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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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Author

Residency Invest Experts

Peter Mustafa is a property expert with over 45 years in the property industry helping investors in many parts of the world obtain investment visas such as EB 5 visas and Golden Visas. The process is complex at the best of times but with Residency Invest at the helm you can expect this to be far less stressful and complicated than with other experts.

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