USCIS announced on January 29 an operational change in the EB-5 application adjudication process. Previously, USCIS adjudicated EB-5 applications in a first come first serve basis. Applications that were received first will be processed first. From March 31, 2020, USCIS will prioritize petitions that are submitted from applicants from countries with current visas. For more information about the EB-5 visa and the recent changes to the program, please click here.
Under current U.S. immigration law, the waits for an immigrant visa (green card) is based on your place of birth. Retrogression happens because of the per-country limit of visas that was imposed by Congress. The Immigration and Nationality Act (INA) specifies that a single country can only be allotted 7% of the combined total number of visas allotted to family-preferences and employment-based. In 2017, this meant that 25,260 immigrant visas were given to any single country. New visas become available at the beginning of every fiscal year. For EB-5 visas, the 10,000 per year that are available are allocated to countries also and there are limits per country.
If the number of applicants from a specific country is lower than the total number of visas allotted, then all the applicants will have a visa available to them. If the number of applicants from a specific country is continuously higher than the number of visas year after year, this creates retrogression, or a waitlist of people who have to wait in line year after year until a sufficient number of visas becomes available. As such, an engineer from Iceland might wait less than a year for a green card, while an engineer from India can endure a wait of a decade or much longer.
According to the most recent February 2020 visa bulletin, the EB-5 visa is current for all countries expect for Mainland China (retrogressed to December 1, 2014), India (retrogressed to September 1, 2018), and Vietnam (retrogressed to December 15, 2016). This means that USCIS will adjudicate applications from these three countries later than other non-retrogressed countries.
USCIS have stated that this operational change is consistent with the agency’s processing of Form I-130, Petition for Alien Relative, in cap-subject categories. The new visa availability approach simply gives priority to petitions where visas are immediately available, or soon available, and will not create legally binding rights or change substantive requirements. Applicants from countries where visas are immediately available will now be better able to use their annual per-country allocation of EB-5 visas. The new visa availability approach will apply to petitions pending as of the effective date of the change. USCIS will implement the visa availability approach on March 31, 2020. For information on options for applicants from retrogressed countries, please click here.
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