Priority Dates and Retrogression in EB-5: Impact and Projections for India and China

The high volume of EB-5 visa applicants from countries like India and China has led to long waiting times due to annual visa restrictions and retrogressions in priority dates established by the U.S. Department of State’s Visa Bulletin. We explain how priority dates work, the factors influencing retrogression, and the best alternatives for affected applicants.

The EB-5 Program has been one of the primary immigration options for foreign investors seeking permanent residency in the United States.

However, the high demand, especially from countries like India and China, has resulted in long waiting times due to the “priority date” system and retrogression in the Visa Bulletin. In this article, we explore how priority dates work, the factors influencing retrogression, and strategies that can help affected investors.

How Do Priority Dates Work in EB-5?

EB-5 visas are subject to an annual cap of approximately 10,000 visas for all countries, with a maximum of 7% per country. If a country exceeds this limit, its applicants enter a waitlist determined by the priority date, which is the day the I-526E petition was filed with USCIS.

In high-demand countries like China and India, available visas are often exhausted quickly, leading to a backlog of pending applications. This means that investors must wait until their priority date becomes “current” in the U.S. Department of State’s Visa Bulletin to proceed with their application.

Factors Influencing Visa Bulletin Retrogression

Priority date retrogression occurs when visa demand exceeds the available supply. Key factors include:

• High demand for EB-5 applications: India and China have historically had the highest number of applicants, leading to long waiting times.
• Annual country limits: Although there is a 7% per-country cap, unused visas can be redistributed to higher-demand countries, affecting date movement.
• USCIS and NVC processing speeds: If USCIS processes applications faster than expected, visa demand increases, which can cause retrogression.
• Impact of Immigration Reforms: Legislative changes, such as the EB-5 Reform and Integrity Act of 2022, have influenced visa allocation and processing speeds.

Strategies for Affected Investors

For investors from India and China facing long wait times, several strategies can help optimize the process:

• Explore concurrent filing: If the investor is already in the U.S. on another visa, they may file the I-526E along with the I-485 for adjustment of status while waiting for visa availability.
• Consider the Rural EB-5 Program: Recent legislation reserves a percentage of visas for projects in rural areas, potentially accelerating the process.
• Monitor the Visa Bulletin regularly: Keeping up with monthly updates is crucial to anticipate changes and prepare the necessary documentation.
• Evaluate other immigration options: Some investors may find alternatives like the EB-1C visa for executives and managers to be faster, depending on their business profile.
• Select an EB-5 project with a lower risk of delay: Some projects have more efficient processing times, which can help reduce uncertainty.

When Does a Priority Date Become Unavailable?

A priority date becomes “unavailable” when it retrogresses in the Visa Bulletin, indicating that no visas are available for that category and country at that time. This can happen due to:

• An unexpected increase in processed applications.
• An adjustment in the number of available visas due to immigration policy changes.
• A redistribution of visas to other priority categories within the EB-5 program.

Differences Between “Current” and “Not Current” in the Visa Bulletin

• Current (C): Indicates no retrogression, and visas are available for all applicants with an approved petition.
• Not Current: Indicates that the priority date has retrogressed, and applicants must wait until it becomes available again before proceeding to the next phase of the immigration process.

Historical Examples of EB-5 Retrogression

Over the years, there have been significant fluctuations in priority dates for India and China:

• China (2015-2022): Since 2015, Chinese investors have faced wait times exceeding a decade, leading many to seek alternative options.
• India (2019-2021): In 2019, India experienced a significant retrogression for the first time, raising concerns about the program’s viability for investors from the country.
• Post-EB-5 Reform (2022-2023): Following the program’s reactivation in 2022, Chinese and Indian investors have seen adjustments in wait times due to visa reallocation.

Frequently Asked Questions About Retrogression and Priority Dates

1. How long do I have to wait if my priority date retrogresses?
   The waiting time varies based on demand, visa redistribution, and USCIS processing times. It is advisable to monitor the Visa Bulletin monthly.
2. Can I change my EB-5 project if my application is on hold?
   In some cases, investors may transfer their petition to another project, but this should be done with legal guidance to avoid additional delays.
3. Can reserved visas for rural areas speed up my case?
   Yes, visas reserved for rural area projects face less competition, which could expedite the approval process.

Given these insights, it is clear that for Indian and Chinese investors in the EB-5 Program, understanding priority dates and retrogression in the Visa Bulletin is essential for planning their path to U.S. residency.

While retrogression can create uncertainty, there are strategies to mitigate its impact and explore alternative options. Staying informed and seeking support from specialized advisors can make a significant difference in securing a Green Card through the EB-5 program.