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EB-5 Visa Allocation Questions and Answers

Whether you're just beginning your immigration journey or searching for answers along the way, our FAQs will help you every step of the way.



    General EB-5

    1. What classes of EB-5 visas are available?

    Since the EB-5 Reform and Integrity Act was enacted on March 15, 2022, EB-5 visas have been divided among four categories: Unreserved, Rural Set Aside, High Unemployment Set Aside, and Infrastructure Set Aside. The set aside visas are also called reserved visas. Two-digit visa classification symbols match a category and the applicant’s filing date and regional center affiliation.  Table 1 summarizes the available EB-5 categories and classifications, as defined in the Federal Register. Figure 1 shows how the classes are organized in the Annual Report of the Visa Office.

     

    Cross References:

    Source References:

    (Updated as of August 22, 2024)

    2. How many visas are available to EB-5?

    In a typical year, EB-5 has approximately 10,000 visas. Since 2022, the typical EB-5 allocation is divided into approximately 6,800 Unreserved visas, 2,000 Rural set aside visas, 1,000 High Unemployment set aside visas, and 200 Infrastructure set aside visas. The annual allocation is not a fixed number, however.

    Actual annual EB-5 visa availability is a variable number that is calculated from percentages. It can sometimes be significantly increased by visa rollover and visa carryover.  Rollover from unused family-based visas increases EB-5 visa numbers across the board, while carryover within EB-5 can increase visa numbers in individual classes.

    Table 1 shows how base EB-5 visa availability is calculated. Table 2 shows actual EB-5 visa availability in recent years, with significantly elevated numbers due to processing constraints. Note that the number of visas actually issued in a year may be smaller than the number available, due to low demand or processing constraints.

    Cross Reference:

    Source References:

    (Updated as of August 22, 2024)

    3. What are rollover and carryover visas?

    In a typical year, EB-5 has approximately 10,000 visas. In any given year, these numbers may be increased by rollover and/or carryover visas. Rollover and carryover occur when visas not issued one year get added to a following year’s limit.

    Rollover from unused family-based visas increases EB-5 visa numbers across the board, while carryover of unused set-aside visas within EB-5 can increase visa numbers in individual classes.

    What are rollover and carryover visas?

    • Rollover refers to the movement of unused visas between the Family-Based (FB) and Employment-Based (EB) categories. FB visas that do not get issued in one year add or “roll over” to the EB limit the next year. As the total EB limit increases for a year, EB-5 numbers also increase based on EB-5’s percent share of total EB visas.  Each EB-5 subcategory (Unreserved and Set Aside) benefits from roll-overs according to its defined percent share of total new EB-5 visas.
    • Carryover refers to the movement of any reserved/set-aside EB-5 visas that go unused in a given year. Carryover visas were introduced to EB-5 in 2022. The following carryover rules/policy apply:
      • Any unused New Issue EB-5 Reserved visas carry over to the same Reserved category in the following year.
      • Any unused Carryover EB-5 Reserved visas carry over to the Unreserved category in the following year.
      • When issuing Reserved visas, Department of State will first distribute carryover numbers from the previous year, before using numbers newly-issued that year. This policy has the result of maximizing the number of new issue Reserved visas that can carry over in the same category for the following year. The policy reduces the number of reserved visas that will be released to the Unreserved category after going unused for two years.
      • When visas in the Unreserved category are not used in a year, they do not carry over in EB-5 for another year. Instead, any unused Unreserved visas “fall up” to be used by EB-1 and are lost forever to EB-5.

    Cross Reference:

    Source References:

    • Visa availability and carryover rules for EB-5 visas are laid out in sections A and B of INA 203(b)(5) under 8 U.S. Code § 1153 – Allocation of immigrant visas
    • The basis for rollover of visas from family-based to employment-based is found in 8 USC 1151: Worldwide level of immigration As USCIS explains in “Employment-Based Adjustment of Status FAQs”: “Under INA 201(d)(2), the unused family-sponsored visa numbers from the previous fiscal year are added to the overall employment-based limit. Under INA 203(b), that overall employment-based limit is then divided between the 5 employment-based preference categories based on the fixed percentages as described above.” (accessed 7/10/2024)
    • “Congress has established statutory provisions that allow for the flow of visas “not required” in certain employment-based categories to be made available to applicants in other employment-based categories. These are commonly referred to as the “fall up/fall down” provisions. Under INA 203(b), visas not required in EB-4 and unreserved visas not required in EB-5 are made available in EB-1. …Please note that with the enactment of the EB-5 Reform and Integrity Act of 2022 on March 15, 2022, Congress established special rules for the carryover of certain unused EB-5 visas from one fiscal year to the next. As a result, not all EB-5 visas that are “not required” in that category can be made available in EB-1.” Quoted from “Employment-Based Adjustment of Status FAQs” USCIS (accessed 7/10/2024)
    • EB and EB-5 visa limits from previous years are available from Department of State and the September Visa Bulletin each year.

    (Updated as of August 22, 2024)

    4. How often do rollover and carryover visas increase EB-5 visa numbers?

    Significant visa rollover and carryover are not typical in EB-5, but occur occasionally under extraordinary circumstances.

    Rollover from unused family-based visas to the employment-based limit is predictably minor under normal conditions, because family-based applicants consistently have sufficient demand to absorb FB visas. Large rollovers of unused FB visas can happen when disaster strikes and prevents visas from being demanded or issued on a large scale. This happened when the COVID-19 Pandemic disrupted visa processing around the world from 2020 into 2022. The likelihood of very large future visa rollovers from FB to benefit EB-5 depends on the likelihood of future wide-reaching events that decimate family-based visa processing or demand.

    Carryover of unused EB-5 reserved/set aside visas has been extremely high in 2023 to 2025, because demand for these new categories has been slow to reach the visa stage. Although thousands of investors filed I-526E for high unemployment and rural investments between 2022 and 2024, only a few hundred had reached the visa stage by 2024 thanks to processing delays.

    An EB-5 set-aside category will cease to benefit from carryover visas in the first year after such a year in which applicants have absorbed all visas in that category. Based on past demand trends and the slow pace of USCIS processing, it appears that high unemployment set aside could cease to have extra visas from carryover in 2026 or 2027, and rural set aside could cease to have extra visas from carryover in 2027 or 2028.

    Cross Reference:

    • What are rollover and carryover visas?
    • How many visas are available to EB-5?
    • What is the backlog situation for EB-5 Reserved Set Aside and Unreserved visas?

    (Updated as of August 22, 2024)

    5. Who can qualify for an EB-5 Unreserved Visa?

    The 5th Unreserved category comprises all EB-5 visas not specially reserved in the Rural, High Unemployment, and Infrastructure Set Aside categories that were created by the EB-5 Reform and Integrity Act (RIA) enacted on March 15, 2022.

    All pre-RIA applicants (people with I-526 petitions filed before March 15, 2022) now automatically and only qualify for a 5th Unreserved visa.

    According to current policy, DOS will not allocate a 5th Set-Aside visa to an EB-5 applicant with a priority date before March 15, 2022, even if that applicant invested in a Targeted Employment Area that matches a set-aside visa category definition. The visa classification symbols for pre-RIA applicants (C5, T5, I5, R5) correspond to regional center and TEA set-aside categories that existed prior to March 2022. Since the RIA law change, the previous set-aside allocations no longer exist, and C5, T5, I5, R5 have been made subsets of the “5th Unreserved” visa category in visa office reporting.

    A post-RIA applicant (with I-526 or I-526E petition filed after March 15, 2022) has a chance to qualify for a 5th Unreserved visa if the applicant’s I-525 or I-526E Approval Notice lists Unreserved (RU or NU) as an approved visa class. If the Approval Notice lists more than one approved class including Unreserved, the applicant must notify Department of State to specifically request an Unreserved visa if he wishes to be issued an Unreserved visa.

    Cross Reference:

    Source References:

    • The DOS rule that established post-RIA EB-5 visa classifications explained that “The EB-5 Reform and Integrity Act repealed the former Regional Center Program under section 610 of Public Law 102-395 and authorized a new Regional Center Program,” and defined classification symbols for new set-aside categories available, by definition, to “Petitions filed On or After March 15, 2022.” See “Visas: Nonimmigrant Visas; Immigrant Visas” US Department of State, dated July 14, 2023.
    • In June 2022, DOS addressed the question: “Have USCIS and DOS worked out a process to identify pending or approved petitions that may qualify for reclassification (or petition portability) under the RIA’s new reserved visa set-aside rules?” DOS response: “Pending petitions filed prior to the enactment of the EB-5 RIA will be adjudicated under the law in effect at the time of filing. Petitions approved prior to the enactment of the EB-5 RIA will retain the classification set by USCIS at the time of approval.” See pg. 5 of “Department of State/AILA Liaison Committee Meeting June 9, 2022” US Department of State, updated June 21, 2022.
      • In April 2024, DOS addressed the questions “Can DOS describe the process by which applicants with EB-5 immigrant visa petitions approved with dual Reserved and Unreserved status will be asked to notify the National Visa Center under which processing status they wish to proceed?” and “How will DOS apply a Form I-526E approval notice that lists both the Unreserved (RU-1) and Reserved (RR-1) visa categories when processing the case and when determining demand levels?” DOS responded: “Beginning March 21, 2024, IV applicants who USCIS has approved for more than one EB-5 visa classification, reserved or unreserved, will be contacted by NVC and required to select only one of the approved visa classes indicated on their I-797C approval notice and submit their choice using NVC’s online public inquiry form. EB-5 visa applicants will not be scheduled for an interview until they have made a selection. NVC will not select an EB-5 visa class for an applicant. Applicants will be contacted to identify their choice at the Welcome Letter stage. Applicants who have an approved petition and do not receive a notice from NVC should contact us via the online public inquiry form. … EB-5 Applicants with Form I-526E approval notices will be required to select a visa category as indicated in the response directly above. This will allow us to establish demand levels and ensure demand levels are not artificially inflated.” See pg. 11 of “Department of State/AILA Liaison Committee Meeting March 20, 2024” US Department of State, updated April 19, 2024.
    • Litigation has attempted to find a path for pre-RIA applicants to access set-aside visas that match the TEA definition for their pre-RIA investment. For an example, see the July 2024 opinion dismissing the appeal: “No. 23-5175: DELAWARE VALLEY REGIONAL CENTER, LLC, ET AL., APPELLANTS v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., APPELLEES” US Court of Appeals, dated July 9, 2024. The judge in this case agreed with the government that the RIA-defined set-aside visas could only be issued to applicants who filed a post-RIA petition. “…Under governing regulations, USCIS routinely assesses qualifications for immigration benefits at the time of application. … Consistent with what is plainly contemplated by the RIA, USCIS stated only that it requires regional centers and visa applicants to submit forms that demonstrate their eligibility for a new benefit. …. Nothing in the challenged statements precludes a previously approved EB-5 petitioner from filing a new petition for a reserved visa, based on an infrastructure investment that complied with pre-RIA requirements.” In practice, investment amount is the major factor precluding pre-RIA investors from simply filing a new petition for a past investment, since the post-RIA investment threshold is higher. To solve this issue, the DVRC plaintiffs argued that “$500,000 and $800,000 investments are essentially ‘of identical size’ because the increased threshold in the RIA is simply meant to account for inflation.” The DVRC opinion does not opine on the investment amount issue, but points the way for plaintiffs to test it by filing new petitions with USCIS based on pre-RIA investments.

    (Updated as of August 22, 2024)

    6. Could a China-born EB-5 applicant facing retrogression in the High Unemployment category receive an Unreserved visa instead?

    A China-born EB-5 applicant with a post-March 2022 priority date is free to compete for either a High Unemployment Set Aside visa or an Unreserved visa. Provided that his or her I-526 or I-526E approval notice lists both High Unemployment and Unreserved as approved visa classes, the applicant may request to be issued a visa in either class.

    If the China-born applicant chooses to compete for a High Unemployment visa, then he will be in a queue behind all other China-born High Unemployment applicants with earlier priority dates. The supply of High Unemployment visas potentially available to this queue could be limited to as little as 7% of HUA visas, if Rest-of-World applicants have absorbed most of the remaining High Unemployment visas.

    If the China-born applicant chooses to compete for an Unreserved visa, then he will be in a queue behind all other China-born Unreserved applicants with earlier priority dates, including behind the pre-2022 China backlog. The supply of Unreserved visas potentially available to this queue is constrained by Rest-of-World applicants, including India-born applicants with earlier priority dates and Unreserved applicants from uncapped countries of all priority dates. Historically, the China-born EB-5 applicant queue benefited from many more than 7% of available visas, due low Rest-of-World demand and a country cap on more recent India-born applicants. Unreserved visa availability may be constrained in the near future, however, as more pre-RIA Rest-of-World applicants reach the visa stage and some post-RIA applicants may choose Unreserved instead of Set Aside visas.

    The choice is this: is it better to be one of a relatively large number of applicants for a larger visa category (Unreserved) or one of a relatively smaller number of applicants for a smaller visa category (High Unemployment). The China-born applicant wants to choose the category with the smallest difference between visa demand and visa availability for Chinese. To make this calculation, applicants can consult the latest available information for Unreserved demand (including the number of China-born and Rest of World applicants in the NVC backlog) and High unemployment demand (including number of I-526 and I-526E filings from China-born and Rest-of-World applicants).

    Cross Reference:

    (Updated as of August 22, 2024)

    7. Could an India-born EB-5 applicant facing retrogression in the High Unemployment category receive an Unreserved visa instead?

    An India-born EB-5 applicant with a post-March 2022 priority date is free to compete for either a High Unemployment Set Aside visa or an Unreserved visa. Provided that his or her I-526 or I-526E approval notice lists both High Unemployment and Unreserved as approved visa classes, the applicant may request to be issued a visa in either class.

    If the India-born applicant chooses to compete for a High Unemployment visa, then he will be in a queue behind all other India-born High Unemployment applicants with earlier priority dates. The supply of High Unemployment visas potentially available to this queue could be limited to as little as 7% of HUA visas, if Rest-of-World applicants have absorbed most of the remaining High Unemployment visas.

    If the India-born applicant chooses to compete for an Unreserved visa, then he will be in a queue behind all other India-born Unreserved applicants with earlier priority dates, including behind the pre-2022 India backlog. The supply of Unreserved visas available to the India-born queue will be capped at 7% for the foreseeable future, due to the volume of still-in-process Rest-of-World applicants and China-born applicants with earlier priority dates.

    The India-born applicant should choose the category with the smallest difference between visa demand and visa availability for Indians. It’s relatively simple to calculate the difference between supply and demand on the Unreserved side: the size of the pending pre-2022 India backlog is known and Unreserved visa supply to Indians is predictably about 7%. The High Unemployment Area calculation is a moving target, however, since more HUA applicants are being added to the pipeline daily, and HUA visa supply to India will initially be greater than 7% of HUA visas, depending on the pace and volume of petition approvals.

    To make estimates, applicants can consult the latest available information for Unreserved demand (including the number of India-born applicants in the NVC backlog) and High unemployment demand (including number of I-526 and I-526E filings from India-born, China-born, and Rest-of-World applicants).

    Cross Reference:

    (Updated as of August 22, 2024)

    8. Who can qualify for an EB-5 Set Aside Visa?

    Rural, high unemployment, and infrastructure set aside categories were created by the EB-5 Reform and Integrity Act of 2022 (RIA). These categories have been defined as exclusively available to applicants who filed I-526 or I-526E petitions on or after the RIA was enacted on March 15, 2022.

    If USCIS approves the I-526 or I-526E petition, USCIS will issue a Notice of Action that confirms the specific visa category/categories for which the investor and family can qualify. The Notice of Action states, “If you are eligible for more than one visa classification, you will be required to identify which visa classification you will seek to obtain before proceeding with immigrant visa processing.”

    Cross Reference:

    Source References:

    • In June 2022, Department of State addressed the question, “What process will DOS/NVC and USCIS adopt moving forward on approved I-526 petitions to clearly designate I-526 petitions that fall into one of the set-aside categories so that DOS can process them in accordance with the reserved visa set-asides for rural, high unemployment, and infrastructure categories?” The DOS response was, “DOS cannot speak to the petition approval process and designation by USCIS, but DOS will process the application per the approved EB-5 visa category.” See pg. 5 of “Department of State/AILA Liaison Committee Meeting June 9, 2022” US Department of State, updated June 21, 2022.
    • In March/April 2024, Department of State addressed the question “How will DOS apply a Form I-526E approval notice that lists both the Unreserved (RU-1) and Reserved (RR-1) visa categories when processing the case and when determining demand levels?” DOS responded: “Beginning March 21, 2024, IV applicants who USCIS has approved for more than one EB-5 visa classification, reserved or unreserved, will be contacted by NVC and required to select only one of the approved visa classes indicated on their I-797C approval notice and submit their choice using NVC’s online public inquiry form. EB-5 visa applicants will not be scheduled for an interview until they have made a selection. NVC will not select an EB-5 visa class for an applicant. Applicants will be contacted to identify their choice at the Welcome Letter stage. Applicants who have an approved petition and do not receive a notice from NVC should contact us via the online public inquiry form. … EB-5 Applicants with Form I-526E approval notices will be required to select a visa category as indicated in the response directly above. This will allow us to establish demand levels and ensure demand levels are not artificially inflated.” See pg. 11 of “Department of State/AILA Liaison Committee Meeting March 20, 2024” US Department of State, updated April 19, 2024.

    (Updated as of August 22, 2024)

    9. How and when does an EB-5 investor choose an EB-5 visa class?

    An investor’s road to a set-aside EB-5 visa begins with making an investment in a project either that is located in a qualified rural or high unemployment area or that qualifies as an infrastructure project.

    USCIS will judge whether a regional center project qualifies as a rural, high unemployment, or infrastructure when USCIS adjudicates the Form I-956F application for the project. Investors can consult the I-956F approval notice from USCIS to see the approved category. When the investor files I-526E, he will check one or more boxes to indicate the type of investment in the associated I-956F, whether rural, high unemployment, infrastructure, high employment, or other.

    The Unreserved visa class is the only class open to applicants who invested outside of a targeted employment area at the $1.05 million level. It may be approved as a backup option for investors who also qualify in a set-aside visa class.

    When USCIS approves the investor’s I-526E petition, USCIS will issue a Notice of Action that confirms the specific visa category/categories for which the investor and his family can qualify. The Notice of Action states, “If you are eligible for more than one visa classification, you will be required to identify which visa classification you will seek to obtain before proceeding with immigrant visa processing.”

    Consular processing applicants will then receive an Action Request from the National Visa Center that gives instructions for how to select a visa classification.

    Applicants approved for multiple classes may hold off on selecting one class until they become documentarily complete, but they must select a category prior to being scheduled for interview.

     

    Source References:

    • In April 2024, DOS addressed the questions “Can DOS describe the process by which applicants with EB-5 immigrant visa petitions approved with dual Reserved and Unreserved status will be asked to notify the National Visa Center under which processing status they wish to proceed?” and “How will DOS apply a Form I-526E approval notice that lists both the Unreserved (RU-1) and Reserved (RR-1) visa categories when processing the case and when determining demand levels?” DOS responded: “Beginning March 21, 2024, IV applicants who USCIS has approved for more than one EB-5 visa classification, reserved or unreserved, will be contacted by NVC and required to select only one of the approved visa classes indicated on their I-797C approval notice and submit their choice using NVC’s online public inquiry form. EB-5 visa applicants will not be scheduled for an interview until they have made a selection. NVC will not select an EB-5 visa class for an applicant. Applicants will be contacted to identify their choice at the Welcome Letter stage. Applicants who have an approved petition and do not receive a notice from NVC should contact us via the online public inquiry form. … EB-5 Applicants with Form I-526E approval notices will be required to select a visa category as indicated in the response directly above. This will allow us to establish demand levels and ensure demand levels are not artificially inflated.” See pg. 11 of “Department of State/AILA Liaison Committee Meeting March 20, 2024” US Department of State, updated April 19, 2024.
    • A presentation by Department of State Data Scientist Michael Hanley at the IIUSA conference in May 2024 includes a slide with this information: “Applicants selected for multiple categories: Will be asked in their Welcome Letter package to choose one category; May hold off on selecting (and/or change) their category until they become documentarily complete; Must select category prior to being scheduled for interview. Takeaway: If an applicant is uncertain, it is advantageous to wait to choose as NVC will accept and process documents even if a category has not been chosen.” See PDF pg. 12 of “EB-5 Visa Updates FYTD-2024 and FY-2025 Outlook” Michael Hanley, dated May 3, 2024.
    • IIUSA’s recap of the May 2024 presentation explains, “Dr. Hanley urges visa applicants to pay close attention to the monthly Visa Bulletin since there will be a warning in the notes section if there is a need to establish a Final Action Date for Set-Aside categories at least a few months before such a cut-off date is imposed. Additionally, according to Dr. Hanley, qualified applicants ‘may hold off on selecting (and/or changing) their category until they become documentarily complete.’” See “Insights from the State Department: Ten Key Takeaways on the Latest EB-5 Data and Visa Processing from the 2024 IIUSA EB-5 Industry Forum” IIUSA, dated June 6, 2024.
    • The USCIS Policy Manual Volume 6 Part G Chapter 2 section 5 explains Targeted Employment Area qualifications.

    (Updated as of August 22, 2024)

    10. Can Department of State choose a visa class for the EB-5 applicant?

    If an EB-5 applicant is approved by USCIS for multiple categories and does not choose one category, will Department of State use its discretion to allocate an available visa? If the EB-5 applicant chooses a set-aside category that is backlogged, will Department of State assign the applicant an unreserved visa if one is available?

    Department of State has said that the National Visa Center (NVC) “will not select an EB-5 visa class for an applicant.” Department of State can and will only issue EB-5 visas based on an approved class listed on the applicant’s I-526 or I-526E approval notice from USCIS. If the approval notice lists multiple visa classes, including set-aside and Unreserved, the applicant must select one of the approved classifications. The Department of State will then issue a visa based on the applicant’s selection. The applicant may delay making a selection or change her visa class selection at any time until she is documentarily complete. This may maximize the opportunity to respond to retrogression. Department of State does not offer to make the selection among possible classes on the applicant’s behalf.

    Cross Reference:

    Source Reference:

    • In March/April 2024, Department of State addressed the questions “How will DOS apply a Form I-526E approval notice that lists both the Unreserved (RU-1) and Reserved (RR-1) visa categories when processing the case and when determining demand levels?” DOS responded: “Beginning March 21, 2024, IV applicants who USCIS has approved for more than one EB-5 visa classification, reserved or unreserved, will be contacted by NVC and required to select only one of the approved visa classes indicated on their I-797C approval notice and submit their choice using NVC’s online public inquiry form. EB-5 visa applicants will not be scheduled for an interview until they have made a selection. NVC will not select an EB-5 visa class for an applicant. Applicants will be contacted to identify their choice at the Welcome Letter stage. Applicants who have an approved petition and do not receive a notice from NVC should contact us via the online public inquiry form.” See pg. 11 of “Department of State/AILA Liaison Committee Meeting March 20, 2024” US Department of State, updated April 19, 2024.

    (Updated as of August 22, 2024)

    11. What determines the order and priority for EB-5 visa allocation?

    The Department of State allocates visas according to a prospective immigrant’s preference category, country of chargeability, and priority date.

    As an EB-5 investor, my path to a visa is guided by when and where I made an investment. USCIS will approve me for one or more EB-5 visa classification options that correspond to my investment type (rural, high unemployment, infrastructure, or unreserved). Department of State will then issue a visa based on the classification that I selected and that USCIS approved. If there are too many applicants for visas in my selected class, Department of State will consider priority dates and country of origin to control the order of visa issuance.

    Cross Reference:

    Source Reference:

    • “When the demand is higher than the supply of visas for a given year in any given category or country, a visa queue (a waiting list or backlog) forms. To distribute the visas among all preference categories, DOS allocates the visas according to a prospective immigrant’s preference category, country of chargeability, and priority date. DOS uses the priority date to determine an immigrant’s place in the visa queue. … If you are a prospective immigrant, you can find your priority date on Form I-797, Notice of Action, for the petition filed on your behalf.” Quoted from “Visa Availability and Priority Dates” USCIS: Accessed 7/10/2024

    (Updated as of August 22, 2024)

    12. What is a priority date, and what difference does it make?

    The Department of State allocates visas according to a prospective immigrant’s preference category, country of chargeability, and priority date. If two visa applicants were born in the same country and seeking visas in the same category, the applicant with the oldest priority date will get a visa first.

    Generally, the priority date is the date when the immigrant petition is properly filed with USCIS. An EB-5 investor’s priority date is the that that USCIS accepts Form I-526 or I-526E for processing. The investor can find his or her priority date on the I-526 or I-526E approval notice from USCIS (Form I-797 Notice of Action).

    Department of State uses the priority date to determine an immigrant’s place in the visa queue. Generally, the earlier one’s priority date, the better. However, category and country are also factors. Applicant B with a 2024 priority date could be allocated a visa before an Applicant A with a 2021 priority date, if it happens that Applicant B is applying in a category with a greater number of available visas or is from a country less affected by country-specific oversubscription than Applicant A.

    When an EB-5 investor files I-526 or I-526E, that action marks the date that will become his or her priority date. However, it’s important to note that the action of filing I-526 or I-526E does not, itself, lock in access to a visa. Department of State does not reserve or pre-allocate visas to people starting the immigration process. A visa number is not actually allocated to an applicant until the point of visa interview or status adjustment approval.

    Source References:

    • “For employment-based immigrants, the priority date depends on the following: If You are a fifth preference investor Then your priority date is the date: USCIS accepts Form I-526, Immigrant Petition by Alien Entrepreneur, for processing.” Quoted from “Visa Availability and Priority Dates” USCIS: Accessed 7/10/2024
    • “When the demand is higher than the supply of visas for a given year in any given category or country, a visa queue (a waiting list or backlog) forms. To distribute the visas among all preference categories, DOS allocates the visas according to a prospective immigrant’s preference category, country of chargeability, and priority date. DOS uses the priority date to determine an immigrant’s place in the visa queue. … If you are a prospective immigrant, you can find your priority date on Form I-797, Notice of Action, for the petition filed on your behalf.” Quoted from “Visa Availability and Priority Dates” USCIS: Accessed 7/10/2024
    • “Q. When is a visa number subtracted from the annual limit? A. A visa number is subtracted from the annual limit when DOS issues an immigrant visa to a noncitizen through consular processing or when a noncitizen acquires lawful permanent resident status upon approval of their application for adjustment of status, either with USCIS or EOIR of the U.S. Department of Justice. A visa number is not subtracted from the annual limit based on any other preliminary step in the adjudication process (that is, not at the time of filing, not at the time of interview scheduling, not at the time of transferring to a USCIS field office, not with the issuance of a Request for Evidence, not with the approval of the underlying immigrant visa petition, not with the granting of a transfer of underlying basis request, etc.). There is also no reservation or pre-allocation of a visa number to an applicant at any of these procedural steps. If USCIS has approved an adjustment of status application for a principal applicant, but the applications of dependent family members remain pending, immigrant visa numbers have not yet been subtracted from the annual limit for the dependent family members. (Updated 03/22/2023)” Quoted from “Employment-Based Adjustment of Status FAQs” USCIS, accessed 7/10/2024.

    (Updated as of August 22, 2024)

    13. What are country caps and how do they affect visa allocation?

    Country caps are a tool designed to prevent high-demand countries from monopolizing all available visas.

    If visa demand from one country threatens to absorb more than 7% of total family-based and employment-based visas, then that country is oversubscribed. Applicants from an oversubscribed country are initially limited to 7% of annual visas within the specific category for which they qualify, to help prevent visa issuance across categories from exceeding 7%. The visa allocation to an oversubscribed country within a specific category can exceed 7%, when necessary to avoid category visas being left unused.

    What is a country cap? The country cap places an annual per-country limit of 7% on employment and family-based visa issuances. This cap operates on a systemwide basis, not simply controlling or reacting to high demand in any one visa category.

    Who is affected by country caps? The Department of State applies the country cap when a country qualifies as “oversubscribed,” i.e. when applicants from that country threaten to exceed 7% of the total employment-based and family-based visas available. The list of countries that qualify as oversubscribed, and thus subject to the country cap, can be found in any month’s visa bulletin Section A.3, which concludes, “The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa issuances will exceed the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: _________ .” Every year from 2005 to 2024, monthly Visa Bulletins have completed that sentence by listing at least the following four countries as “oversubscribed chargeability areas”: China-mainland, India, Mexico, and Philippines. In most years, only those countries were listed. A few other countries have been temporarily included in the list (see source references below for details), but generally, only four countries have ever come remotely close to exceeding demand for 7% of total EB and FB visas. A number of other countries have high demand for individual categories such as EB-4 or EB-5, but high demand in one category does not trigger the country cap, only high demand across the immigration system.

    How does the cap work? For a country that counts as oversubscribed, Department of State prorates visa issuance within EB and FB categories with the goal of ensuring even distribution across categories. However, 7% is not a strict cap within each category, because Department of State does not want category visas to go unused. When one category has more visas than applicants, then country cap pro-rating is not applied in that category. When a category has visas left unused after limiting oversubscribed countries to 7%, then such otherwise unused visas can be allocated to oversubscribed countries above 7%.

    Cross Reference:

    Source References:

    • “Per-country limit: The annual per-country limitation of 7% is a cap, which visa issuances to any single country may not exceed. Applicants compete for visas primarily on a worldwide basis. The country limitation serves to avoid monopolization of virtually all the annual limitation by applicants from only a few countries.” Quoted from “The Operation of the Immigrant Numerical Control System” US Department of State, accessed 7/10/2024.
    • “INA 202(a)(2), 8 U.S.C. 1152(a)(2), imposes a ‘per country’ limit of seven (7) percent of the total number of available family-sponsored and employment-based preference immigrant visas each fiscal year to nationals of individual foreign states. If the Department determines that preference visa issuances to nationals of a particular country will exceed the per-country limit, that country is identified in the Visa Bulletin as ‘oversubscribed’ and INA 202(e), 8 U.S.C. 1152(e), requires that visas in each preference category must be pro-rated to ensure distribution across all preference categories.” See pg. 8 of “Employment-Based Preference Immigrant Visa Final Action Dates and Dates for Filing for El Salvador, Guatemala, and Honduras” The Federal Register, dated March 28, 2023.
    • “Nothing in this subsection shall be construed as limiting the number of visas that may be issued to natives of a foreign state or dependent area under section 203(a) or 203(b) if there is insufficient demand for visas for such natives under section 203(b) or 203(a).” (Quoted from INA 202(e), 8 U.S.C. 1152(e) “Special Rules for Countries at Ceiling”)
    • “(3) Exception if additional visas available. – If because of the application of paragraph (2) [“Per country levels for family-sponsored and employment-based immigrants”] with respect to one or more foreign states or dependent areas, the total number of visas available under both subsections (a) and (b) of section 203 for a calendar quarter exceeds the number of qualified immigrants who otherwise may be issued such a visa, paragraph (2) shall not apply to visas made available to such states or areas during the remainder of such calendar quarter.” (Quoted from INA 202(a)(2), 8 U.S.C. 1152(a)(3))
    • “Q. What is the “per-country limit”? Does it apply to each employment-based preference category separately? A. Under INA 202(a)(2), “the total number of immigrant visas made available to natives of any single foreign state…under subsections (a) and (b) of section 203 in any fiscal year may not exceed seven percent…of the total number of such visas made available under such subsections in that fiscal year.” Accordingly, there is a 7% annual per-country limit that applies to all the family-sponsored and employment-based preference categories combined. Under the statute, the 7% per-country limit does not apply to each individual category and does not apply to the employment-based or family-sponsored visas on their own. For example, in FY 2023, the employment-based limit was 197,091 visas and the family-sponsored limit was 226,000 visas, added together for a total of 423,091 visas. Natives of a single foreign state could receive up to 7% of that total, or 29,616 visas in the employment-based and family-sponsored categories combined. If, in this example, DOS were to allocate 5,000 family-sponsored visas to natives of a single foreign state, then 24,616 employment-based visas would still be available to be allocated to natives of that foreign state, divided according to the usual statutory formula between the various employment-based categories.) Currently, the countries that exceed the 7% per-country limit are China, India, Mexico, and the Philippines. INA 202(a)(5)(A) provides limited statutory exceptions to the per-country limit which can result in noncitizens from a single foreign state receiving more than 7% of the combined family-sponsored and employment-based limits (see details below).” Quoted from “Employment-Based Adjustment of Status FAQs” USCIS, accessed 7/10/2024.
    • “Q. When does the special exception to the per-country levels for the employment-based categories apply? A. Under INA 202(a)(5)(A), if the total number of visas available in one of the employment-based categories for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available in that category will be issued without regard to the per-country numerical limitation. This can happen as early as the first day of a fiscal year, depending on the relevant data. USCIS understands that there are some misconceptions about this topic, and states again that this special exception to the per-country levels applies (if the statutory criteria are met) in any quarter of a fiscal year, not just in the fourth quarter. For example, in the October 2022 Visa Bulletin, EB-1 was “Current” for all countries of chargeability, indicating that the exception applies (based on reasonable estimates) and that visas in that category are being issued without regard to the per-country numerical limitation, benefitting applicants chargeable to India and China. Please note that if DOS has established a worldwide Final Action Date for an immigrant visa category, DOS has estimated that the total number of visas available in that category is less than the number of qualified immigrants who may otherwise use such visa numbers. For example, in the third and fourth quarters of FY 2023, DOS established a worldwide Final Action Date for EB-3. As a result, during those two quarters, the exception to the per-country limits did not apply in EB-3. (Updated 04/03/2024)” Quoted from “Employment-Based Adjustment of Status FAQs” USCIS, accessed 7/10/2024.
    • All Visa Bulletins since FY2002 are available at “The Visa Bulletin” US Department of State. Each month’s Visa Bulletin includes this sentence: “The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: ____.” Consulting the October visa bulletin in each year shows the following countries identified as oversubscribed: 2002-2004 MEXICO, INDIA and PHILIPPINES; 2005-2015 CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES; 2016-2017 and 2022 CHINA-mainland born, EL SALVADOR, GUATEMALA, HONDURAS, INDIA, MEXICO, and PHILIPPINES; 2018-2021 CHINA-mainland born, EL SALVADOR, GUATEMALA, HONDURAS, INDIA, MEXICO, PHILIPPINES, and VIETNAM; 2023-2024 CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.
    • “The Department seeks to clarify that the INA permits prorated allocation of available visas within an employment-based preference category to nationals from an individual country only when family-sponsored and employment-based preference visa demand from that country will exceed its per-country limit. … the Department’s current interpretation of the statutory prerequisite for when a country can be deemed oversubscribed and allocation of preference visas can be pro-rated: that the INA provision on pro-rating is based on a country’s demand for more than seven percent of all preference visas, not one subcategory.” See pg. 10 of “Employment-Based Preference Immigrant Visa Final Action Dates and Dates for Filing for El Salvador, Guatemala, and Honduras” The Federal Register, dated March 28, 2023.

    (Updated as of August 22, 2024)

    14. How do country caps apply in EB-5 and in set-aside categories?

    See the post “What are country caps and how do they affect visa issuance?” for the theory of how per-country limits affect visa issuance within a specific category. If visa demand from one country threatens to absorb more than 7% of total family-based and employment-based visas, then that country is oversubscribed. Applicants from an oversubscribed country are initially limited to 7% of annual visas within the specific category for which they qualify, to help prevent visa issuance across categories from exceeding 7%. The visa allocation to an oversubscribed country within a specific category can exceed 7%, when necessary to avoid visas being left unused.

    Country Cap Application Examples in EB-5

    Example of an oversubscribed country receiving more than 7% of available EB-5 visas: China has qualified as “oversubscribed” on a systemwide basis and subject to country caps every year since 2005. However, China was not limited by the country cap in EB-5 from 2005 to 2014, because EB-5 had fewer total applicants than visas in those years. In 2015, EB-5 began to experience excess visa applications. In response, Department of State used the country cap to control the demand from China. Nevertheless, Department of State has issued more than 7% of EB-5 visas to China-born applicants every year from 2015 to 2024, because demand from other unlimited countries has not been sufficient to absorb the remaining 93% of EB-5 visas. Since 2005, Department of State has regularly issued more than 7% of EB-5 visas to China-born applicants, because the EB-5 visas above that cap would have gone unused if not issued to cap-limited countries.

    Example of an oversubscribed country receiving 7% of EB-5 visas: In FY2022, India qualified as “oversubscribed” on a systemwide basis, and India-born applicants in the EB-5 Unreserved category received 7% of total EB-5 visas. Indians did not receive more than 7% of total EB-5 visas, because the “otherwise unused visas” available above country cap limits were all issued to the oldest priority dates and Chinese in the EB-5 Unreserved backlog have older priority dates than Indians. Indians did not receive less than than 7% of total EB-5 visas, even though they were applying in the Unreserved category that can only access 68% of total EB-5 visas. With no Indian applicants to accommodate in the Set Aside categories, Department of State could allow Unreserved applicants to use the total cap numbers available to Indians. The 7% country limit applies to the EB-5 category as whole, not in isolation within each subcategory.

    Example of a country receiving more than 7% of Unreserved visas: Vietnam received 17% of the 5th Unreserved visas issued in the first eight months of 2024. DOS has been free to issue more than 7% of annual EB-5 visas to Vietnam, because Vietnam is not defined as an “oversubscribed” country and thus was not subject to per-country limits in 2024. Although Vietnam has a large demand for EB-5 Unreserved visas, Vietnam is not limited by a country cap because it does not currently show excess demand overall across EB and FB categories.

    Examples of oversubscribed countries free to receive more than 7% of set aside visas: the May 2024 visa bulletin lists China, India, Mexico, and the Philippines as “oversubscribed” countries subject to per-country pro-rating. And yet the visa bulletin lists all of these countries as “C” – no limit on allocation – in all the EB-5 5th Set-Aside categories. Per-country limits are not in effect for anyone in the EB-5 5th Set-Aside classes as of May 2024, because these classes have more visas than applicants as of May 2024. To avoid wasting visas in a class with insufficient qualified applicants, DOS must allocate visas to all qualified applicants in that class regardless of country.

    Cross Reference:

    Source References:

    (Updated as of August 22, 2024)

    15. What does “retrogression” mean?

    In popular use, retrogression means a situation in which visa backlogs lead to visa wait times.

    Technically, retrogression refers to the backward movement of final action dates in the Visa Bulletin.

    When qualified visa demand for a category or country exceeds visas available to allocate, the Department of State uses the Visa Bulletin to control demand, signaling which applicants can move forward and which must wait. The Visa Bulletin Chart A has three signals:

    • “C” means “Current”: no restriction on visa allocation to visa applicants in that country/category in that month. A country and category are “Current” when visa supply available to that country and category currently exceeds applicant demand, such that Department of State currently need take no steps to limit visa issuance for that country/category.
    • A calendar date in the Visa Bulletin Chart A is a “cutoff date”: the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a visa number in that month. From month to month, Department of State can move the cutoff date forward in time, thus releasing more applicants to receive visas, or can move the date backward in time, thus further restricting the pool of applicants qualified for final action on their visa applications.
    • “U” means “unauthorized”: no visa allocation to any applicants in that country-category in that month. For example, the 5th Regional Center category was “U” in the July 2021 Visa Bulletin after the regional center program lost authorization.
      The Visa Bulletin provides traffic control when applicant demand exceeds the limited annual supply of visa numbers. Visa applicants from countries and priority dates held back by the red light of a Visa Bulletin cut-off date start to accumulate backlogs. The backlogged applicant may need to wait months or even years for his or her turn at the visa window. These visa waits, resulting from an imbalance between applicant demand and visa supply, get called retrogression.
      When does retrogression start? Retrogression is not publicly announced until a crowd of applicants reaches the visa stage. The Visa Bulletin only needs to control which qualified visa applicants can receive final action on their visa applications; it does not control or report how many people start the EB-5 process by making an investment and filing I-526. However, the demand/supply imbalance behind retrogression starts as soon as the crowd first forms. When EB-5 investors file I-526 and I-526E to qualify for a visa category, they enter a pipeline that will eventually emerge at the visa stage. EB-5 investors wondering “will I experience retrogression” should not only look at Visa Bulletin – a late-stage signal for excess demand – but should ask “is there a crowd around me all heading toward the same visas for which I will eventually be applying?” It is difficult to assess pipeline demand due to limited government reporting, but EB-5 trade associations including IIUSA and AIIA are a good reference for the most recent available data.

    Source References:

    • “Sometimes, a priority date that is current one month will not be current the next month, or the cut-off date will move backward to an earlier date. This is called visa retrogression, which occurs when more people apply for a visa in a particular category than there are visas available for that month. Visa retrogression generally occurs when the annual limit for a category or country has been exhausted or is expected to run out soon.” Quoted from “Visa Availability and Priority Dates” USCIS: Accessed 7/10/2024
    • “When the demand is higher than the supply of visas for a given year in any given category or country, a visa queue (a waiting list or backlog) forms. To distribute the visas among all preference categories, DOS allocates the visas according to a prospective immigrant’s preference category, country of chargeability, and priority date. DOS uses the priority date to determine an immigrant’s place in the visa queue.” Quoted from “Visa Availability and Priority Dates” USCIS: Accessed 7/10/2024
    • “Q. If a category/country is “Current” in the Visa Bulletin, does that mean that there must be little or no inventory of pending applications with USCIS and DOS for that category/country? A. No. A category can be “Current” in the Visa Bulletin even when there are tens of thousands of applications pending with the agencies.” Quoted from “Employment-Based Adjustment of Status FAQs” USCIS
    • Each monthly visa bulletin has notes explaining the visa bulletin method and terms.
    • IIUSA and AIIA are generally the best sources for the best available data for EB-5 pipeline demand.

    (Updated as of August 22, 2024)

    16. Can China-born applicants get more than 7% of High Unemployment Set Aside visas?

    China-born applicants will be limited to 7% of High Unemployment visas if and when there is sufficient qualified demand from other countries to use up the remaining 93% of High Unemployment visas for the year. China-born applicants are not limited to 7% of High Unemployment visas as of 2024, but could potentially be so limited in 2026.

    Few High Unemployment applicants have reached the visa stage as of 2024, and so applicant country of birth is not yet a limiting factor in High Unemployment visa issuance. Nothing prevents China-born applicants from receiving most of the few High Unemployment visas issued in 2024, just as Chinese received most of the EB-5 visas issued in the low-demand years before 2015. This will likely also be the case in 2025.

    Once qualified High Unemployment applicants at the visa stage exceed the annual visa supply, then country of birth will become a limiting factor. Department of State will then limit countries that qualify as “oversubscribed,” including China, to 7% of available visas, to give opportunity for applicants from non-oversubscribed countries to get as many visas as they need. In any year when High Unemployment visas are still left on the table after satisfying demand from oversubscribed countries, then those visas can be made available over the 7% limit to applicants from oversubscribed countries.

    Based on what is known of the High Unemployment demand pipeline as of 2024, and the pace of USCIS processing, it appears likely that qualified High Unemployment applicants at the visa stage could exceed visa supply in 2026. At that point, it is likely but not certain that China could indeed be limited to 7% of High Unemployment visas. There are sufficient rest-of-world applicants also in the High Unemployment pipeline to absorb available visas and not leave extra visas on the table to issue to cap-limited countries above 7%. However, since many applicants are receiving approvals for both High Unemployment and Unreserved, it is possible that a significant number of applicants potentially in the High Unemployment pipeline will actually choose an Unreserved visa, thus lightening pressure on Unreserved demand. If Chinese accounted for less than 7% of applicants in the Unreserved and Rural categories, this would also create opportunity to issue more than 7% to Chinese in High Unemployment. However, Chinese represent a large proportion of applicants in all EB-5 categories.

    Cross Reference:

    (Updated as of August 22, 2024)

    17. Can India-born applicants get more than 7% of High Unemployment Set Aside visas?

    India-born applicants will be limited to 7% of High Unemployment visas if and when there is sufficient qualified demand from other countries to use up the remaining 93% of High Unemployment visas for the year. India-born applicants are not limited to 7% of High Unemployment visas as of 2024, but could potentially be so limited in 2026.

    Few High Unemployment applicants have reached the visa stage as of 2024, and so applicant country of birth is not yet a limiting factor in High Unemployment visa issuance.

    Once qualified High Unemployment applicants at the visa stage exceed the annual visa supply, then country of birth will become a limiting factor. Department of State will then limit countries that qualify as “oversubscribed,” including India, to 7% of available visas, to give opportunity for applicants from non-oversubscribed countries to get as many visas as they need. In any year when High Unemployment visas are still left on the table after satisfying demand from oversubscribed countries, then those visas can be made available over the 7% limit to applicants from oversubscribed countries. Historically all “otherwise unused” visas in the legacy EB-5 categories were allocated to Chinese, who had the oldest priority dates. But Chinese and Indians have concurrent priority dates in High Unemployment, so they would be on a similar footing to compete with any High Unemployment visas left unused from the rest of the world.

    Based on what is known of the High Unemployment demand pipeline as of 2024, and the pace of USCIS processing, it appears likely that qualified High Unemployment applicants at the visa stage could exceed visa supply in 2026. At that point, it is likely but not certain that India could indeed be limited to 7% of High Unemployment visas. There are sufficient rest-of-world applicants also in the High Unemployment pipeline to absorb available visas and not leave extra visas on the table to issue to cap-limited countries above 7%. However, since many applicants are receiving approvals for both High Unemployment and Unreserved, it is possible that a significant number of applicants potentially in the High Unemployment pipeline will actually choose an Unreserved visa, thus lightening pressure on Unreserved demand. If Indians accounted for less than 7% of applicants in the Unreserved and Rural categories, this would also create opportunity to issue more than 7% to Indians in High Unemployment. However, this is not the case.

    Cross Reference:

    (Updated as of August 22, 2024)

    18. Does Taiwan risk retrogression in the EB-5 High Unemployment Set Aside category?

    A High Unemployment applicant from Taiwan could experience retrogression together with other countries if the category runs short on visas for everyone. But Taiwan will never have a country-specific limit for High Unemployment, despite high country-specific demand, because Taiwan does not qualify for a country cap on visa issuance.

    Of all I-526 and I-526E filed for High Unemployment Area investments in 2022-2023, 19% were filed by Taiwanese. But Taiwan is not subject to prorating under a 7% per-country limit, because Taiwan is a relatively low-demand country outside of EB-5 (and is counted separately from China for the purpose of visa issuance). Taiwan can only qualify as “oversubscribed” and subject to the country cap if and when it demands more than 7% of total family-based and employment-based visas. Taiwan has never been remotely close to that threshold. High visa demand within one category is not sufficient to trigger a limit.

    Cross Reference:

    (Updated as of August 22, 2024)

    19. Can people from low-demand countries experience retrogression in EB-5?

    If a category has too many qualified applicants, even after using country caps to hold back applicants from oversubscribed countries, then that category will have retrogression for all applicants. In other words, the Visa Bulletin will use cut-off dates to control applicants from every country, not only applicants from individually oversubscribed countries (China, India, Mexico, the Philippines).

    Historically, EB-5 has never had worldwide retrogression — first because of low visa demand overall until 2015, and then because EB-5 demand was concentrated in the cap-limited countries of China and India. Rest-of-world applicants have been historically insufficient to absorb all the EB-5 visas that remained after China and India received at least 7% each under country limits.

    However, worldwide retrogression within a category is possible, as regularly demonstrated in the Visa Bulletin for EB-2, EB-3, and EB-4.

    From what we know of pipeline visa demand today, it is theoretically possible (but not certain) for all countries to experience retrogression in the EB-5 High Unemployment category in 2026. The chance for “rest-of-world” retrogression rests on the fact that the HU category will have at most about 2,000 annual HU visas available, while it is likely that there are more than 2,000 potential ROW applicants in the HU pipeline. The risk of ROW retrogression for High Unemployment can be abated to the extent that slow processing prevents HU applicants from reaching the visa stage, and/or to the extent that HU applicants end up not actually claiming HU visas, whether by being denied or opting for Unreserved visas.

    Cross Reference:

    (Updated as of August 22, 2024)

    20. Is Vietnam subject to country limits or retrogression in EB-5?

    Vietnam is not generally subject to country-specific limits in EB-5, because Vietnam usually does not qualify as an “oversubscribed chargeability area.” A country only qualifies as “oversubscribed” when applicants from that country threaten to exceed 7% of the total employment-based and family-based visas. High demand within the EB-5 category alone does not trigger per-country limits.

    The list of countries that qualify as oversubscribed, and thus subject to a country cap on visa issuance, can be found in any month’s visa bulletin Section A.3, which concludes, “The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa issuances will exceed the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: _________ .” Every year from 2005 to 2024, monthly Visa Bulletins have completed that sentence by listing at least the following four countries as “oversubscribed chargeability areas”: China-mainland, India, Mexico, and Philippines. Vietnam was also included on this Visa Bulletin list in 2018, 2019, 2020, and 2021, but not before or since.

    Vietnam does have a high level of demand in EB-5, so it could face country-specific retrogression if the country ever again qualifies as “oversubscribed” based on also having high demand outside of EB-5. For reference, Vietnamese received 3% of total family-based and employment-based visas in FY2022, and 6% of total family-based and employment-based visas in FY2023, according to the Annual Report of the Visa Office. Vietnam is one of the few countries in the world that at least regularly approaches the 7% threshold for systemwide demand. Vietnam has not exceeded that 7% threshold in most years, but it’s not impossible.

    If increasing family-based plus employment-based demand in the future ever results in Vietnam returning to the list of “oversubscribed chargeability areas” in a future Visa Bulletin, then Vietnam will have a column in both the family-sponsored and employment-based charts in the Visa Bulletin. At that point, EB-5 cutoff dates for Vietnam are likely to control high EB-5 demand. Until that happens, however, Department of State is free to issue more than 7% of visas in any category, including EB-5 Unreserved and EB-5 Set-Aside, to Vietnamese applicants. For example, 13% of the EB-5 Unreserved visas issued in the first 10 months of FY2024 went to Vietnamese applicants.

    Even if not subject to country-specific limits, an EB-5 applicant from Vietnam could potentially experience future retrogression together with applicants from other countries. Worldwide retrogression can happen if a category runs short on visas for everyone. This has historically never happened in EB-5, but occurs regularly in EB-2 to EB-4, and not impossible for the future.

    Cross Reference:

    Source References:

    (Updated as of August 22, 2024)

    21. Is there a difference between visas available to regional center investors and visas available to direct EB-5 investors?

    Since the EB5 Reform and Integrity Act of 2022 (“RIA”), EB-5 investors face more-or-less the same visa availability and visa timing outlook regardless of whether they are associated with a regional center.

    Prior to March 2022, the regional center/direct EB-5 distinction was more significant for visa allocation. The pre-RIA law included a visa set-aside for regional center applicants. The pre-RIA did not state that regional center investors could continue to apply for visas if the regional center program lost authorization. Visa Bulletins prior to March 2022 treated regional center and direct EB-5 applicants the same until periods when the regional center program lapsed. During previous program lapses, the regional center EB-5 visa codes became “Unauthorized” in the Visa Bulletin, while the direct EB-5 visa codes advanced quickly to use as many EB-5 visas available as possible.

    RIA repealed the law that had created the regional center set-aside visas and added a new protection from expiring legislation.  Under RIA, EB-5 visas are reserved based on project types/locations (high unemployment, rural, infrastructure). There are no visas set aside specifically for regional center or direct applicants. All TEA investments and thus all categories of EB-5 visas are equally available to regional center and direct EB-5 investors – except for Infrastructure, which is only practically possible in the regional center context. Under RIA, EB-5 investors can freely choose regional center investments, at least through 2026, without fear that they will be prevented from applying for visas if the regional center program loses authorization in 2027. Meanwhile, direct/standalone EB-5 continues to enjoy permanent authorization.

    If two investors born in the same country file EB-5 petitions today in the same EB-5 TEA category, they should theoretically get visas at the same time, regardless of whether one is a regional center investor or one is a direct EB-5 investor. No rules related to visa allocation call for them to be treated differently. In practice, however, their outcomes may differ. Direct EB-5 I-526 and regional center I-526E are processed separately with different workflows at USCIS.  I-526 vs. I-526E processing time difference could cause the regional center investor to arrive earlier at the visa stage than the direct investor. USCIS has stated that the “priority processing” required for rural petitions applies only to regional center, not to direct EB-5 petitions. This gives regional center investors in rural projects a timing advantage for I-526E processing. The “priority processing” for rural projects does not apply to consular processing or to I-485. But regional center rural investors may gain an advantage if swift I-526E processing allows them to start the visa application stage earlier than direct EB-5 rural investors.

    Cross Reference:

    Source References:

    • Section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related
    • Agencies Appropriations Act, 1993 (8 U.S.C. 1153; Public Law 102– 395) originally set aside 300 visas for regional center applicants, later amended in 1997 to 3,000 visa set aside for regional center applicants. The EB-5 Reform and Integrity Act of 2022 (as part of Public Law 117-103) repealed Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act (RIA Section 103a), and defined new Reserved visa categories (RIA Section 102).
    • Section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)) concludes with “Protection from expired legislation”
    • USCIS clarified that priority rural processing applies only to regional center petitions in EB-5 General Questions and Answers (updated May 2024) (PDF, 287.62 KB).

    (Updated as of August 22, 2024)

    22. Does filing I-485 lock in access to an EB-5 visa?

    Filing I-485 does not lock in access to an EB-5 visa, because Department of State does not allocate a visa number when I-485 is filed. Visas are only allocated when the applicant is eligible for final action, which will occur after I-526 or I-526E is approved and the I-485 can be adjudicated — assuming that visas are still available to the applicant’s category/country at that point.

    Filing I-485 does secure potential access to valuable non-immigrant benefits, including the opportunity to apply for work authorization and advance parole, and to renew those nonimmigrant benefits even if retrogression delays getting an EB-5 visa.

    An EB-5 investor using adjustment of status must consult the Visa Bulletin at two different points:  in the month that he concurrently files I-526E and I-485, and in the months after his I-526E is approved. At the time of filing I-526E, the investor depends on the Visa Bulletin Chart B Dates for Filing being “Current” for his country and category, thus allowing him to concurrently file I-485.  Chart A Final Action is irrelevant for him in the beginning, because Chart A controls visa issuance at a stage that the investor has not yet reached.  Once his I-526E is approved, then the investor depends on the monthly Visa Bulletin Chart A to show when a visa can be issued to him. The relevant Visa Bulletin to consult is the bulletin controlling visa issuance in the current month, not the Visa Bulletin from a past date when he started the EB-5 process.

    Cross Reference:

    Source References:

    (Updated as of August 22, 2024)

    23. What is the backlog situation for EB-5 Reserved / Set-Aside visas?

    The path to an EB-5 visa goes through two stages: first petition processing (I-526 or I-526E), then visa application (consular processing or I-485 status adjustment).  Visa backlogs are shaped by the sum of people at both stages. Retrogression occurs in response to the number of people at the visa application stage, once current visa applicants exceed visas currently available.

    The Reserved / Set Aside visa categories (Rural, High Unemployment, and Infrastructure) were created on March 15, 2022, by the EB-5 Reform and Integrity Act (RIA). From April 2022 to June 2024, USCIS reported receiving 5,344 I-526 and I-526E petitions and processing 429 of them. Assuming an average ratio of visas-to-investors of at least 2:1, this suggests pipeline demand for at least 10,600 visas from post-RIA applicants as of June 2024, of which only about 20% (or about 900 applicants) had reached the visa stage.  Through early 2024, the breakdown by category was 37% Rural, 61% High Unemployment, 0% Infrastructure, and 1% other.

    Data source: April 18, 2024 FOIA request by WR Immigration

    Due to processing delays, DOS issued no set-aside visas in FY2022 or FY2023, and at most a few hundred in FY2024. Thus the group of applicants for set-aside visas in 2025 and beyond is effectively most investors with priority dates since March 2022, plus their family members, less people who will receive denials or who will request to be allocated an Unreserved visa rather than the TEA set aside visa for which they also qualify.

    Applicants in the EB-5 Set-Aside Rural pipeline can receive visas at a rate of about 2,000 visas per year in a normal year (20% of about 10,000), while Set-Aside High Unemployment is about 1,000 visas per normal year (10% of 10,000). These allocations are a little more than doubled in 2025 due to carryover from previously unused visas.  With 4,000+ Rural visas initially available, and about 2,000 per year thereafter, the 1,694 Rural investors as of early 2024 will likely not create a backlog at the visa stage, even with the addition of family members. (The number of Rural investors added to the pipeline since early 2024 is currently unknown.)

    With 2,000+ High Unemployment visas initially available, and about 1,000 per year thereafter, the 2,786 High Unemployment investors already queued up as of early 2024 are likely to exceed visa availability when joined by spouses and children at the visa application stage. (The situation is volatile since new I-526 and I-526 are being filed daily. The TEA breakdown of the 2,000+ I-526 and I-526E filed since early 2024 is unknown, and it is also possible that some High Unemployment investors will ultimately choose to request an Unreserved visa.)

    Cross References:

    Source References:

    (Updated as of September 18, 2024)

    24. What is the backlog situation for EB-5 Unreserved visas?

    The path to an EB-5 visa goes through two stages: first petition processing (I-526 or I-526E), then visa application (consular processing or I-485 status adjustment). Visa backlogs are shaped by the sum of people at both stages. Retrogression occurs in response to the number of people at the visa application stage, once current visa applicants exceed visas currently available.

    In May 2024, there were at least 50,000 total applicants in the pipeline for EB-5 Unreserved visas, with about 80% at the visa stage. The pipeline at that point included about 39,000 Unreserved EB-5 visa applicants registered at the National Visa Center for consular processing, about 6,000 EB-5 applicants with pending I-485 applications at USCIS, and over 5,000 pre-RIA pending I-526 at USCIS (with pending I-526 likely representing over 10,000 potential visa applicants). The demand pipeline for Unreserved visas might also include post-RIA applicants (that is, people with priority dates after March 2022), to the extent that post-RIA investors choose to select an Unreserved visa. (Over 90% of post-RIA investments have been in TEAs, thus qualifying for set aside visas, but it’s theoretically possible that some post-RIA investors will request an Unreserved visa instead.)

    Table 1 (from a June 2024 article by IIUSA) illustrates the breakdown of EB-5 applicants registered at NVC by country and priority date as of mid-May 2024. (Note that registered applicants with 2022 and 2023 priority dates include primarily applicants for Set Aside visas.)

    Applicants in the EB-5 Unreserved pipeline can receive visas at a rate of about 6,800 visas per year in a normal year (68% of about 10,000). FY2024 had an atypical 14,000+ Unreserved visas and FY2025 will have 10,000+ Unreserved visas thanks to carryover from unused Reserved visas. In context of such limited supply, a pipeline of more than 50,000 applicants means backlogs.

    If applicants simply received visas in FIFO order, then the pre-RIA Unreserved backlog could be estimated as over seven years (the time to clear 50,000+ applicants at an average 7,000 visas per year). However, country caps mean that some visa applicants wait longer than others. Applicants from China and India can face backlogs longer than seven years in Unreserved, while Rest of World countries have not yet been delayed by visa availability. Any post-RIA applicants who compete for Unreserved visas will be placed, based on priority date and country, at the end of the queues illustrated in Table 1.

    Cross References:

    Source References:

    (Updated as of August 22, 2024)

    25. When will retrogression happen in the Rural Set Aside category?

    Retrogression refers to the Visa Bulletin setting cut-off dates to control excess demand from qualified visa applicants. Through 2024, retrogression has not occurred in the Visa Bulletin for the 5th Set Aside Rural category for any country. Meanwhile, it possible but not certain that the conditions for Rural retrogression are already in place.

    Retrogression happens:

    • IF a large crowd of potential applicants forms, with enough people to exceed visa availability, and
    • WHEN that large crowd reaches the stage of becoming qualified visa applicants.

    Therefore, the primary questions to ask about future retrogression are the following:

    1. Has a large crowd of potential applicants formed, with sufficient applicants for the same visas (considering category and country of birth) to exceed annual availability?
    2. When are an excess number of applicants likely to make it through I-526 or I-526E processing and reach the point of becoming qualified to receive visas?

    If the answer to the first question is “yes,” then a new investor joining the crowd is entering an excess demand situation and will experience retrogression whenever he reaches the visa stage (unless his case is processed out-of-order). If a long queue has already formed, then retrogression is a foregone conclusion for someone entering the back of the queue, and the only timing question is how long USCIS processing will take to advance that queue past I-526E processing and to the visa stage, where the Visa Bulletin controls traffic.

    Through August 2024, the Visa Bulletin has shown no retrogression for the 5th Set Aside Rural category. This indicates that a crowd of Rural applicants has not yet reached the visa stage in 2024. The Visa Bulletin does not reveal whether or not a crowd of potential Rural applicants has already formed but still waiting in I-526/I-526E processing as of 2024.

    No Rural visas were issued in FY2022 or FY2023, and a very minimal number were issued in FY2024. This means that the pipeline of applicants for Rural visas in 2025 and beyond is essentially all Rural investors since 2022, plus their family members, less applicants who will end up being denied or choose to select an Unreserved visa instead of a Rural visa.

    As of August 2024, the best we know is that I-526/I-526E filings associated with Rural investments in 2022 and 2023 did not reach a total threshold likely to exceed initial Rural visa availability, even if all Rural investors and their families with 2022 and 2023 priority dates reached the visa stage and applied for Rural visas in a single year. I-526E filings from China and India individually exceeded sustainable levels in 2022/2023, but country of birth does not limit visa issuance so long as total Rural applicants fall short of total Rural visa available. If the pipeline of potential Rural applicants doubled in 2024, then Rural retrogression would be a foregone conclusion for applicants at the end of that queue.

    With new petitions being filed daily and no control on the number of I-526/I-526E that can be filed, the situation is dynamic. However, even when an excess pipeline of Rural applicants forms, USCIS processing times will delay retrogression appearing in the Visa Bulletin. As of mid 2024, the speed and pace of I-526E processing was sufficiently low that Department of State did not foresee Visa Bulletin retrogression for any TEA country or category through at least the first half of 2025.

    Cross Reference:

    Source References:

    (Updated as of August 22, 2024)

    26. When will retrogression happen in the High Unemployment Set Aside category?

    Retrogression refers to the Visa Bulletin setting cut-off dates to control excess demand from qualified visa applicants. Through August 2024, retrogression has not occurred in the Visa Bulletin for the 5th Set Aside High Unemployment category for any country. However, High Unemployment retrogression is a foregone conclusion based on the volume of pipeline demand for High Unemployment visas.

    Retrogression happens:

    • IF a large crowd of potential applicants forms, with enough people to exceed visa availability, and
    • WHEN that large crowd reaches the stage of becoming qualified visa applicants.

    Therefore, the primary questions to ask about future retrogression are the following:

    1. Has a large crowd of potential applicants formed, with sufficient demand for the same visas to exceed annual visa availability?
    2. When will an excess number of applicants make it past I-526 or I-526E processing and reach the point of becoming qualified to receive visas?

    As of August 2024, High Unemployment retrogression is likely a foregone conclusion because the answer to the first question is “yes.” However, retrogression has not emerged in the visa bulletin because the answer to the second question is “not yet.”

    No High Unemployment visas were issued in FY2022 or FY2023, and a very minimal number were issued in FY2024, due to processing constraints. This means that the pipeline of applicants for High Unemployment visas in 2025 and beyond is essentially all High Unemployment investors since 2022, plus their family members, less applicants who will end up being denied or who will ultimately choose to select an Unreserved instead of a High Unemployment visa.

    From April 2022 through December 2023, nearly 3,900 I-526/I-526E were filed, of which nearly 2,500 (63%) were identified with the High Unemployment category. Assuming an average ratio of visas-to-investors of at least 2:1, this suggests that there was pipeline demand for over 5,000 visas from High Unemployment applicants as early as 2023. (About 2,000 more I-526/I-526E were filed January-June 2024, but the TEA breakdown for 2024 is as-yet unknown.) High Unemployment visa availability is 2,000+ in a carryover year and about 1,000 in a normal year. With pipeline demand significantly exceeding annual supply, the High Unemployment category is already heading into a visa-stage backlog – at least from the perspective of new potential applicants entering the end of the queue.

    Backlog estimates assume that TEA investors selecting the “high unemployment” category when filing I-526 or I-526E will go on to claim High Unemployment visas. It is possible that many could choose instead to request Unreserved visas, thus decreasing the High Unemployment pipeline backlog. It is also possible that the actual ratio of visas-to-investors could prove much higher than 2:1, based on actual approval rates and family sizes, which would increase the backlog size from the rough estimates above. With new petition filings daily and no control on the number of I-526/I-526E that can be filed, the situation is dynamic.

    Although High Unemployment visa retrogression appears to be a foregone conclusion based on number of potential applicants, it is not yet a reality in the Visa Bulletin. Visa Bulletin movement depends on pipeline High Unemployment applicants reaching the visa application stage, which in turn depends on the speed and pace of I-526/I-526E processing at USCIS. As of mid 2024, the speed and pace of I-526E processing was sufficiently low that Department of State did not foresee Visa Bulletin retrogression for any TEA country or category until at least the second half of 2025. As long as the Visa Bulletin continues to remain “Current” for 5th High Unemployment, the option to concurrently file I-485 will remain open, and EB-5 can at least offer the non-immigrant benefits that come with a pending I-485, even though immigrant visa waits for new applicants may be lengthy.

    Cross Reference:

    Source References:

    (Updated as of August 22, 2024)

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