Why are there visa backlogs?

The law sets limits on how many green cards (or immigrant visas) can be issued in any one category. Under the law, EB-5 generally receives about 10,000 visas every fiscal year (from October 1 to September 30 of the following year). If the Department of State expects to issue all of the available EB-5 visas in one fiscal year, a per-country limit is instituted whereby each country can only get 7% of the visas. For EB-5, a per-country limit means that each country can get about 700 visas per year.

When there are more applicants than available visas, the government establishes a cut-off date (published monthly). Every applicant whose I-526 filing date (aka priority date) appears before the established cut-off date is eligible to apply for and receive green cards. If an investor’s priority date occurs after the visa-cut off date, they are not eligible to receive their green cards and must wait until their priority date is current.

WHEN DID THE BACKLOG HIT?

On July 1, 2019, the India EB-5 visa became backlogged with a cut-off date of May 17, 2017. Please see the visa bulletin for the current cut-off.

I was born in India but am a citizen of Canada, will I still be subject to the backlog?

Yes. Unfortunately, the country against which you are “charged” for your visa number is your country of birth. Because you were born in India, your visa and that of your family will be charged against the visa numbers for India.

I was born in India but my spouse was born in UAE, will I still be subject to the backlog?

Good news – you can use your spouse’s country of birth to avoid a visa backlog. If your spouse was born in any country without a visa backlog in the EB-5 category, you and your entire family can avoid the Indian EB-5 backlog.

My spouse and I were born in India but my children were born in Singapore, can we use their country of birth to avoid the visa backlog?

Unfortunately, no. You cannot use your children’s country of birth to avoid the visa backlog. All of you would be subject to the India EB-5 backlog.

Can I “port” my EB-2 or EB-3 Priority Date to my EB-5 Petition?

Unfortunately, no. You cannot use your EB-2 or EB-3 Priority Date for your EB-5 petition. Your EB-5 priority date is the date USCIS received your I-526 Petition.

At what point of the EB-5 process am I safe from the backlog?

If you are an EB-5 investor who already has his or her conditional green card before the visa backlog is established, you will not be subject to the visa backlog.

If you don’t have your conditional green card before the visa backlog is established, you will be subject to the backlog.

Can you provide more details on when I can obtain my green card after the EB-5 visa backlog hits?

  • I-526 Pending or I-526 Petition Approved but Adjustment Application or DS260 Not Filed
    If your I-526 petition was pending when the backlog hit and/or was approved but your adjustment application or DS260 was not filed before the visa backlog is established, you generally have to wait until your priority date is current to apply for your conditional green card. The I-526 approval itself does not give you any status in the U.S. So you must either maintain lawful status in the U.S. or wait for your priority date to become current overseas.
  • I-526 Approved and DS-260 Filed and Pending
    If your I-526 is approved and you were able to file your DS-260 before the visa backlog was established, then you must wait until the priority date is current before you are scheduled for a visa interview. Having an I-526 approval and a pending DS260 does not give you lawful status in the U.S. Therefore, if you want to stay in the U.S., you must have lawful status in the U.S. or await your interview date overseas.
  • I-526 Approved and Adjustment Application Filed and Pending
    If your I-526 is approved and you filed your adjustment application before the visa backlog was established, you can apply for work authorization and advance parole (travel document) as part of your adjustment application. Once the work authorization and travel permit are approved, you can work in the U.S. and travel internationally without maintaining an underlying non-immigrant visa status. Note: Before you travel or work on the EAD/AP, it’s important to seek attorney advice to determine if this is the right option for you.

However, you must wait until your priority date is current before USCIS will adjudicate your adjustment application and you must be careful not to work without authorization or travel before securing advance parole.

When can I apply for my conditional green card or EAD/AP?

In 2015, in an effort to reduce or eliminate unused visa numbers at the end of a fiscal year, the Department of State created “Chart B” as part of their monthly visa bulletin. While Chart A governs when an applicant is eligible to receive his/her green card based on a family or employment- based petition, Chart B determines when an applicant is eligible to apply for a green card. The difference between the dates in Chart A and Chart B range from a matter of a couple of weeks to a couple of years.

Because the National Visa Center and the Consulates have always allowed applicants to use Chart B, investors who are consular processing are eligible to start the process for their immigrant visa as soon as their priority date is current on Chart B. However, they will not be scheduled for an interview or issued an immigrant visa until their priority date is current under Chart A.

Applicants who are eligible and want to file an adjustment application in the U.S. have an added step: Each month, United States Citizenship and Immigration Services will determine whether or not they will allow applicants to use Chart A or Chart B to file adjustment applications. In the past 4 years, USCIS has allowed EB-5 investors to use chart B for about half a year  – with USCIS allowing adjustment filings under Chart B for one or more months in 2015, 2018, and 2019. So if your priority date is current on Chart B AND USCIS is allowing applicants to use Chart B that month, then you could file your adjustment application, along with work authorization and travel permit, before your priority date on Chart A is current.

Is there any benefit in applying for my DS260 or Consular Processing as soon as my priority date becomes current on Chart B?

One benefit is that if you have already completed all the forms and provided necessary documentation once your Chart B priority date is current, then you may be scheduled for an interview faster when your Chart A priority date is current.

One minor drawback is that if the Chart A priority date does not become current for months after you’ve submitted all the documents, you may be required to get updated police certificates once your Chart A priority date does become current and you are scheduled for an interview.

Is there any benefit in applying for my adjustment of status as soon as my priority date becomes current on Chart B AND USCIS is using Chart B that month?

Yes. If your priority date is current on chart B and USCIS is using Chart B that month, and you meet other eligibility requirements, I would recommend applying for your adjustment of status to conditional resident. Along with the adjustment application, you would be able to file for work authorization and travel permit and will be able to continue renewing those applications until you become a conditional permanent resident.

Once the work authorization and travel permit are approved, you can work in the U.S. and travel internationally without maintaining an underlying non-immigrant visa status. Note: Before you travel or work on the EAD/AP, it’s important to seek an immigration attorney’s advice to determine if this is the right option for you.

Will filing a DS260 or Adjustment Application under Chart B protect my aging-out child?

Currently, USCIS and Department of State have determined that Chart B priority dates cannot be used to fulfill the requirements under the Child Status Protection Act to protect against children aging-out.

WHEN WILL USCIS USE CHART B AGAIN? CAN YOU GUARANTEE THAT USCIS WILL ALLOW EB-5 INVESTORS TO USE CHART B IN THE NEXT YEAR OR IN THE NEXT FEW YEARS?

Based on historical data, when USCIS has allowed applicants to use Chart B, it is at the start of the fiscal year. So I would expect the earliest that an EB-5 investor would be allowed to use Chart B will be October 2019. However, I cannot guarantee when Chart B will be available next.

Now that there is a Visa Backlog for India EB-5, should I file an EB-5 petition?

As I tell my clients, I am focused on the immigration part of their EB-5 process but I know that each person has a variety of other factors that they need to balance to determine if EB-5 is the right option for them.

As an immigration attorney looking at only immigration aspects, I would still recommend EB-5 as an option for the following reasons:

  • If you are in the U.S. and able to apply for your adjustment application along with work authorization and travel permit, you could potentially eliminate the need to find a petitioning employer or be reliant on winning an H-1B lottery or on a single petitioning employer.
  • EB-5 and EB-1s are still expected to have the shortest wait time for Indian-born applicants. As more and more Indian investors apply through the EB-5 program to seek relief from multi-decade waits in other employment-based categories, the EB-5 wait time will likely increase. Therefore, unless demand for EB-5 India decreases, the delay is likely to get worse as time goes on.