“Suzanne Says” is an opinion column on iiusa.org written by IIUSA Member Suzanne Lazicki. The views of the author are their own and do not necessarily reflect the views or position of IIUSA.
By Suzanne Lazicki, originally published on lucidtext.com
Fiscal Years 2023 and 2024 are good years for EB-5 visa availability, with mixed outlook for visa issuance. I assess the picture by looking at EB-5 quota limits, EB-5 dates in the October 2023 Visa Bulletin and prior visa bulletins, I-526 filing trends associated with visa bulletin dates, the NVC waiting list, monthly visa issuance, and I-526 and I-526E processing trends. The picture that emerges from all this data shows winners and losers created primarily by the processing capacity of USCIS and Department of State. I begin with comments, followed by charts and tables.
Winners in 2023/2024 EB-5 visa issuance
Win for unreserved EB-5 visa applicants generally
Department of State reports that “most” 2023 employment-based visas available were actually used in 2023 – making this the first year since 2019 without major EB visa loss. And 2024 could be an even better year for unreserved visa issuance, contingent on USCIS and DOS processing capacity. Unreserved EB-5 gets a windfall in 2024 of the 6,400 reserved EB-5 visas not used in 2022, on top of its regular 68% allocation, for a total of over 13,000 unreserved visas available in FY2024. (See Table 1 below.) If only DOS and consulates can manage to issue that many visas!
Win for unreserved visa applicants from India
India continues to be subject to country cap limits, but Mumbai has been issuing EB-5 visas aggressively and efficiently, and the adjustment of status process is working. As result, Indians have received as many as or more than the number of EB-5 visas technically available to Indians in 2022 and 2023 (see charts and tables below).
And the Visa Bulletin is being very generous to India. The October 2023 Visa Bulletin has already moved the India Final Action Date to December 15, 2018, from its pre-retrogression date of June 2018 – thus already releasing more Indian applicants for final action in 2024 than visas available to India in 2024, by my calculation. (My estimate considers the 773 I-526 filed by Indians from June 2018 to December 2018, and the about 920 unreserved EB-5 visas available in FY2024 under the country cap.) And even more generously, the October 2023 Visa Bulletin gives India EB-5 a Filing Date in April 2022. This allows all Indians in the queue for unreserved EB-5 visas to file I-485 and apply for advance parole and travel benefits — even though EB-5 green cards may not be available for post-2019 Indian priority dates until the end of the decade, absent a large number of dropouts from the current queue. (See my backlog data file for detail, or AIIA’s calculator tool.)
Wins for some unreserved visa applicants from China
Poor performance by many consulates worldwide has meant that rest-of-world EB-5 visa issuance has remained fairly low — below rest-of-world EB-5 demand. This failure benefits Chinese applicants by increasing the number of “otherwise unused” EB-5 visas left available for allocation to the oldest priority dates – i.e. to China-born applicants. EB-5 visa issuance to China in 2023 exceeded what I had expected looking at the waiting list from other countries. (See Table 2 below.) If only the Guangzhou consulate can keep up, the large number of unreserved EB-5 visas available in 2024 should significantly benefit the oldest Chinese priority dates. But it depends on the Guangzhou consulate managing unusually high-volume EB-5 interview scheduling this year.
Another mixed blessing comes from discriminatory policies resulting in high denial rates for Chinese I-526 and visa applications. As hundreds of Chinese keep falling out of the EB-5 backlog due to denials/revocations/withdrawals, those who do remain in the process keep advancing hundreds of spaces closer to getting a visa. The October 2023 Visa Bulletin advances the China EB-5 Date for Filing a whole year — from January 2016 (where the date had lingered since early 2020) to January 2017. This unprecedented large leap potentially allows at least 20,000 more Chinese EB-5 visa applications on the table – or so one would think, knowing that Chinese filed 10,450 I-526 petitions between January 2016 and December 2016. But Department of State must be counting on a large percentage of those 10,450 Chinese EB-5 investors who started in 2016 having subsequently dropped out, or lost their spouses and children, such that their actual visa applications won’t in practice overwhelm the near-term visas available to China. (Depending on rest-of-world visa issuance and Guangzhou capacity, China could get at most about 9,000 EB-5 visas in 2024.)
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