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Carolyn Lee, Esq.*
The January 2025 Visa Bulletin contained critically important yet tentative news:
What does this mean? Let’s unpack this, sentence by sentence.
Increased I-526E Approvals and Completed Applications
“The 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 opening sentence points to the fundamental link between I-526E petition approvals and visa numbers demand. When we speak of an “invisible visa backlog,” we are talking about the number of I-526E petitions in the USCIS inventory that will eventually need an EB-5 visa. When I talk about visa “demand,” I mean the moment when an immigrant visa petition, in our case the I-526E petition, is approved and is therefore ready for an immigrant visa for the principal and qualifying dependents.
When an I-526E petition is approved, we look to see whether there is “visa availability” to meet that demand immediately. If the Visa Bulletin reports the relevant category as “current” with a capital “C,” then there is visa availability, and the demand can be satisfied after the application is determined to meet documentary and background eligibility qualifications. U.S. State Department issues an EB-5 visa, pulling down a visa number from the pool of EB-5 visas allocated annually to the EB-5 category and to the set-aside categories (rural, high unemployment, and infrastructure) in priority date order.
On the other hand, if there is no visa availability because demand exceeds visa supply, a date appears on the Visa Bulletin in the relevant category called a “cut off date.” The cut off date in Chart A of the Visa Bulletin is called “Final Action Date,” and the cut off date in Chart B is called “Dates for Filing.” (For Visa Bulletin vocabulary, scroll to the bottom of this article; also covered in this CLP article.)
The cut off date expresses the priority date of the first immigrant visa petition that could not be issued a visa within numerical limits. In that case, even though the immigrant visa petition has been approved, the demand cannot be satisfied immediately because there is no visa availability – or in other words, there is a visa backlog.
Today, all the set-aside categories are current. See the excerpt below from the January 2025 Visa Bulletin (Chart A):
There are three important effects of the EB-5 set-aside categories being “current.”
First, if an I-526 or I-526E petition is approved in any of the “current” categories, the associated adjustment of status (“AOS”) application or immigrant visa application (“IV application”) may proceed toward final action, resulting in admission in Conditional Permanent Residency. This means the two-year conditional period can start ticking, immediately upon approval in the AOS context, and upon landing in the U.S. under an immigrant visa granted following in interview in the IV application context.
Second, an AOS I-485 application may be concurrently filed with the I-526 or I-526E for new filings. An AOS filing allows the EB-5 investor to apply at the same time for work and travel interim benefits and be issued an Employment Authorization Document (“EAD”) and an Advance Parole (“AP”) travel document. These benefits are currently granted for a generous initial term of 5 years. The benefits also may be renewed as long as the AOS is pending.
Third, an AOS filing constitutes “freezing” or “locking in” a dependent child’s age. If the dependent child’s age is under 21 after making the calculations under the Child Status Protection Act (“CSPA”), the concurrent AOS filing will constitute taking the step of “freezing” the CSPA age within the one year of visa availability. I call this advance “freezing” of the age, “pre-freeze.” Note that this doesn’t mean that the child’s age is automatically frozen. The CSPA calculation must first be undertaken at visa availability first to determine the CSPA age. The AOS filing freezes the age; but if the CSPA age is over 21, the ”pre-freeze” does not help.
The first sentence of the Visa Bulletin quote is telling us that there has been a rising number of I-526E petition approvals and (although this part is ambiguous) that the investors’ AOS and IV applications are progressing to approvals as well, leading to increased EB-5 visa demand.
The set-aside categories being current, the visa demand can be immediately satisfied against the set-aside visa numbers for now. In FY 2025, the set-aside visa limit is approximately 6,839 according to the U.S. State Department. Note that this set-aside total for FY 2025 is over double the normal year’s limit of 3,192.
Cut Off Dates in FY 2025
This gets us to the second sentence: “It may become necessary to establish Dates for Filing and Final Action Dates during the fiscal year to ensure that issuances in these categories do not exceed annual limits.”
Even though the set-aside categories are at the moment still “current,” the U.S. State Department is telling us that sometime this fiscal year (FY 2025 ending September 30, 2025), that this may change. The effects are the reverse of the three positive effects above of the priority dates being current. In short, once we have cut off dates established in the set-asides:
Effect 1: Investors cannot progress in their AOS and IV applications, even if the I-526E has been approved. This means that their conditional residency start dates will be delayed.
Effect 2: Investors may not concurrently file their AOS. This means that even if an investor is lawfully in the U.S. and would otherwise be eligible to file AOS, they could not until their priority date became current. They would need to rely solely on their current visa status to remain in the U.S., or work and travel if their current visa status so permits (for example, H-1, L-1, or E-2).
Effect 3: Children will continue to age until there is visa availability – meaning until the investor’s priority date becomes current.
“What Should I Do With This News?”
This news is information. As with all items of information, particularly in our data-rich times, the task is to evaluate its content and credibility as a primary source.
The purpose of this article was to address the content – that is, analyze what it says and means.
In terms of credibility, it is high as the news is coming from the sole source that counts demand and allocates visas – the U.S. State Department.
However, it is important to note how indefinite the language is. As this article makes clear, the key fact driving critical effects is publication of cut off dates. But the January 2025 Visa Bulletin merely says it: “may become necessary”. It does not say that will become necessary and certainly not when.
Here, I quote IIUSA’s report summarizing insights provided in May 2024 by Dr. Michael Hanley, a Data Scientist from the U.S. Department of State:
Although USCIS is accelerating its productivity in adjudicating Set-Aside I-526/E cases, given that, on average, it takes 5-8 months between case creation at NVC and visa issuance (see Figure 2 here), it’s expected that no cut-off dates will be required for any Set-Aside categories at least in the first half of FY2025. Whether a FAD is required in the later part of FY2025 will depend on:
- How quickly USCIS adjudicates Set-Aside I-526/E cases and how many of those Set-Aside cases will be approved;
- How promptly applicants submit all required documents and schedule visa interviews when they reach the visa processing stage;
- Which visa category applicants choose for visa processing if they are approved for multiple categories.
Note that in May 2024, the U.S. State Department held the view that set-aside backlogs were unlikely in FY 2025. Note E in the January 2025 Visa Bulletin modifying this view means that the pace of I-526E approvals and subsequent AOS and IV applications progressing to documentary qualification and interview turned out to be higher than anticipated in the spring of 2024.
What we don’t know is whether this pace will continue in the coming months. If it does, we may see cut off dates.
“What Should I Really Do?”
Let’s take stock of what we know and what don’t.
- We know that the U.S. State Department is projecting the possible need to establish cut off dates before September 30, 2024. This is significant as it is the only authority with all the available data.
- We don’t know when the cut off dates will be published.
- We know that the priority dates are current now.
Taking all this together, the message is be prepared.
For investors. For prospective investors who are in the United States and wish to concurrently file I-485 with I-526E, the visa bulletin notice is a signal to not delay.
This particularly applies to investors born in China or India, who will be affected first by cut-off dates due to per-country limits on those countries. Thoroughly but as quickly as you can, complete your diligence and decision-making. If the ultimate decision is to move forward, no time can be wasted to prepare and file the I-526/E petition.
Filing I-526E before cut-off dates are established for your country and TEA category does not allow you to avoid backlogs or visa delay, but it does allow taking advantage of concurrent filing benefits. When the visa bulletin signals likely cut-off dates for applicants already in process, that means inevitable cut-off dates for new investors coming up behind in the same country and category.
Consider the partial investment route and discuss with your regional center and advisors whether partial investments are a viable strategy with a concrete plan and timing for funding the full investment.
For regional centers. For regional centers, well-structured optionality and speed of execution will be key. Can you accommodate partial investments? Have you taken steps to ensure compliance with all applicable laws, including of course all U.S. immigration laws? Are you properly disclosing to investors the fact of excess demand in set-aside categories?
Communications strategy is also key. These times bring many questions. Having communications channels and methods of delivery are and will be even more so important in FY 2025 and beyond as we look ahead to regional center program reauthorization.
We at CLP are ready to help our investor and regional center clients thoughtfully navigate this important news.
***
Visa Bulletin Vocabulary
“Current” or “C” – when a category is denoted “Current” or “C” on the Visa Bulletin, it means that there is visa availability in the reporting month for that category.
“Final Action Date” – the “final action date” (FAD) reported on the Visa Bulletin indicates that a case in that category whose priority date is earlier than the final action date is authorized for visa issuance. Practically speaking, it means that a qualified case whose priority date is earlier than the published date can be issued an EB-5 visa. “Immediate visa availability” is another term used to denote that the priority date is current or is earlier than the final action date. The “final action date” was previously called the “cut off date,” and is still so referred today.
“Dates for Filing Visa Applications” – the “dates for filing” (DFF), also referenced by some as “Chart B” on the Visa Bulletin indicate when applicants may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions
If USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, it will allow using the Dates for Filing chart. Otherwise, Final Action Dates chart determines when an EB-5 investor may file adjustment of status applications.
“Priority Date” – the priority date is the filing date on the immigrant visa petition – in our context, the Form I-526/E. It is reflected in the I-526/E receipt as well as approval notices.
CLP EB-5 Visa Numbers Resources
Overview of U.S. Visa System and EB-5 Visa Backlog Reduction Solutions
EB-5 Visa Numbers State of Play: Looking Ahead to FY 2025
Material Change and the Visa Backlog
Industry EB-5 Visa Numbers Resources
American Immigrant Investor Alliance (AIIA)
* Carolyn Lee, Esq. is the Principal Attorney at Carolyn Lee PLLC, a U.S. investment immigration law firm. Copyright and all other rights reserved. Content may not be reproduced in any form without prior consent of Ms. Lee.
