No India Retrogression for EB-5 Visas for Foreseeable Future

July 12th, 2020 Peter Bibler

India is current as of the July Visa Bulletin, signaling the end of retrogression for the foreseeable future.  

The threat of retrogression – or visa backlogs – for Indian EB-5 investors generated anxiety for much of 2018 and 2019. Many investors raced to file before deadlines to head off potential backlogs. Many hesitated, fearing that the EB-5 Program would have the same fate of endless backlogs of EB-2 and EB-3 visa programs, and decided to wait it out.   

Charlie Oppenheim, Visa Control Chief at the Department of State, first raised the specter of retrogression in his remarks on October 30, 2018, estimating that Indian EB-5 petitions then could expect to wait 5.7 years before obtaining a conditional green card. Compounded by expectations of policy change raising required investment minimums, many investors rushed to file. By May 6, 2019, Oppenheim raised his estimates to 8.4 years before finally settling on a 6.7 year wait of petitions filed by October 29, 2019. This estimate was based on 4,700 EB-5 applications pending with the National Visa Center (countries are limited to roughly 700 visas per year, including spouse and children). See Behring’s blog on What is Retrogression. 

Unused Visas, Increased Visa Availability, Decreased New Filings, and Processing Times 

Oppenheim spoke for an IIUSA webinar on the impact COVID-19 is having on the EB-5 Industry. During the pandemic US Consulates and Embassies closed and have slowly begun to reopen in limited capacities since June. Oppenheim expects that of the approximate 11,000 EB-5 visas available FY2020, around 6,500 will be wasted. But at least 60,000 family-based visas will be unused, and they will carry over to employment-based visa quotas for FY2021. Because the EB-5 category receives 7.1% of the employment-based visas available, EB-5 investors can expect at least 14,200 visas for next year’s allocation. This could drastically increase visa availability and provide needed backlog relief.  

Processing times remain a continual source of frustration for EB-5 investors, but they are improving. Recently, USCIS updated its processing times. For example, an average 29.5 months for I-526 petitions. But this is the median: half of EB-5 petitions are approved sooner. According to historical averages, USCIS estimates petitions filed in 2020 will be approved within 13 months. Some note that if USCIS catches up on pending I-526 petitions, perhaps Indian EB-5 investors will find themselves facing backlogs once again, but visa demand by increased number of approvals will be mitigated by increased visa availability. Moreover, USCIS now reviews EB-5 petitions according to visa availability, so Indian EB-5 investors may have their I-526 petitions reviewed ahead of those filed earlier than Vietnamese EB-5 investors still facing retrogression. 

Fewer petitions are being filed. Only 21 new EB-5 petitions were filed from January to March 2020. This is due to the increased minimum investment amount of $900,000 for TEA (and the scarcity of TEA-qualified projects under the newly implemented regulations).  

Backlogs Persist for Indians Seeking Green Cards Under EB-2 Visa Category 

According to the July Visa Bulletin, the new cut-off date for the EB-2 immigrant visa category for India is July 8, 2009 (a reduction of 3 weeks, 5 days from the month prior). The cut-off date has advanced by only 2.5 months in a year. In fact, according to an analysis by the Cato Institute last year, an Indian immigrant worker might wait up to 150 years before becoming eligible to obtain a green card through the EB-2 program. (For a complete analysis, see Cato’s updated report on growing backlogs.)  

Repeated attempts to remove visa country caps have all failed. No equitable solution has been presented. And thousands of immigrant families face increasing challenges and uncertainty, particularly in light of the Covid-19 pandemic. Meanwhile, the Trump administration, in its recent Executive Order, is requiring DHS to promulgate new regulations to ensure that EB-2, EB-3 and H-1B visas do not disadvantage US workers. We can expect future restrictive rule-making in the future. 

H-1B, J-1, H-2B, and H-4 Nonimmigrant Visa Categories Remain Target for Further Restrictions 

To make matters worse, H-1B nonimmigrant visa workers are being impacted by restrictive policies. Anti-immigrant measures targeting H-1B visa holders are being implemented, such as the recent ban disallowing holders of H1B, H4, L1, L2, and J1 nonimmigrant visas to enter the US through December 31, 2020. This is only the latest in repeated efforts to limit the ability to obtain the H1B visa, reduce its benefitsand to eliminate OPT 

EB-5 As a Permanent Solution 

The EB-5 Program remains a faster and more secure method of obtaining a green card for qualified families. The EB-5 visa is an investment based visa whereas immigrant investors can invest a minimum $1.8 million or $900,000 if located in a target employment area (see Behring’s current offering), create 10 jobs and the investor can achieve permanent residency or a green card for them and their family. Learn more.  

Behring has been helping hundreds of families on their road to securing a green card and their permanent U.S. resident status through EB-5 since 2013. Most of our investors seek a better alternative to the H-1B / EB-2 green card path so that they can obtain the security and freedom they need to start their own businesses and finish laying a solid foundation for their families’ future in the US. 

Learn More About EB-5  

To learn how EB-5 might work for you and your family, contact Behring for a free consultation. Behring welcomes you to visit our expansive library of EB-5 resources available for download as well as our FAQs and blogs to enable you to get the information you need to best prepare you for your EB-5 investment and green card journey. 

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