Visa Retrogression, the Visa Bulletin, and EB-5

Every year, 7.1% of the worldwide Employment-Based Preference visas are allocated to EB-5 visas. Each country can receive a maximum of 7% of these visas, based on the individual’s country of birth. For example, an individual born in England but who has Indian citizenship will fall under England’s total number of visas. England would be considered the immigrant’s country of chargeability.

Complicating matters, countries such as India and China tend to submit more applications than the allotted quota, creating a backlog. This backlog forms a queue that grows longer with each additional application. When visas become available again at the start of the fiscal year on October 1, applications at the front of the queue are processed.

What is Retrogression?

Visa retrogression occurs when there are more applications accumulated than available visas. EB-5 visas are processed based on their priority date, or the date USCIS accepts the investor’s application for processing. This date can be found on the Form I-797C, Notice of Action.

What is the Visa Bulletin?

The Visa Bulletin is updated by the Department of State to create cut-off dates for visa processing. Anyone who has an application earlier than the cut-off date has a visa available based on the approval of their application.

Consider the following hypothetical: There are fifty visas available for one hundred applicants. Therefore, the priority date of the fifty-first applicant in the queue would be considered the cut-off date. The rest of the applicants in the queue must look at the visa bulletin the following month to see if the cut-off date changes.

If there are enough visas for all applicants, then the category is marked on the visa bulletin as “Current” or “C.”

Retrogression and Concurrent Filing

Visa retrogression impacts applicants inside the United States. One of the chief changes to EB-5 made in recent years is concurrent filing. Concurrent filing allows an applicant to file their I-526E, I-485, I-765, and I-131 simultaneously only if there is a visa available. In other words, the Visa Bulletin must be Current for their country of chargeability.

Without being able to file concurrently, an investor will be unable to apply for their work permit and travel document while they wait for the application to be processed. They must therefore have an underlying non-immigrant visa status to remain in the United States.

Some non-immigrant visas allow dual intent, which allows the pursuit of an immigrant visa. H-1B holders are permitted to pursue permanent residency. Meanwhile, other visas like the B-1 or F-1 do not allow dual intent and these visa holders must demonstrate their intent to return to their home countries.

Historically Retrogressed Countries of Chargeability

As of May 2024, all set-aside EB-5 visas from all countries of chargeability are marked as Current. This Current status is subject to change in the coming months. Countries like India and China retrogressing can have immense consequences for non-immigrant visa holders in the United States who wish to apply for the EB-5.

Individuals belonging to historically retrogressed countries of chargeability are encouraged to apply as soon as possible.

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