Charles Oppenheim, Chief of the Immigrant Visa Control & Reporting Division of the Department of Status, provided an update about the use of and projected availability of visas for the Employment-Based-5th preference (EB-5) during the IIUSA EB-5 Industry Forum on October 29, 2019 in Seattle, WA, see AILA Doc. No. 19103106. (Posted 10/31/19).

Overview

The EB-5 visa category is a path to an immigrant visa, or green card for foreign nationals who have invested a required minimum into a business in the US and employed at least 10 US employees.  The investment minimum has been $1 Million or $500,000 in a Targeted Economic Area (“TEA”). As of November 21, 2019, the required investment level will be raised to $1.8 Million or $900,000 in a TEA.

The EB-5 category is current for all countries except India, China, and Vietnam.  Investors from these countries have been waitlisted for some time now. Each year, approximately 10,000 visas are available for the EB-5 category, this number can vary slightly due to a number of factors.  At that level, each country is eligible to use up to 700 visas per year, with the exception of China which is only allocated 70 under the Chinese Student Protection Act. Unallocated visas visas may be allocated to countries that have reached their limit, and are reallocated according to priority date.  Because China has the longest backlog and the oldest cases in line, the actual number of visas is allowed to China could be closer to 3,000 a year.

Increase in Visas Available in FY 2020

FY 2020 (October 2019 – September 2020) may see an increase in the number of visas available in the EB-5 category at large, as well as for the backlogged countries.  This is due to unused family-based immigrant visas (green cards) being reallocated across all the employment-based categories and fewer approved petitions being received by the National Visa Center last year.  Mr. Oppenheim estimated that 11,000 visas will be available this year, with 770 as the per country maximum.

Estimated Wait Times for New EB-5 applications (Form I-526)

Mr. Oppenheim reported that for Form I-526 filings made on October 29, 2019, he would estimate that the wait time for processing and visa availability would be:

  • China: 16.2 years 
  • Vietnam: 7.1 years 
  • India: 6.7 years 
  • South Korea: 3.0 years 
  • Taiwan: 1.9 years 
  • Brazil: 1.4 years

These estimates are the worst case scenarios.  They assume 3000 visas available per year for China and 700 per year for all other countries.  Although these times are lengthy, there is some good news in that the estimated wait time for investors from India has shortened by a couple of years since the last update in May 2019.  The previous Department of State estimated the wait time for Indian investors was 8.4 years.  

It is unclear at this point, what impact the increased investment requirements will have on the number of applications received in the next year.  It is not difficult to imagine that the number of applications will decrease, but Mr. Oppenheimer did not address this point specifically.

Predictions for Future Final Action Dates.

Mr. Oppenheim predicted the following Final Action Dates for EB-5 at the beginning of FY 2021. Note that these are only estimates, and often these estimates must be revised later in the year based on the many unforeseen variables impacting visa demand or usage: 

  • China

December 2019: November 15, 2014

October 2020 (Best Case Scenario): March 8, 2015

October 2020 (Worst Case Scenario): February 15, 2015 

  • India

December 2019: January 1, 2018

October 2020 (Best Case Scenario): Current

October 2020 (Worst Case Scenario): November 2017 

  • Vietnam

December 2019: December 1, 2016

October 2020 (Best Case Scenario): June 1, 2017

October 2020 (Worst Case Scenario): April 1, 2017

All Other Countries

Will remain current for the foreseeable future 

Principal Investor vs. Derivative Beneficiaries: Visa Allocation Impact

Mr. Oppenheimer pointed out that principal investors, as well as their spouses and children under 21, are all counted against the cap.  The number of dependents per investor visa application varies by country and year, but it has been estimated that if only the principal investor was counted towards the gap the wait times for most countries would disappear.  Such a change would leave China-mainland as the only country with a backlog, and it would shorten to just 2-3 years behind the actual calendar date.

Conclusion

The number of EB-5 Immigrant Investor applications received in recent years has increased dramatically.  Long backlogs have developed for those from China, India, and Vietnam. The long wait times are a necessary consideration when developing your long-term immigration strategy.