Reserved Visa Rules, Possible Future Visa Allocation, and Recommendations
By: Joseph Barnett | Partner, WR Immigration; Charlie Oppenheim | Visa Consultant & Former Chief of Immigrant Visa Control at the U.S. Dept. of State; Lee Li | Director of Policy Research & Data Analytics, IIUSA
One of the biggest challenges for EB-5 investors and Regional Centers after the passage of the 2022 EB-5 Reform and Integrity Act (RIA) is understanding the impact of the “Reserved Visas” provisions on immigrant visa wait times. These reserved visas impact actual job creation requirements and the timing of repayment of EB-5 capital to immigrant investors. The relevant RIA provisions state:
‘‘(I) IN GENERAL.—Of the visas made available under this paragraph in each fiscal year—
‘‘(aa) 20 percent shall be reserved for qualified immigrants who invest in a rural area;
‘‘(bb) 10 percent shall be reserved for qualified immigrants who invest in an area designated by the Secretary of Homeland Security under clause (ii) as a high unemployment area; and
‘‘(cc) 2 percent shall be reserved for qualified immigrants who invest in infrastructure projects.
‘‘(II) UNUSED VISAS.—
(aa) CARRYOVER.—At the end of each fiscal year, any unused visas reserved for qualified immigrants investing in each of the categories described in items (aa) through (cc) of subclause (I) shall remain available within the same category for the immediately succeeding fiscal year.
(bb) GENERAL AVAILABILITY.—Visas described in items (aa) through (cc) of subclause (I) that are not issued by the end of the succeeding fiscal year referred to in item (aa) shall be made available to qualified immigrants described under subparagraph (A).
The two primary impacts of these provisions are (a) the incentive of a quicker visa number availability for new investments in qualifying areas or projects and (b) a reduction in the number of visas made available to pre-RIA EB-5 investors. It also changed the structure of the Visa Bulletin, which is issued each month by the U.S. Department of State (“DOS”) to summarize the availability of immigrant numbers for applicants waiting to apply for immigrant visas at U.S. consulates and embassies abroad or to file for employment-based or family-sponsored preference adjustment of status with U.S. Citizenship and Immigration Services (“USCIS”) and how Final Action Dates (“FAD”) will advance.
This article seeks to update EB-5 stakeholders on the U.S. government’s response to these provisions, provide insight on possible future visa allocation, and make recommendations so USCIS and DOS can best carryout congressional intent.