I-485 Approval Data Signals Retrogression for Rural EB-5 Category

Increased Demand Following January 2025 Visa Bulletin

According to the January 2025 Visa Bulletin, “the US Department of State and USCIS note increased I-526E petition approvals, and both agencies see increasing numbers of individuals processing their applications to completion in the EB-5 set aside categories.”

This is a statement that was expected, as the vast majority of post-RIA filings are petitions for investments in these set aside categories. As the Immigrant Investor Program Office transitions through the pre-RIA workload into the post-RIA inventory, approved petitions trigger demand for visas.

Although I-526E approvals are a step in the visa allocation process, it is unclear when the government will process enough set aside visas to actually impose dates on the Visa Bulletin.

Unreserved Visas and Dual Approval Codes

As we noted in our Approval Times webinar earlier this summer, the government can actually allocate Unreserved Visas to post-RIA investors, limiting allocation of set aside categories visas. This happens because each I-526E Petition Approval comes with two codes—one for the set aside category and one for the Unreserved category. You can read more about this function in our blog post from January 2024.

Differences in Set Aside and Unreserved Visas

It is important to note that set aside visas are characteristically different from Unreserved visas, which EB-5 loses on September 30th every year if they are unused. Set aside visas have a longer shelf-life within the EB-5 inventory; unused set aside visas are made available for use for one more year, and if unused for a second year, will roll over to the Unreserved category.

Record FY 2024 Allocations and Rural Usage

For this fundamental reason, while the service allocated a record number of visas in FY 2024, they were overwhelmingly used from the Unreserved category inventory. However, data from the first three quarters of the year reveals that, of the very small amount of set aside visas that were actually used, most of those were Rural, by almost a 3 to 1 ratio.

The Double-Edged Sword of Priority

This is the double-edged sword that comes with priority – a faster petition leads to faster green card demand, leading to imposition of a dates on the Visa Bulletin charts. When that happens, investors in that category are unable to get a green card until the dates improve, and at the same time project fundraising becomes a concern when the project’s core appeal of concurrent filing, EAD, and Age Protection is wiped away.

Protecting Investors From Final Action Dates

In some cases, EB-5 investors can lose their position in the capital stack if fundraising targets are not met. Behring’s RISE fund insulates investors from that very concern, knowing that Final Action Dates are a certainty in each of the set aside categories for filers from China, and possibly India.

Behring Regional Center has requested and received extensive information from USCIS, leveraging the Freedom of Information Act with the help of Kurzban, Kurzban, Tetzeli and Pratt. This data is the only published information which shows the allocation of green cards through Adjustment of Status in FY 2024 on a per-country basis.

Source: Behring FOIA, post-RIA I-485 Approvals (RH, RR and RU) sorted by China, India and Rest of World, for FY 2022, FY 2023 and FY 2024 (through August 1st 2024).

What This Data Means for Investors

RH = post-RIA set aside, High Unemployment.
RR = post-RIA set aside, Rural.
RU = post-RIA optional allocation from Unreserved inventory.

Investors from China and India who received Regional Center Unreserved Visas likely filed their I-526 petition before the Reform and Integrity Act (RIA), and then filed for Adjustment of Status based on Visa Bulletin Chart movement after the RIA which allowed for them to do so based on their Priority Date.  It is important to notw with any FOIA production that there could be human error in the recordkeeping process as well.

Rest of World Investors are automatically given Unreserved visa codes from USCIS regardless of their set aside category as this helps the government forestall the imposition of dates on the Visa Bulletin, and encourage new filings.  Dual code use will typically benefit High Unemployment Area investors more than Rural investors.

In time, when the Unreserved Chart Dates for India progress foward as pending demand subsides, the government can allocate those visas to post-RIA investors from India in either category.  This is the most likely scenario for today’s investors in either category, with reference made to actual policy and data.

Looking Ahead: Will More Set Aside Visas Trigger a Final Action Date?

These approvals are based on the previous fiscal year and reflect a very small percentage of success for EB-5 investors who moved ahead after the Reform and Integrity Act. Despite an increase in I-526E approvals, it appears unlikely that the service will actually allocate enough set aside visas to trigger a Final Action Date if they continue to focus on the earliest filings first.

This is a timing issue as note from the Deparment of State would have arrived sooner if the government actually allocated all of the set aside visas available for use, instead of prioritizing the use of expiring Unreserved visas.