Each month the US State Department publishes the official Visa Bulletin, which is the source for information on visa availability in the United States.  It shows which approved immigrant applicants may move forward to obtain their immigrant visa based on the date the original petition was filed: If your EB-5 petition is approved by USCIS, you go to the Visa Bulletin chart to see if there is a visa currently available for you.

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How Many Visas Are Available?

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There are 140,000 employment-based green cards available each year, with specific limits for each “preference” category. US immigration law also sets limits on the number of green cards available based on the country of origin. No single country of origin can account for more than 7% of the green cards issued across all family-based and employment-based categories.

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Why are Some Countries Called Out?

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Although generally not an issue for most countries, this country-of-origin cap can create backlogs for EB-5 investors from China and India.  (Generally, there are not enough EB-5 applicants from Mexico or the Philippines to create backlogs for those countries, which are the only other countries subject to the country-of-origin caps.)

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Potential EB-5 participants should refer to the Visa Bulletin to understand whether there are visas immediately available for them after their I-526 or I-526E petition is approved.  The chart for EB-5 from the June 2024 bulletin shows the following:

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June 2024: Final Action Dates for Employment-Based Preference Classes (excerpt to show just EB-5)

What do the Dates in the Boxes Mean?

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This Visa Bulletin shows there is currently a backlog only for investors approved under the “old” EB-5 program, which was in place before the EB-5 Reform and Integrity Act of 2022 (the “RIA”), effective on March 15, 2022.  

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Investors from China and India who applied under the old program after the cutoff dates listed (December 15, 2015, for China; December 1, 2020, for India) cannot immediately seek to get their visa and move to the United States. They must wait for the listed date to move forward to their petition’s application date, generally known as their “priority date”.

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Note it is only the “Unreserved” preference category in EB-5 that shows a cutoff date.  The new reserved preference categories for EB-5 all show as ‘C’ or “Current”, meaning anyone who has an approved EB-5 petition related to the new reserved visas created by the RIA can start the process to immigrate to the US, even those from China and India.

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Key Points to Consider

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Country Cap Misconception.

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Conventional EB-5 wisdom is that the country cap is calculated within each preference category, not across all preference categories.  That would mean that no one country could have more than 7% of just EB-5 visas in any reserved visa category.

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This is wrong.

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In a US Federal Register announcement dated March 28, 2023, the US Government acknowledged they were calculating country caps incorrectly and outlined how country caps were to be calculated moving forward.

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Since April 2023, country caps are calculated based on the total number of visas available in ALL preference categories including family-based and employment-based. Immigrants from a particular county are not subject to a country cap until applications for ALL preference categories for that country reach 7%.

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Once both family-based and employment-based visa applications for a particular country reach 7%, the Department of State imposes backlogs for that particular country in each preference category based on priority dates across all categories.

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This Visa Bulletin shows China, India, Mexico, and the Philippines have all reached the 7% cap across the family-based and employment-based visas. Since Mexico and the Philippines are not big users of the EB-5 preference, China and India are currently the only countries subject to a country cap on EB-5 unreserved visas. Unless and until another country reaches the 7% quota across all preference categories, we should not expect there to be a backlog for those countries in EB-5.

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Cutoff Dates May Not Move Month-to-Month.

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The cutoff dates do not move in lockstep with the real-world calendar.  The last time the dates changed for China and India were:

1. In February 2024, the China cutoff date moved from December 8, 2015, to December 15, 2015, so it moved just one week over the course of that month, and the cutoff date has not moved since.  This means that there are enough approved EB-5 petitions from December 2015 or earlier to take up the current supply.
2. In January 2024, the China cutoff date moved from October 1, 2015, to December 8, 2015, and the India cutoff date moved from December 15, 2018, to December 1, 2020. These were big moves that reflected the US State Department’s analysis of how many green cards were available for the EB-5 category and how many applicants were ready to apply.

Visa Bulletin Considers only APRROVED Petitions.

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The Visa Bulletin dates are calculated by the Department of State based on information they have from USCIS about approved petitions. These charts do not show the impact of petitions that may have been filed before now, but are not, yet, approved.

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The Visa Bulletin is the end of the story.  To know how long a would-be immigrant might need to wait, it’s important to understand how many petitions might be in process ahead of them.

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Visa Bulletin is a Toll Plaza on a Highway.

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Think of the Visa Bulletin like a toll plaza on a highway.  It lists how long the line is at the toll booth and separates the line for specific countries that have a backlog. However, the Visa Bulletin does not show how many cars are on the highway on their way to the toll plaza.  Those are the pending petitions.  This information is generally not made public, but there have been efforts by EB-5 industry groups to get this information.  We will provide our analysis of this information separately. 

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Concurrent Filing Can Expedite the Process, but only for those in the United States.

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Concurrent filing is a mechanism where EB-5 investors already in the United States can send in some forms at the same time as their first Form I-526E application, instead of waiting until that application is approved. With concurrent filing, investors can fill out and send in both their Form I-485 (Application to Register Permanent Residence or Adjust Status) and their Form I-526E petition at the same time.  

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Generally, this will allow those investors to travel in and out of the United States without any other visa, and to legally work in the United States without any separate employment sponsorship or visa.  These investors may receive these benefits while their I-526E petition is pending, NO MATTER HOW MANY PETITIONS MAY HAVE BEEN FILED AHEAD OF THEM.  

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In our metaphor, this means that it does not matter how many cars are on the highway ahead of you.  As long as there is not, yet a line at the toll booth, you may apply for these benefits.  Essentially, if you’re here, you can stay here.

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Have questions about EB-5, contact Adam Greene, agreene@peachtreegroup.com.

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