is effectively another view into I-526/I-526E receipts by country and TEA category. It’s limited to the portion of investors who are in the USA pursuing status adjustment, not including demand from abroad, but has the advantage of being very recent, and updated monthly.

The August I-485 report reflects late-breaking EB-5 TEA demand trends, and shows continued strong demand for rural TEA investments. (9/20 UPDATE: The chart originally posted here showed a more dramatic trend that resulted not from reality, but from the fact that I made an error in copying and pasting from one spreadsheet to another. Thanks to a vigilant reader who checked my work and found the error!)

The August I-485 report surprised me by recording some petitions in the Infrastructure category. The exact numbers are small, redacted with a “D” (meaning <11) in every month they appear. But still interesting, as I had thought that the Infrastructure category wasn’t being used at all. It’s also interesting to compare the reported I-485 inventory (which includes principals plus family) with our latest data for I-526/I-526E filings through early 2024.

The August I-485 report includes data for EB-5 Unreserved, which is interesting to compare with past reports, to get a sense of who exited the inventory by getting visas over time. (While keeping in mind that the pending inventory is not only reduced by visa issuance, but also expanded as new applicants file I-485.)

I’ve been tracking the monthly I-485 reports since February 2024 (when this report format was first introduced), and have seen USCIS struggle with how to report the EB-5 numbers. The February report only recorded EB-5 priority dates through 2022, the April report had 2023 and 2024 priority dates but only for ROW and all categorized as Unreserved, the May-to-July reports added a lump row for Set-Asides, and August finally figured things out and has data individually recorded for each TEA category and country. The monthly I-485 pending inventory is a very valuable report, and I look forward to tracking ongoing updates.

I-526/I-526E data by TEA and country through early 2024

As I prepared Monday’s post on the Visa Bulletin, I looked at the number 9,158. This number represents 9,158 Chinese investors plus family who contributed at least $500,000 per family in 2014/2015 for the chance to qualify for an EB-5 visa. The Visa Bulletin showed “C” – no restriction – for China EB-5 through 2014 into the first half of 2015 (only beginning to establish cut-off dates in May 2015, and even then only implying a two-year wait with a 2013 date). How many of those people realized that they’d still be here a decade later, visa-less, a statistic on the 2024 NVC waiting list? Visa availability problems were predictable in retrospect, considering the 25,000 I-526 filed in 2014/2015, but we didn’t talk much about pipeline visa demand in those days. In honor of everyone taken sadly by surprise, and hoping not to repeat that history, we are more careful now to track and report not only the visa-stage demand reported in the visa bulletin, but also on pipeline demand coming up from I-526/I-526E filings.

I’m happy to report another important addition to the treasury of I-526/I-526E receipt data, with detail on visa category and petitioner county as needed for visa pipeline analysis. This dataset is courtesy of the efficient Joey Barnett of WR Immigration, who managed to extract a record-quick Freedom of Information Act response from USCIS, and immediately and generously made the full record available to the public. The data is published in a blog post here: “Exclusive New EB-5 Filing Data on Rural v. High Unemployment Area Demand as of April 2024!” You’re invited to join Joey Barnett and Charlie Oppenheim in discussing the data during the next edition of The Bulletin – Chatting with Charlie: EB-5 Investor Outlook on September 26, 2024.

Prior to the WR Immigration FOIA request, the most recent publicly-available TEA-and-country-specific data was from AIIA FOIA Series: Updated I-526E Inventory Statistics for 2023. The AIIA FOIA data was monthly through the end of 2023, and highlighted a handful of high-demand countries. The WR Immigration FOIA data is annual, but extends through the first part of 2024 and lists results for every single petitioner country.

The comprehensive county-specific detail in the WR Immigration FOIA provides interesting material for the question “where are regional centers finding EB-5 investors these days?” I see that AIIA already has a post up from this angle.  

For backlog analysis, the WR Immigration FOIA is critical because it covers at least part of the great filing surge of Q2 2024, when 1,879 I-526 and I-526E were filed. We’ve needed to know where those 1,879 people came from, and where they invested, to help get a handle on potential TEA and country-specific backlogs. And now we have more information about it.

It’s tricky to date FOIA responses, because USCIS only reports the date that they queried the database, leaving us to guess how up-to-date the database was at that point. The WR Immigration FOIA is dated as of April 18, 2024. Comparing the FOIA totals with the totals that USCIS ended up officially reporting, we can conclude that the WR Immigration FOIA report captures cases filed through about February/mid-March 2024.

I’ll let charts tell the story of what happened during the recorded part of the March 2024 filing surge, including how Rural demand surged ahead for the first time (particularly thanks to China), while High Unemployment demand dipped but remained sufficiently strong to continue to dominate the cumulative inventory. (The charts combine AIIA’s FOIA data for 2022-2023 with WR Immigration’s FOIA for 2024.)

And finally, here’s the table that highlights my concern in the data: what’s going to happen to these data points when they’re people with families approaching the visa window?

For a rough estimate of future visa demand from the I-526 pipeline, I conservatively multiply the I-526 receipts by 2. This underestimates typical family sizes, but considers the possibility of denials and other attrition. And then I look at estimated cumulative visa demand and future visa supply and think about the balance.

FY2025 is carryover year, with extra visas available. What would happen in the best-processing case/worst-visa-case scenario that the entire pipeline of investors filing I-526 up to March 2024 reached the visa stage in FY2025? Looking at the numbers, I see that they would find enough rural but not enough high unemployment visas to accommodate them. In that case, FY2025 would end with Visa Bulletin cut-off dates for high unemployment, and a backlog going into FY2026 without the promise of carryover from unused HU visas.  In real life, slow I-526E processing looks likely to continue to slow-walk the backlog (as it has been slow-walked to date) such that FY2025 doesn’t get sufficient applicants to max out FY2025 visas. In that case, the visa bulletin would not move yet in FY2025, and FY2026 would also have extra visas. In that case, the pipeline that had built by early 2024 would be getting visas in 2026 and years beyond.

If I were an investor from China or India, I would look not only at the China or India pipeline, but also at ROW (meaning applicants from the “rest of world”). ROW is important, because the number of annual visas available to me, as an applicant subject to country cap, is equal to 7% PLUS a share of any visas not absorbed by ROW. Every one ROW visa issued is one fewer visa that might be available to my country over the country cap. The ROW pipeline is also a target for people wondering if it’s possible to diffuse demand pressure from TEA set-aside categories. (But notice that High Unemployment shows enough demand from China and India alone to absorb 2+ years of visas even if they were the only applicants, even if 100% of the documented ROW HU pipeline left the HU category and chose to receive Unreserved visas instead.)

Still have questions about what the numbers mean? Note that the FAQ I just finished addresses topics such as which countries are affected by country cap limits and retrogression, how applicants may choose a TEA or Unreserved category, and how annual EB-5 visa availability gets calculated.

FY2024 Q3 EB-5 Form Processing Data

The USCIS Immigration and Citizenship Data page has published performance data for FY2024 Q3 (April 1, 2024 to June 30, 2024), including for EB-5 forms I-526, I-526E, I-829, and the various form I-956s. I regularly consult the All USCIS Application and Petition Form Types  report, the Net Backlog and Frontlog  report, and the Approved EB Petitions Awaiting Visa Final Priority Dates report.

FY2024 Q3 data shows minimal movement for post-RIA I-526/I-526E petitions, and continuing high processing volume and backlog reduction for pre-RIA I-526 and I-829. Receipts fell in Q3, especially for I-526E, but not as much as I expected after the April 1 USCIS form fee increase.

USCIS has worked aggressively in 2024 to clear the inventory of pending pre-RIA forms. By June, USCIS was down to a net backlog of only 100 I-526 petitions, and had reduced the I-829 net backlog to 5,000. (“Net Backlog is Gross Backlog minus any customer induced delays (i.e. RFE, intent to deny, etc.) and visa unavailable cases.”) It is likely that as of today, USCIS has already at least assigned nearly every pre-RIA I-526, except for I-526 from Chinese investors who don’t have visas available. If recent volumes continue, every I-526 and I-829 pending today will have been processed before June 2025. Kudos to IPO staff and Chief Alissa Emmel for making this happen! Meanwhile FY2025 visa bulletins will be interesting, as Department of State works to match FY25 visas to the influx of new Unreserved applicants from I-526 approvals.

Processing activity for post-RIA investor petitions picked up slightly in Q3, but is still extremely low in context of the I-526E backlog and the number of reserved visas waiting for applicants. Two factors give me hope for a major boost to I-526E processing numbers coming soon: the uptick in I-956F processing in Q3 (with I-956F approval being precursor to I-526E approval), and the fact that the disappearance of the I-526 backlog is about to free up major adjudicator capacity that might be moved to I-526E processing. USCIS processed nearly 6,000 I-526 in the past 12 months, and such productivity would quickly decimate the I-526E backlog. I’m optimistic that USCIS/Department of State will at least be able to issue all Reserved visas available in FY2026, considering the processing potential. However, low processing volumes to date may mean that some FY2025 Reserved visas will go unissued for lack of qualified applicants advanced in time.

And a few other points of interest. Both I-526 and I-829 denial rates were down in Q3, to 25% and 5% respectively. A handful of I-526E denials were reported for the first time in Q3 — and I expect to see more soon, considering that USCIS denied 25 I-956F project applications so far this year. The number of I-956 regional center application filings hardly dropped in Q3, despite the massive filing fee increase. And apparently USCIS approved one I-924 in Q3. Mysterious!

I’ve copied below charts to highlight salient features and trends, as well as updating my Processing Data page and Key EB5 Backlog Data excel file. And heads-up for additional data and analysis coming in the next few weeks.

• USCIS still does not report I-526E processing times, but IIUSA has stepped into the gap and worked with regional centers to collect and analyze a large database of anecdotal evidence for actual I-526E and I-956F processing times. I’ve been assisting Lee Li with this important project, and look forward to the results to be released shortly. You’re invited to join us for a webinar on October 2, 2024 on “New Data and Emerging Trends: I-526/I-526E Filings, Adjudications, and Processing Times”
• AIIA continues the critical effort to extract information from USCIS on the breakdown of post-RIA I-526 and I-526E filings by TEA category and applicant country of birth, to help keep a pulse on potential visa backlogs. They hope for a response next month to the FOIA request covering the filing surge in January to March 2024. (Currently, we only have data through December 2023.)
• I’ve been working on a major project to research and write FAQ covering questions about EB-5 visa availability and allocation. The 26 short articles that comprise this project will be published next week – look for an announcement and links here next week Tuesday.

On the visa front, Department of State announced that it succeeded in issuing all EB-5 Unreserved visas available for FY2024 – good news for pre-RIA investors, and particularly for long-suffering Chinese investors who were able to pick up a large number of FY24 visas thanks to the productive consulate in Guangzhou.  I will write separately about the visa outlook for FY2025 (which is unfortunately currently subject to litigation, as discussed by IIUSA and AIIA).

FY2024 Q2 (January-March 2024) EB-5 Form Data Update

Today USCIS published form receipt and processing data for FY2024 Q2 (January to March 2024) on the USCIS Immigration and Citizenship Data page. I’ve updated my Processing Data page with all the FY24 Q2 EB-5 numbers, and provide charts in this post to highlight the big news.

New EB-5 filings skyrocketed in January to March 2024. Meanwhile, IPO took a large bite out of the EB-5 backlog with impressive productivity that recalls the good old days of 2018. We’re setting up for a busy and crowded time at the EB-5 visa windows in 2025 and beyond.  (In other news, I’ve also updated my data repository with key visa-stage EB-5 numbers shared by Department of State at the IIUSA conference last month, to be discussed further in forthcoming articles. See IIUSA’s conference slides and a nice follow-up analysis by Lee Li that gives further detail and clarification.)

Post-RIA I-526 and I-526E Receipt Trend

USCIS reports that a whopping 1,810 I-526E and 69 I-526 were filed last quarter.

Counting up the quarterly reports from April 2022 (following the passage of RIA) to March 2024, we can see that USCIS has reported a cumulative total  5,344 post-RIA I-526 and I-526E filed, and 429 processed. (As a side note, the cumulative count conflicts with the FY24 Q2 period-end pending count. In the past, I’ve noted that the pending number ends up skewed after filing surges – I guess because last-minute end-of period receipts get counted as receipts in the period but only added to pending in the next period.)

In context, since RIA passed two years ago, EB-5 investors have brought at least 5,344*$800,000=$4.275 billion dollars into the U.S. economy. This investment was incentivized by the hope that approximately 5,344/.35=15,000ish visas will be available to these investors plus their spouses and children. (35% is an historical average of principals in EB-5 visas issued.) The number of post-RIA applicants who actually make it to an EB-5 visa will likely be significantly smaller due to country-specific variation and attrition, but the size of the upfront hope is impressive and sobering. Congress has not set aside sufficient annual visa numbers for this level of willingness to invest in economic growth and job creation. We don’t yet know how all I-526E filings break down by country or TEA category (AIIA has another FOIA request in progress for numbers since since November 2023), but this is a lot of prospective EB-5 visa applicants to fit in any lane, including Unreserved given the pre-RIA backlog. EB-5 visa advocacy should already be an urgent priority.

IPO Processing Productivity

As I’ve been reporting based on unofficially obtained data, IPO has made a quantum leap in processing productivity.  The first chart illustrates recent processing volume in historical context. The second chart compares FY24 Q4 processing productivity against the size of the backlog for select EB-5 forms. If IPO keeps processing at this rate, the pre-RIA I-526 and I-829 backlogs at USCIS will be gone within 12 months. And then adjudicators currently proving ability to turn out thousands of decisions per quarter will be able to shift focus and make quick work of the post-RIA inventory and incoming receipts. IPO still hasn’t published the RIA-required timely processing fee study, but even better it has gotten on track to actually realize the RIA timely processing goals in the foreseeable future.

Good news for I-526 and I-829 processing

And finally, I get to report good news! The Investor Program Office seems to be turning a corner with petition processing. Official results aren’t out yet for months since September 2023, but preliminary data for recent pre-RIA I-526 and I-829 completions show the continuation of an encouraging trend. We’re hearing anecdotally about timely post-RIA I-526 and I-526E adjudications as well. Kudos to USCIS Director Jaddou and IPO Chief Emmel, who promised the improvements that we’re now seeing realized. As processing volume significantly increases, processing times have a chance to come down. For detailed analysis of what’s changed behind the scenes with I-526 and I-829 processing, and implications for processing times going forward, see my article “Recovery for EB-5 processing times” guest published on the Houston EB-5 blog. I have a pipeline of articles in process for industry colleagues, and will link here as time permits for publication. I also regularly update the Processing Data page on this blog.

Sensitivity analysis for set-aside visa backlog questions

A couple weeks ago AIIA published the results of a Freedom of Information Act request showing that as of the end of 2023, at least 1,093 rural investors and 2,185 high unemployment investors had filed EB-5 petitions with USCIS. (See the AIIA post for the data and link to an extensive webinar.) Now there’s the battle of interpreting and forecasting from those numbers. What will happen when those investors from 2022/2023, together with their spouses and children, encounter visa availability that’s about 4,000 in the first year and 2,000 in subsequent years for rural, and 2,000 in the first year 1,000 in subsequent years for high unemployment (with further limits from country caps once total visa-stage demand exceeds total supply)? How bad or not-bad-at-all could the backlog situation possibly be for rural and for high unemployment set-asides, considering the scope for variation in assumptions about final visa demand and future visa supply? I think the best industry analysis so far is from IIUSA, which just put out a report by Lee Li “Calculating Demand and Supply for Reserved EB-5 Visa Numbers: Data, Factors, Knowns, Unknows, and Estimates.” I like Lee’s analysis because it doesn’t imply only one possible conclusion from the I-526E data and also doesn’t just say “there’s uncertainty in the variables” and then stop, as if implying that any uncertainty means “so don’t bother thinking about this, you can’t and shouldn’t try to account for this, there are no reasoned conclusions to be drawn, really anything could be possible, believe whatever you/I want you to believe.” Instead, Lee’s analysis models a way to take uncertainty in hand and consider a reasonable range of probability by modeling scenarios. Lee’s analysis focuses on the I-526E inventory as of the end of 2023. We can use the same approach to run scenarios for the possible situation as of today, as exacerbated by another four months of I-526E filings. (To facilitate projections, I recommend getting AIIA’s detailed report of filings by month.)

So long as I’m recommending articles, I’d also like to mention David Bier’s illuminating paper “Green Card Approval Rate Reaches Record Lows” (February 15, 2024). The article isn’t specific to EB-5, but a reminder of demand/supply imbalance issues throughout the immigration system. The charts and graphs alone are excellent and thought-provoking, and I much appreciate his analysis and conclusions.

What the Report of the Visa Office 2023 shows about unreserved EB-5 backlog status for China, India, and ROW

The Department of State has published its Report of the Visa Office 2023, including the final tally of EB-5 visas issued by country through consular processing and adjustment of status in FY2023.

The visa office report can be examined as an indicator of market interest in EB-5 visas, showing the countries of origin for EB-5 applicants in the last year, whether those applicants were already residing in the U.S. (thus adjusting status) or located abroad (getting visas through consulates), whether the applicants invested in regional center or direct projects, and whether the applicants chose Targeted Employment Area investments.  At the very end of this post, you’ll find the tables I typically make to summarize visa office report data relevant to EB-5 market demand. Spoiler: EB-5 visas are still overwhelmingly going to applicants in Asia based on investment in regional center legacy TEA projects. (In FY2023, Department of State was not able to issue any set-aside TEA visas.)

But first, I’ve prepared tables based on my primary interest: what the visa office report tells us about visa backlog status for China, India, and Rest of the World countries. For my first chart, I take FY2023 EB-5 visa issuance numbers and put them in context of the 11/2022 NVC wait list (which shows how many EB-5 applicants were registered and waiting at the National Visa Center at the start of the fiscal year), and FY2023 visa availability (which shows how many EB-5 visas could/should have been issued under numerical limits during the fiscal year).

The good news for everyone: visa issuance in FY2023 met and even slightly exceeded the EB-5 annual limit (at least for unreserved) for the first time since 2017! No unreserved EB-5 visas wasted!

Good news for India and China. DOS did not limit India to 7% of unreserved visas in FY2023, but allowed nearly 7% of total EB-5 visas. China was allocated thousands more visas in FY2023 than one might have expected given the number of “rest of the world” applicants waiting for visas. On the other hand, Chinese and Indians should note the difference between applicants who were registered at NVC in late 2022, and consular visas issued in 2023. The difference equals the number of applicants who were already waiting in 2022 and apparently still waiting a year later: a difference that gives a reality check for interpreting the visa bulletin. Realizing that 731 Indians who registered at NVC in 2022 or earlier still didn’t have visas in late 2023, we know that the inventory of pre-2020 Indian priority dates can’t be clear, regardless of visa bulletin dates, unless denial rates were extremely high. I’ll be interested to see the NVC wait list as of 11/2023, which should be published shortly.

I’m most concerned looking at the visa issuance numbers for countries other than China and India, which are not limited by country caps and yet left many applicants behind. (As DOS clarified in 2023, country caps only limit the short list of countries that exceed 7% across all EB+FB categories. China and India are the only countries that are both high demand in EB-5 and also high demand across all visa categories. But countries without the individual 7% limit can still run up against constraints.) Of the more than 5,000 Rest of World EB-5 applicants registered at the National Visa Center in late 2022, over 3,000 didn’t get visas in FY2023. Those applicants weren’t constrained by anything in FY2023 except consular capacity to schedule interviews; technically 3,000 visas could have gone to them in FY2023 instead of being considered “otherwise unused” and assigned to China over China’s country cap. (Unless denials account for a significant part of the gap, but the consular EB-5 denial rate is historically not very high — averaging 9% in 2016-2021.) DOS apparently left many ROW applicants to wait in a small backlog, which I foresee is about to become a large backlog as USCIS is finally aggressively approving I-526 and advancing thousands more ROW applicants to the visa stage. (Another post on this coming soon – the latest I-526 and I-829 processing numbers are excellent.) Backlogs can be a wait time issue even for countries not subject to country caps, as you know by looking at any visa bulletin and seeing the final action dates for ROW in EB-2, EB-3, and EB-4. The backlog tipping point in EB-5 for “rest of the world” countries will come when ROW applicants for unreserved visas collectively exceed 86% of unreserved visas available – i.e. when ROW unreserved reaches about 6,000 applicants. (Logic: Chinese and Indian unreserved applicants have older priority dates than most ROW applicants, so Chinese and Indians will get allocated EB-5 visas first up to the 7% cap for each country, collectively claiming 14% of visas. So more recent ROW applicants collectively can’t be allocated more than 86% of visas in a year, and any ROW applicants exceeding that threshold will be cut off by the visa bulletin and have to wait for visa availability in a future year.)

I went on to make a table showing the multi-year trend in visa availability, demand, and issuance for China, India, and ROW. The table highlights the tragedy of 2020-2022, when COVID-19 followed by the nearly year-long regional center program shutdown resulted in the loss of 25,880 EB-5 visas. The table illustrates that processing capacity for ROW visa issuance has been a long-term problem, with consulates regularly issuing thousands fewer visas than available to and demanded by ROW. On the other hand, this problem for ROW has been a boon to applicants from China, whose numbers depend on the number of visas leftover from ROW (except in 2020-2022, when China’s numbers sadly depended on a closed consulate and closed regional center program).

In thinking about supply and demand for unreserved visas, we want to not only look at what’s been happening at the visa stage, but also visualize what’s coming down the pipeline as more I-526 get approved. The following table shows the steps I take to estimate the total pipeline demand for unreserved visas as of the end of 2023. Note that this table only estimates demand from pre-RIA investors. Any post-RIA investors who go for unreserved visas will be placed – based on priority date order – at the end of the pre-RIA queues. In other words, my estimate of the existing unreserved visa pipeline suggests that a post-RIA applicant for an unreserved visa would find himself #40,000+ in the China unreserved queue, #5,000+ in the India unreserved queue, or #15,000+ in the Rest of World unreserved queue. Not the place to be, with only 6,800+ total unreserved visas available annually! We’re concerned to see the set-aside queues filling up, because there’s obviously no room for spill-over into the unreserved category.

And finally, tables summarizing market-relevant data from the Report of the Visa Office 2023.

Update on I-526 and I-526E filings to 11/2023 (pipeline demand for rural and HU visas)

See “AIIA FOIA Series: Updated I-526E Inventory Statistics for 2023” (February 29, 2024) for another important update on pipeline demand for rural and high unemployment set-aside visas. I helped make the charts for this article, and encourage everyone concerned about potential backlogs and wait times to read the article, donate to AIIA (so they can keep doing this!), get the Excel from AIIA with all the details, and work on your own analysis. (Shout-out to Matt Galati, who donated his formidable litigation skills to pushing the data request through the FOIA process.)

I don’t have time at the moment to write in detail about what I see, and in any case I advise that you start by grappling with the facts yourself. Then you’ll be prepared to interpret the variety of motivated/limited conclusions that you will hear from others. EB-5 supply/demand and timing analysis is complicated in detail but basically simple: demand > supply = backlogs and wait times. And so we try to track demand.

The data we can get from USCIS — a count of I-526 and I-526E receipts by petitioner country of origin and TEA category — is not an exact predictor of future visa demand. But it’s extremely useful to know, at least, how many investors have entered the queues for rural and high unemployment visas, even as we have to guess about factors such as queue speed through USCIS processing, denial rates, family sizes at the visa stage, and pace of incoming demand since the last report. (I refer to the new queues as “pipeline demand” for rural and high unemployment visas, because so far it is still mostly just in the pipeline, not at the visa stage. I watch the Department of State monthly visa issuance reports, and no set-aside visas had been issued by consulates yet at least up to last report for January 2024.)

A note on dates: it’s a little hard to tell how many months are fully accounted for in the latest FOIA response. USCIS sent AIIA a table with rows through January 2024, but entered just a few numbers in the rows for recent months. Unless people almost stopped filing petitions over the winter, I guess that the latest FOIA request gives data that’s complete through at least October 2023, only partially counted for December and January, and maybe partially counted for November. (If only USCIS had better systems, and could just print reports without so much struggle and fuss! As it is, I suspect that these FOIA responses require someone going to the warehouse and shuffling through paper to make a tally.) But even if we only look at the I-526 inventory accumulated up to November 2023, there’s already a significant message about demand versus future supply of EB-5 visas.

FY2023 Q4 EB-5 Form Data Report (I-526, I-526E, I-829, I-956, I-956F)

USCIS has updated the Immigration and Citizenship Data page with reports for forms filed and processed through FY2023 Q4 (the year and quarter ending September 30, 2023). For EB-5 numbers, I look at All USCIS Application and Petition Form Types (Fiscal Year 2023, Quarter 4) (PDF, 183.88 KB), the California Service Center numbers at Application for Adjustment of Status (Form I-485) Quarterly Report (Fiscal Year 2023, Quarter 4) (PDF, 337.2 KB) and Form I-140, I-360, I-526 Approved EB Petitions Awaiting Visa Final Priority Dates (Fiscal Year 2023, Quarter 4) (PDF, 121.52 KB). I enter the quarterly numbers in my spreadsheets and compare against previous reports to identify trends and answer questions.

My top questions when I look at new EB-5 data: what’s the latest news on pipeline demand for post-RIA visa numbers? How many regional center projects are on the table, and what progress is USCIS making in adjudicating project applications and investor petitions? Are processing volumes increasing or decreasing for pre-RIA and post-RIA forms? What’s the latest news on I-956 and I-956F processing times?

Trend for I-526 and I-526E receipts

Are post-RIA investor petition numbers continuing to climb? How does incoming and cumulative demand look when compared against set-aside visa availability?

Answer from Q4 data: The linear upward trend continued, for a cumulative total of over 2,600 post-RIA I-526 and I-526E filed as of September 30, 2023. (The figure could be nearly 3,000 if one sums quarterly receipt numbers instead of believing the period-end pending and processed numbers.)

If we assume a visas-to-investor ratio of at least 2-to-1 (thinking about family sizes and denials), then 2,600 petitions filed translates into potential demand for at least 5,200 post-RIA visas accumulated in the pipeline as of September 2023. If we guess that filings in Q3 and Q4 continued the previous category breakdown (known from AIIA’s FOIA request of data through Q2) of 23% rural and 70% high unemployment, that would likely mean at least 1,200 pipeline rural applicants and at least 3,600 pipeline high unemployment applicants accumulated by September. If we guess that demand since April moved 100% to rural (the unlikely worst-case scenario for rural and best-case scenario for HU), that could mean at least 4,000 rural and 2,000 HU visa demand in the pipeline by September 2023. The pipeline — continuing to grow as I-526E continue to come in — is headed toward visa availability of about 4,000 rural/2,000 high unemployment in the first year, and about 2,000 rural/1,000 high unemployment in subsequent years. Important considerations for people wondering about future visa wait times that are a function of visa demand exceeding visa supply.

I-526E filings show strong demand to invest in the U.S. and support U.S. job creation; we need visa numbers sufficient to support and sustain that potential. An important advocacy focus for the EB-5 industry, as we face 2024 and beyond.

I-956 and I-956F Volume and Processing Times

How many projects are potentially out in the market raising EB-5 capital, and how many have been reviewed by USCIS? How many regional centers has USCIS reviewed for compliance under RIA?

Answer from Q4 data: USCIS reports a total 12 I-956F project applications processed in FY2023, and 231 I-956F project applications still pending at year-end. In other words, USCIS had reviewed only 5% of the total projects potentially out raising funds. However, I have personally heard about many I-956F approvals in December 2023, so hopefully the next quarterly I-956F report will look better. And I’m happy to see that USCIS has reviewed at least 148 (nearly 40%) of the 379 I-956 regional center applications filed through September. For whatever reason, USCIS is not disclosing denial rates for either I-956 or I-956F – only reporting on total forms processed. The median processing time looks good for the few forms that did manage to get processed – 9 months for I-956 and 12.8 months for I-956F. (This is a nice reference for applicants whose forms that didn’t get processed yet, and who may want to file Mandamus actions.)

from Processing Data Report for FY2023 Q4 (July 1, 2023 to September 30, 2023)

Post-RIA I-526E processing

How is USCIS doing on advancing post-RIA applicants to the visa stage by approving I-526E investor petitions?

Answer from Q4 data: I-526E processing data appears for the first time on the Q4 report, which records 63 I-526E approvals (no denials) both for FY2023 Q4 and the full year. If all 63 investors whose I-526E were approved in FY2023 Q4 can manage to get a FY2024 visa, that’s about 120 to 240 post-RIA visas. Not near the thousands of carryover visas available on a use-it-or-lose-it basis to set-aside categories in FY2024, but much better than nothing!

Pre-RIA I-526 and I-829 Processing

What’s happened to pre-RIA petition processing as USCIS also tries to accommodate the post-RIA workload? Are we anywhere near digging out of the processing collapse that started in 2019? How long will it take to clear the current I-526 and I-829 backlog, if recent processing volume continues?

Answer from Q4 data: USCIS has not abandoned pre-RIA petitions, and obviously made extra effort to improve I-526 and I-829 volumes for the fiscal year-end. There’s been a fairly consistent improvement trend since the rock bottom of 2021, which is great to see. But in a wider context, the best efforts of FY2023 Q4 are still only barely as good as mid-Pandemic processing volume, and still three times lower than the I-526 volumes USCIS was achieving prior to 2019. FY2023 ended with just under 10,000 I-526 and 10,000 I-829 pending. You do the math for how long it would take to clear that inventory if USCIS continues to adjudicate at a rate of 1,300 I-526 and 800 I-829 per quarter. The Investor Program Office must continue to ramp up its efforts (not slack off, as we’ve seen so far in the months since September).

People at the back of the inventory for I-526 and I-829 processing need not necessarily despair about their processing times, however, because processing is not close to FIFO. I know from other sources that USCIS has recently primarily been processing I-526 filed in November 2019 – nearly the end of the I-526 queue – and has been approving many I-829 filed in 2020, 2021, 2022, and even 2023, even as the median I-829 processing time reflects cases filed in 2019. See the charts below and on my regularly-updated Processing Data page the processing distribution of recent I-526 and I-829 approvals.

The I-526 denial rate continues to appear very high (37%); however, I have inside information that more than half of the decisions reported in the I-526 denial category in Q4 were actually voluntary withdrawals. The I-829 denial rate was 15% in Q4 — slightly higher than average. USCIS has reported no I-526E denials yet.

And finally, a note for anyone who benefits from my data reports that you are welcome to help make all this work worthwhile with a Paypal contribution. Happy New Year!

from Processing Data Report for FY2023 Q4 (July 1, 2023 to September 30, 2023)

Running ahead in the January 2024 Visa Bulletin

The January 2024 Visa Bulletin has holiday cheer for some EB-5 applicants, with final action date movement for Unreserved EB-5 to December 8, 2015 for China and to December 1, 2020 for India. I read this move as good news for all Chinese with pre-12/8/2015 priority dates, a lucky break or at least a nail-biting possibility for the 1,000 Indians with pre-12/2020 priority dates who fortuitously happen to be closest to visa interview/I-485 adjudication right now, and a blow to the 2,000+ Indians with pre-12/2020 priority dates who will watch others get visas while they remain mired in slow I-526 and visa processing.

I interpret visa bulletin movement against the background of I-526 filings by month, because that’s what VB dates represent: priority dates from people who started the process by filing I-526, and now signaled by filing date at the visa stage. When the VB moves final action dates from Date A to Date B to Date C, I count up the I-526 filed between those dates, look at visas issued and available, and think. (To assist everyone else in the same exercise, here’s my Excel with the needed data and example analysis.)

One could assume that a visa bulletin Final Action move from Date B to Date C means “Department of State must have finished issuing visas to priority dates between A and B, and must expect everyone  between B and C to get visas shortly.” With regard to the dates for filing, one assumption is “DOS must expect that the current filing date will become the final action date within a year.” To check those assumptions, I consult I-526 filing numbers. The interpretations are reasonable if expected visa applicants (I-526 principals less denials plus family) are plausibly consistent with recent visas issued and/or near-term visas available. If not, then we consider the alternate possible interpretation of visa bulletin movement: “A lot of people between Date A and Date C must be tied up in slow I-526 processing, and reaching the visa stage out of priority date order, with the result that some but not all priority dates up to C are documentarily qualified and may get visas shortly, while Date C will retrogress when the remaining applicants in those dates eventually become qualified. Meanwhile, the filing date must have been set to stimulate more qualified applicants but unlikely to become the final action date any time soon, considering how many applicants in the pipeline would qualify within the filing date movement.”

About 1,600 Indians filed I-526 between December 2018 and December 2020 (the India Visa Bulletin movement this year), and about 3,000 Chinese filed I-526 between October 1 and December 8, 2015 (the China VB movement). Adding assumptions about denial rates and family sizes, that could generate about 3,000 Indian visa applicants and at least 4,000 Chinese applicants. FY2024 has about 1,000 EB-5 unreserved visas available to India, and possibly up to 9,000 available to China. Against this background, it’s plausible that every Chinese with a pre-12/8/2015 priority date who still wants an EB-5 visa might possibly get one in FY2024. For India, evidently less than half of pre-12/1/2020 priority dates could possibly fit into this year’s visa availability, even if DOS had already cleared the backlog of pre-12/1/2018 Indian priority dates (which it can’t have done, considering the previous NVC waiting list and visa issuance, and dates on still-pending I-526). The difference between China and India is backlog location. Chinese with priority dates before 2016 are nearly all out of I-526 processing and thus on the visa bulletin radar, while many Indians with priority dates in 2019 and 2020 are still awaiting I-526 adjudication or not yet documentarily qualified (and thus not yet possible for the visa bulletin to consider).

If I’m an Indian with a November 2019 EB-5 priority date (one of the 745 Indians who filed I-526 in November 2019), how likely am I to get a visa this year? It depends on whether I happen to be already documentarily qualified at the visa stage now, and on I-526 processing volume and order for other Indians. Resorting again to a transit analogy, it’s like being passenger #20 on the standby list for a flight with 10 seats remaining to be allocated. If all 20 standby passengers were at the gate ready to board, I’d have no hope. But let’s say that only five passengers are at the gate, while the rest are caught up in traffic and security screening lines or decided to stay home or catch another flight.  The five already at the gate have a chance for seat assignment just because they’re on the spot, regardless of list priority – provided that not too many others on the list can eventually make it through security and come sprinting down the concourse in time to claim seats before the flight has to depart. There’s even some hope for the passenger #20 still currently stuck in security screening – if only he can count on unfair queue times advancing him while holding others back, such that only he and four other passengers will reach the gate in time for seat assignment. The situation can play out this way in EB-5, as low-volume and non-FIFO I-526 processing advances Indians to the visa stage in dribs and drabs, and out of priority date order, so that visa allocation can come joyfully earlier for some and sadly later for others than a FIFO calculation would anticipate. Meanwhile, the EB-5 context also has analogues to standby passengers who end up just staying home (giving up on immigration) or catching another flight (e.g. EB-1 or EB-2), thus relieving wait times for those who persist in trying to catch an EB-5 visa.

As further background and material for prediction, here is my estimate of the current size and location of the pipeline for unreserved EB-5 visas (assuming an average two visa applicants resulting from pending I-526, and guessing about country distribution of I-526 adjudicated since last year). I’ll be able to update the estimate once Department of State updates the NVC waiting list, and USCIS publishes more recent I-526 approval numbers.

Analyzing the demand/supply balance for rural and high unemployment set-aside visas

EB-5 is an investor visa program. The promise of visa eligibility is what attracts an EB-5 investment, and visas are subject to numerical limits. EB-5 has nothing to sell beyond those limits except empty promises, so we have strong reason to track pipeline visa demand and inventory.

Like promoters for a general admission stadium concert, regional centers and issuers should know the number of seats in the stadium (EB-5 visas available) and number of tickets already sold for each section (I-526 filed by visa category). EB-5 inventory tracking is stressful considering multiple parties offering tickets, small supply, enthusiastic demand that’s historically exceeded stadium capacity, and a government that resists disclosing the status of ticket sales. But we do our best, because self-interest depends on it. I don’t only care to avoid the fraud of investor visa offerings without visas. I want to assess potential market size and predict how long EB-5 business can last.

The best post-RIA EB-5 inventory intel to date is from an AIIA Freedom of Information Act request, which got data for I-526 and I-526E filings through April 2023, itemized by TEA category and investor country. I previously linked to AIIA’s article on the data, and the AIIA member webinar was published today on Youtube for anyone to watch.  I recommend the webinar for a good collection of data slides, and for discussion by a panel including yours truly, Halston Chavez (Galati Law), Joseph Barnett (WR Immigration) and Charles Oppenheim (formerly of the Visa Control Office at Department of State, now at WR Immigration). We talked about translating I-526 receipt numbers into visa demand calculations, and analyzed supply factors including how carryovers and country caps work. The webinar is a great chance to hear from experts who approached the topic from different angles and without trying to sell anything or feed a message, just aiming to empower listeners. Thanks to AIIA for organizing, and to Galati Law for helping to obtain the data from USCIS.

This post is another attempt at the tough task of simplifying/explaining a complex picture. Table 1 summarizes the FOIA data, and Table 2 offers a big-picture visa supply/demand comparison. The headline: pipeline demand for the high unemployment set-aside category was already entering backlog territory as of April 2023, the rural category had some demand but still well below foreseeable visa supply, and the infrastructure category remained untouched.

Table 1. Number of I-526 and I-526E filed April 1, 2022 to April 30, 2023, by TEA Category and Country of Chargeability (summarized from data in the USCIS response to FOIA request by AIIA)

Table 2. Estimated Pipeline Demand for High Unemployment and Rural Visas Compared with Supply

Summary of conclusions from Table 2 estimates:

• Table 2 is designed to facilitate big-picture/ballpark estimates of how close we were as of April 30, 2023 to maxing out visa availability in EB-5 set-aside categories. Column B gives a pipeline visa demand estimate calculated from I-526 filings, while Columns D and E show approximate annual visa supply.
• When I look at Table 2, I first look at the totals in B and D. When Total D > Total B in a category, then we’re not looking at backlog risk for the first tranche of Chinese or Indian applicants in that category. If Total D < Total B, then I start looking down at country-specific supply/demand numbers and thinking about backlogs/wait times. Column D represents a year fattened with carryover visa supply; once the first tranche of applicants absorbs those visas, subsequent years (Column E) will have half the supply and even greater backlog risk.
• The Rural category was looking good as of April 2023, with over 4 visas available in a carryover year and over 2 visas available in a normal year for every one applicant estimated to be in the pipeline at that time.
• The High Unemployment category appears already approaching the danger zone as of April 2023, with total pipeline visa demand sufficient to exceed total annual supply even in a year with extra carryover visas. That level of demand would be twice available supply in a normal year, and place China and India far beyond their assured visa supply under country caps. Relatively high “rest of the world” demand represents a limit on the number of visas that could be left unused (i.e. available for China/India), and also a signal that even Rest of World could exceed visa availability and face wait times. I could see the existing high unemployment set-aside backlog risk being averted if I-526E denial rates prove very high (which could well happen if a few big projects get rejected), if a significant number of people who filed for the high unemployment set-aside are actually issued an unreserved visa (which could possibly happen as a result of multiple classifications on approvals), or if it turns out that demand for high unemployment set-aside investments tanked after April 2023. Absent widespread denials or diversions, however, the market for high unemployment set-asides (especially from Chinese and Indians) can’t afford to continue at the rate exhibited up to April 2023.
• Table 2 gives a pipeline demand estimate as of April 30, 2023 based on about eight months of I-526 filings. To estimate where we are today, about eight months later, you could more or less double the figures in Column A and B — depending on whether you guess that demand for each category has been more or less brisk through the end of this year. The following are notes on the numbers and assumptions in Table 2, column by column, and examples of how to use Table 2 for calculation.

Column A: I-526 input

• The input fact in Table 2 is total number of I-526 and I-526E filings for set-aside categories from when the set-aside categories become available in 2022 up through April 2023. USCIS reported the categories checked by petitioners on Form I-526 and I-526E. The classification assigned by USCIS on approval, which is what really matters for the visa, may vary.  (USCIS might not approve the requested TEA, or might choose to approve the I-526E in more than one visa category.)
• The data AIIA received is monthly, and indicates an fairly even volume of receipts September 2022 to April 2023. If you guess similar volumes after April, then double the numbers in Column A to ballpark estimate totals as of today. Or if you sense that the investment/filing pace picked up or slowed down after April 2023, for rural and/or high unemployment categories, then adjust the multiplier accordingly to estimate total filings as of today. (AIIA has already filed an updated FOIA for more recent data, but pending response we have to guess.)

Column B: visa pipeline demand estimate

• The pipeline visa demand estimate comes from estimating how many successful visa applications will result from I-526/I-526E filings by investors. This estimate considers the fact that not every petition/application will be approved, and that the investors counted on I-526 will later be joined by family members at the visa stage. I tend to multiply I-526 receipts by 2 for a rough estimate — for simplicity and assuming a 25% denial/attrition rate and average family size of 2.8. Those numbers are basically consistent with EB-5 history, but use a smaller or larger multiplier if you guess that future denial/attrition rates or actual average family size will be higher or lower.
• I call the Column B estimate “pipeline” visa demand because these people are nearly all awaiting petition processing at USCIS, and thus not visa applicants yet. But they are in the pipeline queue. The high unemployment applicant with May 1, 2023 priority date could look at the total in Column B as the estimated size of the queue ahead. If people associated with priority dates up to April 30 will claim 2,180 visas, then the May 1 applicant would wait for the 2,181th high unemployment visa.  If another 2,000 high unemployment applicants have come in since April 30, then today’s high unemployment investor would expect to wait for over 4,000 other applicants to claim high unemployment visas in advance of him. (The reality is more complicated because country cap limits eventually trump priority date order, but this is the general idea.)

Column C: Visa supply allocation

• So long as total supply for high unemployment visas exceeds total qualified demand, there’s no need for traffic control, and the visa bulletin and country caps don’t get involved. In a low-demand scenario, available visas simply get issued in priority date order to those ready to take them, regardless of country. In a year with fewer than 800 total applicants for over 4,000 total visas available, all applicants could expect a visa regardless of country of origin. On the other hand, if a year has 2,200 applicants vying for 2,000 visas, then the visa bulletin will activate to hold back 200 applicants. And the first applicants to be held back will be from countries exceeding the country cap.
• Of the country-cap limited countries (named in every Visa Bulletin Section A.3, usually and currently “CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES”), only China and India also have high EB-5 demand, which is why I itemize only those countries in Tables 1 and 2. Vietnam, South Korea, and Taiwan are other countries with relatively high EB-5 demand, but the visa bulletin does not apply country caps to them because their total demand across EB+FB categories is not excessive. (As a reminder for how country caps work within categories and to whom they apply, review Section A in any Visa Bulletin, the EB-4 Federal Register explanation, this handy slide visual from the AIIA webinar, and Charles Oppenheim’s explanation from the AIIA webinar. Vietnam is a marginal case because it has appeared on the visa bulletin A.3 list in the past, starting in 2018, but it hasn’t been listed since 2021. China and India, on the other hand, have consistently been excess demand countries on the visa bulletin list every year since 2005.)
• When qualified visa demand exceeds supply, then people from country-cap-limited countries get limited to 7% of available visas plus whatever is left after rest-of-world demand. 7% is not a ceiling for China or India – it’s a baseline that can be increased to the extent that visa demand outside those two countries takes less than 86% of category supply that year. For example, what if the estimated high unemployment applicants in Table 2 Column B (2,180 total, 858 Chinese, 360 Indians, 962 Rest of World), were all qualified together in a year with 2,000 visa available. How many visas would be issued to Chinese that year? My best guess would be about 730, calculated as 140 (7% of supply) plus a share the difference between 1,700 ROW visas available and 962 ROW visas demanded.  Chinese and Indian applicants should pay attention to the Rest of World demand number even more than the 7% supply number, because ROW demand is what ultimately constrains the visa availability for China/India.  
• Can countries unlimited by the 7% country cap still potentially run short on visas? Yes, as evidenced by the visa bulletin, which currently has cut-off dates for everyone in EB-2, 3, and 4. EB-5 historically avoided this risk, because EB-5 demand used to be so concentrated in China and visa availability wasn’t so fragmented. But today, with about 40% of EB-5 demand coming from “rest of the world,” and supply numbers within each set-aside category relatively small, “rest of the world” also finds itself on the backlog radar. For example, what if pipeline high unemployment visa demand has reached 2,000 by now, and what if all those applicants reach the visa stage in FY2025? In a year with 2,000 ROW applicants for at most about 1,700 visas available to ROW (2,000 minus 7% each to China and India), the visa bulletin would have to use dates to hold back the 300 excess ROW applicants until the next year’s new supply can accommodate them.

Column D and E:

• TabIe 2 uses supply numbers rounded to the thousand to facilitate eyeball estimates. For detail of how annual supply gets calculated, with nuances from falling post-COVID EB limits and carryover as a function of usage, see Table 3 below. Considering processing times, I expect that we won’t see pipeline demand for EB-5 set-asides reaching the visa stage in a big way until FY2025. So I’m assuming few set-aside visas issued in FY2024 and thus maximum carryover numbers in FY2025. But I would love to see many set-aside visas issued this year, taking advantage of an unusually high limit and reducing pressure on future supply.

Table 3: EB-5 Visa Supply Detail

Demand for EB-5 Set-aside Categories

Thanks to persistence by AIIA and litigation by Galati Law, we finally have a first installment of data to discuss relative to demand for the new EB-5 set-aside categories. USCIS responded to AIIA’s Freedom of Information Act request, and reported I-526 and I-526E receipts by month from April 2022 to April 2023, itemized by category (including rural and high unemployment) and by petitioner country (including China and India). See AIIA FOIA Series: I-526E Inventory Data for Backlog Assessment for a summary of this extremely consequential information. The article includes an invitation to a webinar on November 15, 2023 at 6:00 PM ET, where I’ll join AIIA, Galati Law, Joseph Barnett, and Charles Oppenheim to discuss the data and implications for reserve visa availability.