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What Does the December 2021 Visa Bulletin Mean for New “Direct” EB-5 Investors?

The December 2021 Visa Bulletin states that the EB-5 direct visa categories have become “Current” for December 2021, including for nationals born in mainland-China or India or Vietnam. This means that “direct’ EB-5 investors with Form I-526 approvals at this time can immediately apply for an immigrant visa at a U.S. Consulate or Embassy or adjust status if in the United States and otherwise eligible. However, it is not technically correct to say that there is “no waiting line” for China-mainland direct EB-5, as we do not know what future Visa Bulletins will indicate when a direct I-526 case filed today is eventually approved. It remains to be seen whether this “current” status will hold, and for how long. Many experts believe this designation of China and India and Vietnam being current for direct cases will not last because its likely the regional center program will be re-authorized soon and then demand will pick up again resulting in massive retrogression for China, Vietnam and possibly India as well.

The Visa Bulletin specifically notes that when the EB-5 Regional Center program is reauthorized, there would be significantly more demand for EB-5 visas at that time (in particular for mainland-China): “If China-mainland born number use were to materialize at a level which could potentially jeopardize visa availability under the overall FY-2022 Employment-based Fifth preference annual limit, it would then be necessary to once again impose a final action date.”

Additionally, one of the biggest bottlenecks in the immigration process during COVID-19 has been the transfer of approved cases from USCIS to the National Visa Center and scheduling of immigrant visa interviews abroad. Fortunately, the State Department recently rescinded its Immigrant Visa Prioritization guidance at the end of last week, which should speed up the processing of EB-5 visas appointments abroad. Under the new policy, U.S. embassies and consulates have broad discretion to determine how to prioritize visa appointments among the range of visa classes as safely as possible, subject to local conditions and restrictions.

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