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Updates on EB-5 Waiting List for China and India

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Washington, D.C., September 8, 2022: The Department of State issued the October 2022 Visa Bulletin and it includes important updates for Chinese-born and Indian-born EB-5 petitioners.

The Visa Bulletin is the monthly report that determines whether there is a waiting list for U.S. permanent residence visas (“Green Cards”).

1) List A and List B Remain Current for New Rural, High Unemployment and Infrastructure Investments.

The October 2022 Visa Bulletin confirms that new EB-5 visa petitions filed in connection with investments located in Rural Areas, High Unemployment Areas (TEA) and Infrastructure Projects remains current and is not subject to a visa waiting list for any country.

This news is very helpful for new investors who are now starting to take advantage of investment opportunities under the updated EB-5 Regional Center Program. It means that new investors can obtain the benefit of avoiding a waiting list and pursuing simultaneous filing of the EB-5 petition on Form I-526E with I-485 Adjustment of Status.

2) EB-5 China.

The October 2022 Visa Bulletin indicates that the List A Final Action Date for EB-5 China moved backward or “retrogressed” from December 22, 2015 back to March 22, 2015.

The List A cut-off date of March 22, 2015 means that any EB-5 visa petitions filed by investors born in China on or after March 22, 2015, are not ripe for proceeding to a U.S. visa appointment at a Consulate.

The List B Dates For Filing cut-off date for China in the EB-5 were again set at January 1, 2016 (no change). USCIS has not yet announced whether it will allow List B filings for Adjustment of Status for persons lawfully in the United States.

3) EB-5 India

The October 2022 Visa Bulletin announces a visa waiting list for Indian-born petitioners dating back to November 8, 2019 for List A (Final Action Dates) and December 8, 2019 for List B (Dates for Filing).

The List A cut-off date of November 8, 2019 means that any EB-5 visa petitions filed by investors born in India on or after November 8, 2019, are not ripe for proceeding to a U.S. visa appointment at a Consulate.

The List B cut-off date for India in the EB-5 category were set at December 8, 2019. USCIS has not yet announced whether it will allow List B filings for Adjustment of Status for persons lawfully in the United States.

4) Analysis

(a) Can EB-5 Investors File I-485 Adjustment of Status Before September 30, 2022

Yes. It is critical to keep in mind that the September 2022 Visa Bulletin remains in effect until September 30, 2022 – and the September 2022 Visa Bulletin did not include a cut-off date for any EB-5 category except for unreserved EB-5 China.

Therefore, persons remain eligible to file I-485 Adjustment of Status under the September 2022 Visa Bulletin for I-526 visa petitions all countries except China (which has a List A cut-off date of December 22, 2015 and List B cut-off date of January 1, 2016).

(b) How will the EB-5 Cut-off Date Impact Consular Processing

The U.S. Department of State will follow the cut-off dates announced in the October 2022 Visa Bulletin. Thus, U.S. Consulates will not be able to grant visa appointments for approved I-526 visa petitions with priority date/filing date prior to the cut-off dates in the October 2022 Visa Bulletin.

(c) What Caused the Changes to the October Visa Bulletin?

The occurrence of updated cut-off dates for China and India is not surprising. Many EB-5 investors from China and India are residing in the United States on H-1B or F-1 visa status. Those investors rapidly moved to file I-485 Adjustment of Status after the EB-5 Reform and Integrity Act of 2022 opened the door to simultaneous filing of Adjustment of Status for pending or approved I-526 visa petitions filed before March 15, 2022.

Donoso & Partners filed dozens of I-485 Adjustment of Status applications for EB-5 clients since March 15, 2022. We can confirm that some of those clients whose I-526 petitions were already approved at the time of filing already obtained Conditional Permanent Resident status during August 2022.

Additionally, many EB-5 investors from China have finally be able to complete Consulate appointments for EB-5 Green Cards in Hong Kong or Guangzhou.

The large use of existing visas meant that eventually USCIS and the U.S. Department of State determined that revised cut-off dates for List A and List B were required to slow down the number of applications.

This is the first time since the EB-5 Regional Center Program was re-started on March 15, 2022 (and the first time since the June 2020 Visa Bulletin) that an India waiting list was declared for the EB-5 category.

(d) What Does the Cut-off Date Mean Going Forward?

The waiting list for EB-5 China and India only applies to two groups of EB-5 I-526 visa petitions: (1) I-526 visa petitions filed before the EB-5 Reform and Integrity Act of 2022, which became law on March 15, 2022, and (2) going forward, it only applies to new I-526E visa petitions filed by Chinese-born or Indian-born investors who do not invest in a Rural Area, High Unemployment Area or Infrastructure Project.

That means that EB-5 investors from China or India who file new I-526E visa petitions based on projects located in Rural, High Unemployment or Infrastructure projects remain eligible to apply for an EB-5 Green Card without a visa waiting list.

Donoso & Partners expects the current India EB-5 cut-off list to remain in place for most of the 2022-2023 fiscal year.

Donoso & Partners also expects increased interest in taking advantage of the current EB-5 landscape which offers no waiting lists for EB-5 visa applicants from China or India so long as they invest in a Rural Area, High Unemployment Area or Infrastructure Project.

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