The Immigration and Nationality Act of 1990, as amended, provides for an annual quota of 140,000 employment-based visas. However, the INA also provides for unused visas to be allocated in certain order towards the next fiscal year’s quota. On June 16, 2020, Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State, estimated that the “FY 2021 Employment limit [could be] at least 200,000 [as opposed to the regular 140,000].” This is because he “currently expect[s] that there will be a significant amount of unused FY 2020 family numbers …” after the shutdown of consulates due to the COVID-19 pandemic. Here are five things to know about this new development:
- EB-5 in General. While qualifying that things, “could always change between now and September, and impact that estimate,” this is good news for all the employment categories, especially the EB-5 employment category where the unavailability of visas, together with the increase in the maximum investment, has caused a slump in EB-5 filings.
- EB-5 China. Oppenheim also confirmed that the annual deduction of 700 EB-5 and 300 EB-3 visas as a result of the Chinese Student Protection Act will be completely satisfied in FY2020. Therefore, not only will China be subject to the normal 7% per-country limit in FY2021 (starting October 1, 2020), but it will also benefit from the higher Worldwide Employment annual limit. Mr. Oppenheim also noted there are several thousand Chinese cases are at National Visa Center (NVC) awaiting additional documents, making it difficult to move cases forward to final interview. These documents must be submitted to get interviewed when the U.S. Consulate in Guangzhou reopens.
- EB-5 India. The India Final Action Date is listed as “Current” in the July Visa Bulletin. This will allow Indian nationals with approved I-526 petitions to file adjustment of status applications if in the U.S. and eligible to file. This is critically important because more Indian EB-5 applicants are processed through adjustment of status, as opposed to consular processing, than other nationalities. Oppenheim mentions India has already used “well over 500 numbers, possibly 550 or more” for FY2020 out of 778 visas expected under the quota.
- EB-5 Vietnam. Oppenheim did not mention how many visas have been issued to Vietnam so far in FY2020. Presently Vietnam is the only other country with an EB-5 Final Action date. He said that the Visa Bulletin date for Vietnam would likely move “consistent with those of recent months through the end of the fiscal year” which means it will move relatively slowly, at least until October 2020, when the new quota becomes available.
- EB-1, EB-2, and EB-3. The EB-1, EB-2 and EB-3 visa categories would benefit most with an estimated 57,200 visas going to these three categories collectively. Each of these visa categories get 28.6% of the annual quota, so each category would likely get an additional 17,160 visas, approximately. EB-4 and EB-5 would each get 7.1% of the allocation of an additional 4,260 visas, approximately.