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Demystifying the Complicated October 2022 Visa Bulletin - What Does it Mean for EB-5 Investors?

The U.S. Department of State (“DOS”) recently released the October 2022 Visa Bulletin, and it showed two new developments for EB-5 investors: (1) priority date retrogression of the 5th Unreserved Final Action Date (“FAD”) for China-mainland born from December 22, 2015 to March 22, 2015, and (2) creation of a 5th Unreserved FAD for India of November 8, 2019. The FAD has remained current for all other countries in the EB-5 Unreserved categories, and for all countries in the EB-5 “Set-Aside” categories.

USCIS also announced that it will accept employment-based adjustment of status applications with priority dates that are earlier than the Dates for Filing (“DFF") listed in the Department of State’s October Visa Bulletin. The 5th Unreserved DFF is January 1, 2016 for China-mainland born and is December 8, 2019 for India.

For Indian nationals in the United States, this will not prevent many from applying for adjustment of status because nearly all Form I-526s were filed before the now-vacated EB-5 Immigrant Investor Program Modernization regulations that became effective date on November 21, 2019.

For China-mainland EB-5 investors abroad, however, the large retrogression is surprising, especially given the amount of visa numbers available in FYs 2021 and 2022 that have gone unused by EB-5 investors, as it means that the U.S. Consulate in Guangzhou will not issue visas to those who had not filed Form I-526s before March 22, 2015. This occurred because DOS determined the previous date (December 22, 2015) would have allowed more applicants be eligible for interview than visa numbers authorized for 5th Unreserved FAD for China-mainland, which has been impacted by (a) the lower FY 2023 employment limit of approximately 200,000 from FY 2022’s 281,507, and (b) a 32% reduction of the number of visas made available to EB-5 investors who filed before the 2022 EB-5 Reform and Integrity Act (“RIA”) was enacted due to the “Reserved Visa” provisions. For a detailed analysis on the impacts of these provisions, review the blog featured by Invest in the USA.

Further, it is unlikely that DOS will advance the 5th Unreserved FAD for China-mainland in the foreseeable future unless DOS determines it can start using the otherwise unused Rest of World (“ROW”) numbers, which would occur in the second half of the fiscal year after determining ROW demand.

*Special thanks to WR Immigration Partner and AILA member Joseph Barnett for his assistance in drafting this update.

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