By Joey Barnett
The EB-5 Reform and Integrity Act of 2022 (“RIA”) created new EB-5 reserved visa set-aside categories which allow certain visa bearing nonimmigrants lawfully in the U.S. to concurrently file an adjustment of status application on Form I-485 with the Form I-526E, Immigrant Petition by Regional Center Investor.
The U.S. Citizenship and Immigration Service (“USCIS”) has also heeded Congress’ directive to prioritize the processing and adjudication of EB-5 petitions for investment projects located in rural area, and USCIS has approved several Forms I-526E in as quick as 3-4 months! Some adjudications on Forms I-526E for investments in a “High Unemployment Area” are taking “only” 12-14 months. This “last-in-first out” LIFO approach to processing post-RIA cases is frustrating to investors who filed petitions in 2019 (or in some cases 2018) before the Regional Center program lapsed in June 2021.
WR Immigration has filed hundreds of Forms I-526E and have already received dozens of approvals. Here are next steps for the immigrant investor and his/her family.
1. Form I-526E Approval Notice. The Form I-797C, Notice of Action indicates that the Form I-526E has been approved for one or more visa classifications and lists two visa categories – both reserved and unreserved, as indicated below.
For those investors outside of the United States, USCIS will then transfer the approved Form I-526E to the U.S. Department of State National Visa Center (“NVC”) for immigrant visa processing at a U.S. Consulate or Embassy. This transfer process is taking approximately 4-6 months, and in some cases significantly longer. For those in the United States, the USCIS will be able, if a visa is available under either of the approved categories [i.e. RU-1 Principal Regional Center Investor (unreserved) or RR-1 Rural Regional Cetner Investor (reserved)], to adjudicate the concurrently filed Form I-485 adjustment applications. The processing time for these adjustment applications varies significantly. On the positive side, USCIS has generally waived adjustment interviews for EB-5 investors unless there are potential inadmissibility issues, such as communist party membership or criminal issues.
2. AILA Updates from Department of State. In response to questions by AILA, the State Department replied:
Q: Can DOS describe the process by which applicants with EB-5 immigrant visa petitions approved with dual Reserved and Unreserved status will be asked to notify the National Visa Center under which processing status they wish to proceed?
A: IV applicants who USCIS has approved for more than one EB-5 visa classification, reserved or unreserved, will be contacted by NVC and required to select only one of the approved visa classes indicated on their I-797C approval notice and submit their choice using NVC’s online public inquiry form. EB-5 visa applicants will not be able to proceed with the visa application process until they have made a selection. NVC will not select an EB-5 visa class for an applicant.
Q: How will DOS apply a Form I-526E approval notice that lists both the Unreserved (RU-1) and Reserved (RR-1) visa categories when processing the case and when determining demand levels
A: EB-5 Applicants with Form I-526E approval notices will be required to select a visa category as indicated in the response directly above. This will allow us to establish demand levels and ensure demand levels are not artificially inflated.
How To Elect: Those outside of the U.S. will need to advise the NVC and choose either a reserved set-aside or unreserved visa category. It appears NVC will send a “Case Status Update,” asking investors to look at the approved Form I-526E receipt notice with the list of “approved programs,” or visa categories. Investors are requested to “choose the one you would like to be considered for” and to send a decision to NVC using the Public Inquiry Form at: https://nvc.state.gov/inquiry
Interestingly, the author’ s law firm has also received a standard fee bill for a post-RIA investor in a rural project, with the investor automatically assigned to the unreserved visa category, and there was no option to elect.
For those who receive the standard fee bill with an incorrectly assigned visa category, it is advised to contact NVC using the same process described above to choose the desired visa category.
3. To Opt-in or Opt-out, That is the Question?
NVC has not clarified what happens if an EB-5 investor elects to process under the reserved category but later needs to change to unreserved as USCIS processes more post-RIA Forms I-526E. This is particularly relevant to Vietnamese nationals who presently do not have a final action date for the either the reserved or unreserved categories but may have one later for reserved. Nationals from other moderately high demand countries such as Korea or Taiwan may also need to change their election. While DOS is clear that, in the context of automatic conversion in family immigration from F2B to F1, where a beneficiary can opt in and opt out by notice to NVC, DOS has not yet elaborated on whether it’s possible to opt out or change categories should the designated category become backlogged.
4. How Do Adjustment of Status Applicants Elect? It appears that USCIS has not yet implemented a process for applicants to make this reserved versus unreserved visa category election. We have heard anecdotally that USCIS has issued Form I-485 approval notices with both unreserved and reserved categories included, like the Form I-526E approval notice, so it is unclear which visa numbers are actually being used by DOS when allocating a visa number. It is now more than two years since the RIA was enacted, and USCIS and DOS are still trying to implement the new law. At least 3,500-4,000 RIA petitions have been filed, and hundreds approved, and yet neither DOS nor USCIS have published meaningful guidance on how to process these cases to conclusion.
5. Want to Learn More? Former DOS Chief of the Immigrant Visa Control and Reporting Division in the Office of Domestic Operations Charlie Oppenheim is now WR Immigration’s Director of Visa Consulting and heads the WR Government Relations Group. To learn about this topic from an expert in the field, make sure to register for our Chatting with Charlie EB-5 Outlook on April 3, 2024. https://www.linkedin.com/events/chattingwithcharlie-liveeb-5inv7168654921024614401/theater/
If you would like help with an EB-5 matter, please contact WR Immigration EB-5 Partner Joey Barnett – jbarnett@wolfsdorf.com for a consultation.
