What is Retrogression?
In an ideal world, your EB-5 visa application runs smoothly, and you know how soon you can expect your Green Card based on fulfilling all EB-5 requirements. Unfortunately, much depends on your priority date, which determines when you might receive your visa. If priority dates simply ran in a straight line, figuring out when you might receive your visa would also be straightforward – but that is not necessarily how it works. Priority dates are subject to change, based on circumstances beyond your control, and your visa application could retrogress or move backward. Lightstone can help you through this confusing situation and answer questions you have about the retrogression process.
If you consider applying for an EB-5 visa, you likely know that the U.S. Congress sets annual limits of 10,000 on the number of visas issued. Under the Immigration and Naturality Act, no individual country is permitted more than a specific percentage of all available annual visas. Should the number of EB-5 petitions from a particular country outstrip the supply, applicants must wait until a Green Card number becomes available. When demand outweighs supply, which it usually does, visa retrogression may occur.
Once these visa limits are exceeded, either for a country or a preference category, applicants are placed on a waiting list based on their case filing date. This case filing date becomes their priority date, a vital factor in the immigration process.
The EB-5 Visa
The EB-5 visa allows the investor, their spouse and unmarried children under the age of 21 to receive a Green Card after making an at-risk investment in a U.S. commercial enterprise. This enterprise must create at least 10 full-time, permanent jobs in a two-year period. As of November 21, 2019, the minimum investment in such a commercial enterprise is at least $900,000, up from $500,000 for applications received before the November date.
EB-5 visa investors and their spouses may live and work anywhere in the U.S., and their minor children may attend school anywhere in the U.S.
The overwhelming majority of EB-5 investors place their funds, pooling with other investors, in Regional Center projects. After deciding on the Regional Center project and putting the necessary funds into an escrow account, the next step is filing Form I-526, “Immigrant Petition by Alien Entrepreneur,” with the U.S. Citizenship and Immigration Services (USCIS). Approval of the I-526 may take between one and three years.
The Monthly Visa Bulletin
How do you learn about when your Green Card application might move forward? While your immigration attorney will inform you of your current status, you can also check the monthly visa bulletin. This bulletin lets you estimate how long it will take to receive your Green Card, based on where you are “in line.”
Each month, the USCIS, in coordination with the U.S. Department of State (DOS) publishes its visa bulletin on the DOS, Bureau of Consular Affairs website. The DOS determines the cut-off dates based on the number of visas used at that point in the year and the anticipated demand for visas. Another major factor is the number of visas remaining in the annual limit for either the preference category or the country. If you are a foreign national from a country in which EB-5 visas are not in high demand, your wait time is likely much less.
According to the USCIS, the Visa Bulletin’s cut-off dates generally move forward in time, but there are exceptions. As per the USCIS, “Demand for visa numbers by applicants with a variety of priority dates can fluctuate from one month to another, with an inevitable impact on cut-off dates. Such fluctuations can cause cut-off date movement to slow, stop, or even retrogress.” The result is the cut-off dates either slow, stop, or retrogress.
When there are more people applying for a visa from a particular country or in a certain visa category than there are visas available that month, visa retrogression occurs. Most often, retrogression happens near the end of the fiscal year in late September. During that period, it is common for visa issuances to approach either the per-country limits, or the annual number of visas permitted, or both.
The good news is that, as of October 1, when the new fiscal year starts, new visas become available. In most cases, this returns them to the pre-retrogression dates, but this does not always prove true.
One of the worst-case scenarios involving visa retrogression occurs when minor children “age out,” reaching the age of 21 and thus no longer eligible to receive a Green Card based on a parent’s application. Under these circumstances, the now-adult child must apply for an EB-5 visa on his or her own, with the requisite investment.
How is Retrogression Processed?
As an example, with the publication of the July 2019 Visa Bulletin, it turns out that Indian nationals are subject to visa retrogression earlier than predicted.
According to the National Law Review, as of July 1, 2019, only approved Indian EB-5 investors whose EB-5 petitions were filed prior to May 1, 2017, may proceed with immigrant visa application processing. The July Visa Bulletin also anticipates that EB-5 applicants from Vietnam and India will have the same dates as China for August and September 2019, meaning all three countries have filing dates falling back to November 1, 2014. When the fiscal year starts on October 1, the best-case scenario for Indian nationals is a priority date in the fall of 2017, keeping in mind it is entirely possible the priority dates will not move beyond the summer of 2017.
However, for Indian nationals who filed their I-526 petitions after May 6, 2019, the wait time for the availability of an EB-5 visa may take more than eight years.
When Your Priority Date Becomes Current
When the priority date does not meet the cut-off date because of retrogression, the application is held until a visa is available. If your Form I-485 adjudication does not require an in-person interview at a USCIS office, your case is then held at the USCIS Service Center where your application was originally filed.
If you have already gone through the USCIS office interview and a visa is unavailable, the USCIS may hold your case at a different location. Because the EB-5 visa is an employment-based visa, a visa retrogression case is held at the Texas Service Center.
When your priority date becomes current as per the Visa Bulletin, the USCIS finishes the processing of your visa-retrogressed case. Because the USCIS often requires updated information from the applicant, it is essential to ensure your address is kept up to date with the USCIS.
How Lightstone Can Help
We can help you receive an EB-5 visa and permanent resident status for yourself, your spouse, and minor, unmarried children. As one of the largest privately-held real estate companies in the country, Lightstone has more than $6 billion in assets under management and development. If you would like more information about the EB-5 visa cost and how Lightstone can help, please fill out our contact form.