EB-5 Updates

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.

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.

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.

EB-5 Form Processing Update through FY2023 Q3 (June 2023)

USCIS has updated the Immigration and Citizenship Data page with reports for forms filed and processed through June 30, 2023.

Highlights from EB-5 Data in The Q3 All USCIS Application and Petition Form Types report

• I-956 and I-956F Processing Times: The report states median processing times for Form I-956 (10.8 months) and Form I-956F (11.1 months), which should help people inquiring with USCIS and considering Mandamus actions. (This is useful reference because the Processing Times page does not report yet on I-956 or I-956F. The USCIS-reported times are practically meaningless for prediction, since they’re calculated as the median processing time only of the ≈77 I-956 and the “D” I-956F processed to date, with no adjustment for the waiting time of the hundreds of applications NOT processed. But pending applicants can still use the USCIS-reported times to their advantage when communicating with USCIS.)  
• Post-RIA EB-5 Demand and Processing: The report shows steady uptick in the number I-526 and I-526E filings, with a total 1,898 post-RIA investor I-526 and I-526E pending as of June 30, 2023. That represents enough EB-5 investors under the new law as of June to claim anywhere from 3,000 to 6,000 visas, depending on approval rates and family size. How we would like to know the country and TEA category distribution of this accumulating visa demand! We’d also like to know whether any of these applicants will be able to claim some of the plentiful FY2024 visas, or if we can expect them to reach the visa stage in future years with smaller visa availability. The number of I-526/I-526E adjudications was still too small to report as of June 30, and processing time listed as “N/A”.
• Pre-RIA Petition Adjudication: In Q3, USCIS reported processing slightly fewer I-526 and slightly more I-829 than in the previous quarter. Overall, the processing volume in Q3 looks like great improvement if compared to last year, but still bad if compared to any other time period. The improvement so far is very welcome, but must escalate to get IPO out of its deep processing hole. Dividing petitions pending at the end of Q3 by petitions processed during Q3, I get the following equations for time to clear the backlog if USCIS continued processing at the same rate as in Q3. I-526: 10,802/888=12 quarters to clear the I-526 backlog.  I-829: 10,507/474=22 quarters to clear the I-829 backlog. (See my Processing Data page for charts illustrating how adjudications have been spread across filing dates.)
• Denial Rates: Denial rates in Q3 were thankfully lower than in recent quarters: 28% for I-526 and 6% for I-829.
• Errata: Comparing the Q3 year-to-date report and pending numbers with previous data reports, I find once more that USCIS is either regularly overestimating and then correcting previously-reported numbers, or regularly losing petitions from the inventory. My charts make the assumption that Q3 numbers are correct where they conflict with previous reports.

EB-5 Form Data from FY2023 Q3 Data Report (April 1, 2023 to June 30, 2023)

Report of EB-5 Forms Processed and Pending FY2023 to date from FY2023 Q3 Data Report

EB-5 Visa Status Report for 2023/2024

Fiscal Years 2023 and 2024 are good years for EB-5 visa availability, with mixed outlook for visa issuance.  I assess the picture by looking at EB-5 quota limits, EB-5 dates in the October 2023 Visa Bulletin and prior visa bulletins, I-526 filing trends associated with visa bulletin dates, the NVC waiting list, monthly visa issuance, and I-526 and I-526E processing trends. The picture that emerges from all this data shows winners and losers created primarily by the processing capacity of USCIS and Department of State. I begin with comments, followed by charts and tables. (9/29 UPDATE: This post has been revised to add monthly data for August 2023 and a revised FY2024 EB visa limit estimate.)

Winners in 2023/2024 EB-5 visa issuance

Win for unreserved EB-5 visa applicants generally

Department of State reports that “most” 2023 employment-based visas available were actually used in 2023 – making this the first year since 2019 without major EB visa loss. And 2024 could be an even better year for unreserved visa issuance, contingent on USCIS and DOS processing capacity. Unreserved EB-5 gets a windfall in 2024 of the 6,400 reserved EB-5 visas not used in 2022, on top of its regular 68% allocation of an unusually high EB-5 limit, for a total of over 14,000 unreserved visas available in FY2024. (See Table 1 below.) If only USCIS and consulates can manage to issue that many visas! Any unreserved FY2024 visas not used in FY2024 will be permanently lost to EB-5.

Win for unreserved visa applicants from India

India continues to be subject to country cap limits, but Mumbai has been issuing EB-5 visas aggressively and efficiently, and the adjustment of status process is working. As result, Indians have received as many as or more than the number of EB-5 visas technically available to Indians in 2022 and 2023 (see charts and tables below).

And the Visa Bulletin is being very generous to India. The October 2023 Visa Bulletin has already moved the India Final Action Date to December 15, 2018, from its pre-retrogression date of June 2018 – thus already releasing more Indian applicants for final action in 2024 than visas available to India in 2024, by my calculation. (My estimate considers the 773 I-526 filed by Indian investors from June 2018 to December 2018, and the about 1,000 unreserved EB-5 visas available in FY2024 under the country cap for investors plus family.) And even more generously, the October 2023 Visa Bulletin gives India EB-5 a Filing Date in April 2022. This allows all Indians in the queue for unreserved EB-5 visas to file I-485 and apply for advance parole and travel benefits — even though EB-5 green cards may not be available for post-2019 Indian priority dates until the end of the decade, absent a large number of dropouts from the current queue. (See my backlog data file for detail, or AIIA’s calculator tool.)

Wins for some unreserved visa applicants from China

Poor performance by many consulates worldwide has meant that rest-of-world EB-5 visa issuance has remained fairly low — below rest-of-world EB-5 demand. This failure benefits Chinese applicants by increasing the number of “otherwise unused” EB-5 visas left available for allocation to the oldest priority dates – i.e. to China-born applicants. EB-5 visa issuance to China in 2023 exceeded what I had expected looking at the waiting list from other countries. (See Table 2 below.) If only the Guangzhou consulate can keep up, the large number of unreserved EB-5 visas available in 2024 should significantly benefit the oldest Chinese priority dates. But it depends on the Guangzhou consulate managing unusually high-volume EB-5 interview scheduling this year.

Another mixed blessing comes from discriminatory policies resulting in high denial rates for Chinese I-526 and visa applications. As hundreds of Chinese keep falling out of the EB-5 backlog due to denials/revocations/withdrawals, those who do remain in the process keep advancing hundreds of spaces closer to getting a visa. The October 2023 Visa Bulletin advances the China EB-5 Date for Filing a whole year — from January 2016 (where the date had lingered since early 2020) to January 2017. This unprecedented large leap potentially allows at least 20,000 more Chinese EB-5 visa applications on the table – or so one would think, knowing that Chinese filed 10,450 I-526 petitions between January 2016 and December 2016. But Department of State must be counting on a large percentage of those 10,450 Chinese EB-5 investors who started in 2016 having subsequently dropped out, or lost their spouses and children, such that their actual visa applications won’t in practice overwhelm the near-term visas available to China. (Depending on rest-of-world visa issuance and Guangzhou capacity, China could get at most up to 10,000 EB-5 visas in 2024.)

Win for a fraction of reserved EB-5 visa applicants

USCIS has recently approved some I-526E, both for rural and high-unemployment projects. Not 100s or 1000s of approvals from what I’ve heard, but at least multiples of 10. USCIS is under pressure to show they are implementing the new law, so they have to adjudicate at least some I-526E instead of just leaving them to wait fairly behind the older I-526 backlog. I’m sure that USCIS can’t possibly manage the 3,000 or so I-526E approvals that would be needed very soon to use the 8,000+ reserve visas available in 2024 (if indeed that many I-526E have even been filed yet). But it’s going to be great for the portion of I-526E petitions that do get approved and advanced in 2024 – they’ll be swimming in visa availability. I-526E that remain pending in 2024 will face narrower visa availability when they reach the visa stage in future years.

Losers in 2023/2024 EB-5 visa issuance

Losses for EB-5 applicants from Vietnam, South Korea, Hong Kong, and Other Countries

Due to USCIS and DOS processing issues, actual EB-5 visa issuance has been lower than demand for many countries with no country cap limit. The National Visa Center had over 5,000 EB-5 applicants registered in November 2022 from countries other than China and India (the only countries with a country cap limit for EB-5). And yet by the end of August 2023, DOS had issued fewer than 3,000 EB-5 visas to those rest-of-world applicants. What’s your EB-5 problem, consulates? You had over 5,000+ EB-5 visas available in 2023 that could’ve gone to those 5,000+ applicants – why not allocate them? (And the problem does seem to be EB-5-specific, since consulates performed pretty consistently overall in 2023 across IV categories.)

Applicants from Hong Kong received fewer than 100 EB-5 visas in 2023 even though over 600 Hong Kong EB-5 applicants were registered and waiting at NVC. What’s the excuse? Why did Ho Chi Minh City issue only 527 EB-5 visas in the first 11 months of 2023, although the year started with over 1,500 Vietnamese registered at NVC (and no country cap limit for Vietnam this year per the Visa Bulletin)? Why do the monthly visa issuance statistics show that many consulates only got going with EB-5 interviews near the end of the year, instead of working consistently throughout the year as they’re supposed to do (or instead of working aggressively at the beginning of the year, as Mumbai did)? In particular, consulates in Seoul, Montreal, Rio de Janeiro, and Bogota did little EB-5 work the start of 2023. Let’s not repeat this pattern in 2024.

There’s a non-trivial risk that unreserved EB-5 could have Visa Bulletin cut-off dates for every single country (as is the case for EB-1 to EB-4) in 2025 or 2026. This could happen if DOS continues to let rest-of-world visa demand pile up from year to year while USCIS keeps adding to the NVC waiting list by approving I-526 from a variety of countries. The investor association AIIA has consular processing problems on its agenda, and we should support efforts to investigate and address this important problem area.

Losses for EB-5 investors who can’t get I-526 or I-526E approval shortly

The Investor Program Office has significantly increased I-526 processing volume in recent months (see my regularly-updated Processing Data page), so I have some hope for visa issuance in 2024. But this great trend must continue and escalate, because 2024 visa availability is only good for qualified visa applicants. People with I-526 or I-526E pending can’t move. The charts on my processing data page reflect the chaotic nature of I-526 processing activity, with some recent cases adjudicated while other older cases get left pending for unknown reasons. The longer I-526 and I-526E remain pending, the more they risk limited visa availability and visa-stage crowds once they finally do reach the visa stage. We depend on you, IPO, to keep increasing processing volume so that EB-5 visas can get issued before they’re lost!

Table 1. EB-5 Visa Availability

Table 2. FY2023EB-5 Unreserved Visa Issuance through Consular Processing

Posts like this take so much time to research and write, and yet can still only answer a fraction of the questions that you may have. I am available to provide additional data and more detailed explanation, and to address individual questions. Just email me at suzanne@lucidtext.com to schedule a paid consultation. I have also made data available on the EB5 Timing and Processing Data pages. For visa wait time predictions, note that AIIA has combined my data library with their FOIA data and created an automated Pre-RIA Visa Wait Time Calculator. The AIIA tool is nice because it’s built around a core of known fact — how many EB-5 investors per country started the EB-5 process by filing I-526 — and then allows the user add assumptions about unknown visa-demand variables such as future family size and denial rates. Note also that IIUSA has a nice article on the topic of FY2023 consular processing, including comparison with previous years: IIUSA Data Analysis: EB-5 Visa Issuance Monthly Data Updates for FY2023 (September 2022 – July 2023).

An Open Letter to Kevin Muck at IPO about I-526 data and avoiding EB-5 backlogs

*******************************

Dear Kevin Muck,

You introduced yourself in the October 2022 EB-5 stakeholder meeting as I-526 Division Chief at IPO, with ten years of experience as an IPO economist preceded by eight years of service at the Bureau of Economic Analysis.

With your background and status, you should be capable and informed about the EB-5 process. But you said something ignorant and dangerous in today’s EB-5 stakeholder engagement.

A question was asked about reporting I-526/I-526E receipt data by TEA category/country, for the purpose of monitoring and avoiding backlogs in the new TEA categories. You responded that stakeholders should consult the Visa Bulletin, and see that the current Visa Bulletin reports TEA categories as “current.”

Think about it, Kevin. Do EB-5 backlogs not exist until they appear at the visa stage/in the visa bulletin? Do you believe that someone filing I-526E today gets visa availability based on the dates in today’s Visa Bulletin?

If you think that, try to look in the face of an Indian who filed I-526 in December 2020, and say “You didn’t need to know about the 2,300+ other Indian I-526 we already had on file at USCIS in December 2020, but didn’t disclose except through FOIA years later.” Try to tell him: “The December 2020 visa bulletin when you filed I-526 said that India EB-5 was current so obviously you were good to go — no backlog for you to worry about when you invested! The visas available to India back when you filed I-526 must still be available to you now, right? Oh… wait… you can’t actually apply for a visa now because India EB-5 now shows as backlogged to mid 2018 in today’s visa bulletin. But how could anyone have guessed? Those visa bulletin dates appear out of nowhere! Surely nothing to do with the number of Indians who filed I-526 in 2018/2019, or our rate of adjudication! Surely IPO was right to ignore Suzanne when she wrote over and over to the IPO Customer Service Mailbox, begging for backlog-relevant I-526 data to enable backlog/wait time prediction! Why would anyone need to ask how many people are entering and lingering in the back of the queue at USCIS, when the Visa Bulletin reports conditions just fine at the terminus of the queue at Department of State?”

Think about it: in a situation where unlimited tickets can be sold for limited seats, why might prospective ticket buyers possibly want to inquire about how many tickets have already been sold?

In a situation where I-526 filing numbers turn into future priority dates for visa issuance, why might anyone possibly want to ask about filing numbers? Do you say — sorry, just wait ’til you all reach the visa application stage and then find out from the visa bulletin?

Kevin Muck, think about today’s prospective investor from China who is considering EB-5 investment with a rural project. With the 20% rural allocation and 7% country cap, that investor can count certainly on competing for one of about 140 visas per year (about 10,000*20%*7%) – anything above that depends on the unknowns of current/future rest-of-world demand and carryover timing. With such limited availability, why might that prospective investor want to know how many Chinese have already filed I-526 for rural projects, whether 80 or 800? Why could that prospect want timely data to show whether/when I-526 volume overall is sufficient to max out the category and activate country caps once the demand reaches the visa stage? Why might she want the receipt data necessary to estimate whether the rural queue already formed at the I-526 stage is of a size to take two years or 10 years to make it past the visa window? And it’s not only investors who want to estimate their investment and immigration horizon at the time of investment — issuers and projects and regional centers require this for their planning as well. And the government also has an interest.

Think about it: what’s the word for soliciting investment with an incentive that might not actually be available? When the U.S. government offers an investor visa incentive, at the same time making it impossible for the investor or issuers to estimate visa availability at the time of investment, I’d call that fraud by the government. It rests on IPO to keep the U.S. government out of such embarrassment by reporting on the I-526 filings that drive EB-5 visa demand and availability.

I have requested this so many times from USCIS, but I know your name and your face now, Kevin Muck, and the size of your salary, and I appeal to you personally. Now that you’ve applied your economist brain to the situation and realize the importance of this data for program integrity, please help make it happen! Here is the report that we need to have USCIS start publishing, at minimum quarterly and at minimum with data no less than three months old. (Even better if we can get monthly reports with data only one month old, but truly anything will be an improvement over current blank silence. USCIS already provides monthly reporting internally to the visa bulletin working group, so adding public reporting should not be a great reach.)

*Note: It seems that we need only these countries in the report, since the Federal Register notice RIN 1400–ZA27 clarified that the per-country limit is only triggered when demand exceeds 7% of all FB and EB visas. Which historically means that only China, India, Vietnam, Mexico, Philippines and Dominican Republic are in the country cap danger zone overall, and the last two can safely be disregarded for this report since they’ve never been remotely significant in EB-5.

That’s all for now Kevin. Thank you for putting yourself out to be faced with challenges like these. I depend on you to talk USCIS out of its practice of concealing I-526/I-526E filing information.

Sincerely,

Suzanne

(For more background and explanation, see also AIIA’s well-researched article How does the Visa Bulletin Work? And for such EB-5 demand data as I have managed to collect by hook or by crook, see my regularly updated Processing Data page and the Excel file I keep linked to the top of my EB-5 Timing Page.)

FY2022 Annual Report of the Visa Office for EB-5 visas issued by country

The Department of State has finished publishing its Report of the Visa Office 2022. The report covers EB-5 visas issued from October 2021 to September 2022, with breakdown by country of origin, path (consular processing or status adjustment), and category (direct, regional center, TEA, reserved, unreserved). I’ve been waiting anxiously for the report, wondering about visa wastage, Integrity Act implementation, and impacts on the visa backlog and EB-5 visa wait times for China, India, and Vietnam.

This post comments on highlights, followed by data tables summarized from the reports.

FY2022 EB-5 Visa Issuance and Wastage

USCIS actually issued 10,885 of the unusually-high 19,987 EB-5 visas available in 2022.   Of the 9,102 EB-5 visas that didn’t get issued in FY2022, 6,396 couldn’t have been issued because segregated in newly-created set-aside categories. (The unused set-asides should carry over in future years, though the FY23 visa limits report doesn’t show the carryover.) The remaining 2,706 unused EB-5 visas in FY2022 were permanently lost to EB-5. (FY2022 is still much better than FY2021, when EB-5 lost 15,673 total visas, and FY2020, when EB-5 lost 7,498 visas.)

Visa wastage particularly affected countries with mostly regional center applicants using consular processing. For example, South Koreans got 695 EB-5 visas in 2019 (the most recent “normal” year) but only 396  visas in 2022 (86% by consular processing), despite the fact that 909 South Korean EB-5 applicants were ready and registered at the National Visa Center at the start of 2022. Hong Kong likewise suffered, with only 142 EB-5 visas issued in FY2022 despite 866 Hong Kong applicants ready at NVC at the start of the year. Meanwhile Indians, many adjusting status in the U.S., managed to get a record 1,381 visas in 2022 – even more than technically available to them under the year’s unreserved visa limit.

Reasons for FY2022 EB-5 Visa Wastage

EB-5 visa issuance in FY2022 was as low as it was largely due to the unfortunately protracted regional center program expiration, and the policy that prevented visas from being issued to regional center applicants from October 2021 to May 2022. (I wish that policy could be litigated on behalf of the over 18,000 EB-5 visas lost during the expiration.) Monthly visas statistics show that all regional center visas issued in FY2022 were packed into just four months: June to September 2022.  

The government had the entire year to issue direct EB-5 visas, but only issued 621, likely constrained by low demand (i.e. few direct I-526 filed and even fewer making it through I-526 processing to the visa stage). By comparison, 414 direct EB-5 visas were issued in the last normal year of FY2019.

Consular processing numbers were also depressed overall compared with FY2019, reflecting on-going struggles with post-COVID backlogs. For color on why the steps in consular processing remain so slow and problematic, see questions and answers in the Department of State/AILA Liaison Committee Meeting February 9, 2023, the NVC Immigrant Visa Backlog report (look at trends in the number of interview appointments, and compare appointment volume with backlog size), and the October 2022 Update on Worldwide Visa Operations. Those in or approaching consular processing should be aware of the NVC Timeframes page, with information on process status and times. The bright side is that consular problems affect not only EB-5 but also family-based visa issuance, and EB-5 benefits in 2023 from a share in FB visas that went un-issued in 2022 (as reflected in 2023’s unusually high EB visa limit).

High Volume of EB-5 Status Adjustments in FY2022

EB-5 visa issuance in FY2022 was as high as it was thanks to an unprecedented high number of status adjustments (37% of the total, as compared with 17% in 2019). For example comparing 2022 with 2019 visa issuance, China got fewer visas last year through consular processing but five times as many visas through status adjustment. 

The unusually high AOS numbers reflect the fact that USCIS got political pressure and made herculean efforts at the end of FY2022 to step up work on employment-based status adjustments, even as consular processing continued to struggle post-COVID.  

Direct EB-5 (and the visa bulletin even briefly becoming Current for China direct EB-5) did not contribute much boost. China ended the year with only 199 direct EB-5 visas issued – not much higher than usual, and not explaining the unexpected thousands of Chinese who adjusted status in 2022.

RIA Implementation, Reserved Visas, and Country Caps

Report of the Visa Office 2022 does segregate EB-5 visas into “5^th Unreserved” and “5^th Set-Aside” categories, reflecting changes to visa availability made by the EB-5 Reform and Integrity Act enacted March 15, 2022. Of course, no visas were issued in 2022 in the “5^th Set-Aside” categories, since no applicants who filed I-526 after March 15, 2022 could have reached the visa stage in time. And according to Department of State interpretation, all EB-5 applicants with pre-March 2022 priority dates can only now qualify for a visa in the new 68% unreserved category, regardless of whether they invested in a TEA that matches new definitions. (I think this interpretation can and ought to be challenged, at at least one lawsuit by DRVC is challenging it, but it’s the fact for now.)

In theory, country caps further restrict availability within each category. Thus pending applicants from any one country can only expect up to 7% of the 68% unreserved EB-5 visas (with “otherwise unused” unreserved numbers going to the oldest priority dates i.e. Chinese).

In 2022, this theory held true for Vietnam but not for India. While both countries have excess demand for unreserved visas, and large NVC backlogs, the government in fact issued 815 EB-5 visas to Vietnam (about 7% of unreserved EB-5 visas) and 1,381 EB-5 visas to India (about 7% of total EB-5 visas). Hmmm…

Was this different treatment of Indians and Vietnamese an oversight, with the government remembering the unreserved limit in the new law for Vietnam while forgetting it for India? 2022 was naturally confusing for the Visa Office, which had to deal with a mid-year law change and leadership change. Or did many Indians get lucky just because they happened to be in the US, unlike most Chinese and Vietnamese EB-5 applicants with earlier priority dates? I wonder if maybe Indians got assigned “otherwise unused” numbers at the end of the year that should’ve gone by right to earlier Chinese priority dates, but practically couldn’t because the consulate in China lacked capacity to hold more interviews in time while the California Service Center had capacity to complete more I-485 and help avoid wastage. (I also wonder if a difference between consular and USCIS capacity to issue visas at the end of the year could explain the unusually high number of Chinese regional center applicants who were able to adjust status in FY2022 — more applicants than one would expect from priority date order.)

Country Diversity

FY2022 was similar to previous years in terms of countries claiming the most EB-5 visas. As in 2019, the top users in 2022 were (in descending order): China, India, Vietnam, South Korea, Brazil, and Taiwan. Meanwhile, Mexico, Canada, Russia, and Iran moved a few notches up the list in 2022, while Venezuela, South Africa, Great Britain, and Japan moved a few notches down. I was surprised mainly by the number of Canadians on this year’s list (why, Canada?) and Iranians (considering the often arduous source of funds path).

Visa Demand Context

For a reminder of the size of the visa queue before FY2022 visa issuance,  see the presentation by Charles Oppenheim for IIUSA in November 2021. At that time, Oppenheim estimated the EB-5 backlog (including applicants already registered at NVC and potential future applicants associated with I-526 pending at USCIS) at 57,253 visa applicants for China, 7,418 for India, 3,954 for Vietnam, and 18,054 for other countries  (see Slide 10).

Visas issued in 2022 reduced those queues by 6,125 visas to China, 1,381 visas to India, and 815 visas to Vietnam. (I assume that I-526 filings in 2022 didn’t grow the queues very much, unless it turns out that most of the 829 receipts last year came from Indians).  

The future wait times associated with that scary queue depend on (1) how many petitioners/applicants in the queue will ultimately give up/lose eligibility before they can clam a visa (likely a large number given the untenable wait times looming for Chinese and Indians near the end of the queue), and (2) how many EB-5 visas will be issued per year from now on, with the base case being 9,940 EB-5 visas * 68% unreserved * 7% country cap = up to 473 to applicants of each country. The actual number of visas available per-country in a given year can be significantly higher than the 473 base case based on carryover of family-based visas (as happened in FY2022 and happening again in FY2023 due to COVID-19), carryover of reserved visas (as should happen in 2024 and 2025 assuming law compliance and continued slow I-526 processing), and unreserved visas leftover after country caps (which should increasingly benefit China in coming years).  But even with the most optimistic assumptions on future visa availability, Chinese who filed I-526 from October 2016-March 2022 and Indians who filed I-526 from November 2019-March 2022 could face five or more years of waiting just for conditional permanent residence. Or would face that wait, except that it exceeds what many applicants (not to mention their RCs, projects, and investments) can practically bear, predictably leading to many queue-shortening drop-outs/failures. Meanwhile, new investors in reserved categories have to sweat over limited availability (with just 20%, 10% or 2% of visas available in each new lane, further restricted under the 7% country cap) and guessing the time for I-526 filings to invisibly build and max out that limited availability. I’ll write more about unreserved and reserved visa availability and wait time issues in separate articles.

The bottom line is that EB-5 suffers from a supply problem. EB-5 needs more visa numbers in order to accomplish what regional centers, investors, and public policy all require: a stable and predictable immigration opportunity that can accommodate new investors plus prevent a despairing rush for the exits for past investors/investment.

Tables based on the Annual Report of the Visa Office