There has been much discussion about the impact of "reserved visa" provisions on immigrant visa wait periods, post-enactment of the EB-5 Reform and Integrity Act (RIA). Although many questions about future visa allocation remain unanswered, some stakeholders in the EB-5 program are addressing the issue.
According to Charles Oppenheimer, visa consultant and former Chief of Immigrant Visa Control at the U.S. Department of State, country caps of 7% will apply to each reserved visa category. It could potentially reduce reserved visas for investors coming from countries that are backlogged.
Charlie could be correct that per-country limits apply independently to each EB-5 category, including the set-apart categories. As always, a nation that fulfills the 7% per country restrictions in a category may still get more visa numbers for that fiscal year in that category, provided that other countries do not use up the remaining 93% of the visa numbers in that classification.
The 7% cap might produce a backlog for several EB-5 categories
In the long run, the number of visas available in the reserved categories, especially for regions with high unemployment, may start to become a visible backlog for investors born in mainland China and maybe India, Vietnam, and even Korea fairly quickly once USCIS starts adjudicating I-526E petitions.
Rural numbers with a twofold reserve may take longer to fill up, but if USCIS gives rural investors precedence in adjudications as necessary, usage may be quicker to show up when setting a cut-off.
Any leftovers would go to the I-526/I-526E in each restricted visa category with the earliest priority date. Despite per-country limits, the Chinese were granted 7,000–8,000 visas yearly in 2015–2016.
Even though nation limitations of 7% will apply to each restricted visa category, we do not currently foresee an issue for two basic causes.
The first thing is that all unused visas from Fiscal Year 2022 were transferred to the Fiscal Year 2023, which began on October 1, 2022. As a result, it is estimated that we now have roughly 11,000 reserved visas for the current fiscal year, including 6,800 rural; 3,400 high unemployment; and about 680 infrastructure.
"Leftovers" would be distributed to applicants in each restricted visa category with the earliest priority date once the per-country limitations are reached. Nations with strong demand, such as China, India, and Vietnam, will be eligible to get any remaining visas in the restricted categories. It is how China was able to draw between 7,000 and 8,000 visas in previous years.
We are witnessing demand, but not at the same level as in the previous era, with increasing investment levels of $800,000 and $1,050,000. Because of this, we are convinced that EB-5 applicants from China, India, or Vietnam who file before the end of the first quarter of FY 2023, which is December 31, 2022, won't encounter visa quota backlogs.
Maybe the window of opportunity will be open for most of the fiscal year 2023's second quarter, which ends on March 31, 2023.
The following two years look positive for all applicants, including those from potentially overcrowded countries like China, India, or Vietnam. The Fiscal Year 2024 has a strong allotment of approximately 8,000 reserved visas.
Discussion points for the implementation of the RIA with USCIS and DOS
As per the RIA, the group has provided certain talking points for USCIS and DOS about restricted visas. They advised DOS to reevaluate its decision to deny immigrant investors who submitted Forms I-526 before the RIA's enactment access to restricted visa numbers based on investments in rural or high-unemployment regions. To ensure that every visa number is used to the fullest extent possible during the current fiscal year, they recommended that DOS make the reserved numbers from the prior fiscal year "available for use first."
They advise DOS to place unused carryover reserved visa numbers from the previous fiscal year in the unreserved category for that fiscal year if there is insufficient demand for reserved visa numbers during the current fiscal year.
They suggest USCIS make public the number of applications submitted under each category of EB-5 visas as well as the nation of chargeability for each type of visa. In their "Annual Waiting List at NVC as of November 1 of each year" report, they also recommend DOS provide the same comprehensive information.
The group's final recommendation is for DOS and USCIS to allow the same petition to wait in multiple lines for visa number allocation (i.e. rural, high unemployment, unreserved, etc.) as long as the petition is eligible to reduce the agencies workload and optimize the use of visa numbers across all categories within a fiscal year.
Note: This website's content is meant to be general; it does not constitute legal or financial advice. Only a licensed expert with a total understanding of all the information and circumstances of your specific situation can provide legal or financial advice. Before enrolling in the EB-5 program, you should contact a visa attorney with legal, immigration, and financial knowledge.