By Partner Joseph “Joey” Barnett
The overall outlook for EB-5 visas in FY 2024 is stronger than the smell of turkey coming from the oven. Why? Because the supply of EB-5 visa numbers is larger than ever before. However, immigrant investors need USCIS to finalize Form I-526Es quickly (and to approve AOS or transfer cases to NVC quickly) and so that this large supply can be taken advantage of before September 30, 2024, and to reduce visa wait times in the future as the supply diminishes with decreased worldwide levels in the coming years. The chart below depicts visa availability and use from FY 2022 to FY 2024.
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Here are five things to know about EB-5 visas in FY 2024.
1. Carryover Visas:
The reserved visas from FY 2022 weren’t used in FY 2022 or FY 2023 and are now part of unreserved FY 2024. The reserved visas from FY 2023 weren’t used in FY 2023 either and now carry over to reserved FY 2024. This leads to over 22,300 EB-5 visas available for use in FY 2024, including 14,169 in the unreserved visa category, which could make a serious dent in the EB-5 visa backlog for Chinese nationals, as long as the U.S. Consulate in Guangzhou has sufficient capacity to issue the immigrant visas. If the 6,396 FY 2022 reserved visas are not used in FY 2024, they will be lost to EB-5 forever. The same goes for the 7,773 unreserved from FY 2024. It’s time for IPO, USCIS, and consular officers to unbuckle that top button and feast on I-52E, I-485, and immigrant visa processing before the fiscal year is up.
2. Reserved Visa Categories Likely to Remain “Current” in Visa Bulletin for FY 2024:
There are over 8,100 visas available in the reserved category in FY 2024, and it’s unlikely sufficient demand will be created to exceed this supply, so the reserved visa categories will remain “current” in the visa bulletin for the foreseeable future. We anticipate that some of these reserved visa numbers will begin to be used in FY 2024 as USCIS continues to fast-track post-RIA Form I-526E adjudications and cases are finalized for visa number use, whether through adjustment of status or immigrant visa processing abroad, but not many, and most of the 4,478 numbers will carryover to unreserved in FY 2025. The 3,658 FY 2024 reserved visas will likely not be used at all and will therefore carryover to reserved in FY 2025. In the meantime, the large supply appears to be sufficient to meet any such demand, providing great opportunities for those in the U.S. who are eligible to file adjustment of status applications.
3. Form I-526E Data from USCIS:
Our firm was provided data obtained by American Immigrant Investor Alliance related to Form I-526E filings from enactment of the RIA to April of 2024, based on country of chargeability and investment category, which provides the following information:
- Approximately 44% of all Form I-526Es were filed by Chinese nationals
- Approximately 16% of all Form I-526Es were filed by Indian nationals
- Approximately 25% of Form I-526Es filed by Chinese nationals were in rural projects
- Approximately 36% of Form I-526Es filed by Indian nationals were in rural projects
- Approximately 75% of Form I-526Es filed by Rest of World (not China, India, or Vietnam) were in high unemployment projects
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4. Dual Visa Category Approvals?:
Recent Form I-526E approval notices for investments in reserved visa categories interestingly list both the reserved and unreserved visa categories. The notices state: “If you are eligible for more than one visa classification, you will be required to identify the visa classification on which you will seek to adjust” or “you will be required to identify which visa classification you will seek to obtain before proceeding with immigrant visa processing.” This could allow “rest of world” immigrant investors in reserved visa categories to use unreserved visa numbers, thereby increasing the supply of reserved visas for Chinese and Indian nationals and others who could be subject to a per-country limitation due to high demand. We will be keeping an active eye on this development, just as we do with the gravy on the stove.
5. Visa Number Use Through Adjustment of Status:
Many EB-5 investors in the United States on H-1B, F-1, or other nonimmigrant visa categories are taking advantage of the concurrent adjustment of status filing possibility and INA 245(k) protection, and we anticipate a larger percentage of visa numbers to be used through USCIS adjudications. USCIS will only use an EB-5 visa number once it approves an immigrant investor’s adjustment application, but it must approve the underlying basis petition – the Form I-526E – first, and USCIS will only approve the Form I-526E after the EB-5 investor’s project’s Form I-956F has been approved. It is therefore critical, like whipped cream on top of pumpkin pie, for IPO to expedite adjudications of Forms I-956F.
For more information about EB-5 Visas, please contact Attorney Barnett at email@example.com