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【ARCFE Blog】 NEW EB-5 VISA ALLOCATION PROCESS: WILL IT SOLVE THE BACKLOG ISSUE?

Updated: 3 days ago

Recently, the National Visa Center (NVC) processed for the first batch of I-526E investors after the new policy has been initiated. For these applicants outside the U.S., in the past, the NVC would determine the visa category to be issued. However, now the approval letter for the I-526E investors actually lists two categories simultaneously. Let's take the approval letter of an investor in the ARCFE new policy project as an example:



Among them, RU-6 represents the visa category for the regional center category within the unreserved visa category, while RH-6 represents the visa category for the regional center category of projects in high-unemployment areas (also referred to as HUA or urban) within the reserved visa category.

Why is there a line indicating non-reserved on the approval letter when the project applied for is clearly in the urban high-unemployment area program under the new policy? We can find the answer in the minutes of the latest liaison meeting between the American Immigration Lawyers Association (AILA) and the Department of State (DOS).


The following Q&A are excerpts from AILA's Q&A with the DOS (*):


AILA - Question: Can DOS describe the process by which applicants with EB-5 immigrant visa petitions approved with dual Reserved and Unreserved status will be asked to notify the NVC under which processing status they wish to proceed?


DOS - Answer: Beginning March 21, 2024, Immigrant Visa (IV) applicants who U.S. Citizenship & Immigration Services (USCIS) has approved for more than one EB-5 visa classification, reserved or unreserved, will be contacted by NVC and required to select only one of the approved visa classes indicated on their I-797C approval notice and submit their choice using NVC's online public inquiry form. EB-5 visa applicants will not be scheduled for an interview until they have made a selection. NVC will not select an EB-5 visa class for an applicant. Applicants will be contacted to identify their choice at the Welcome Letter stage.


AILA - Question: How will DOS apply a Form I-526E approval notice that lists both the Unreserved (RU-1) and Reserved (RR-1) visa categories when processing the case and when determining demand levels?


DOS - Answer: EB-5 Applicants with Form I-526E approval notices will be required to select a visa category as indicated in the response directly above. This will allow us to establish demand levels and ensure demand levels are not artificially inflated.


(*) AILA DOS Liaison Committee Liaison meeting with the Department of State - March 20, 2024


In other words, investors under the new policy (EB-5 Reform & Integrity Act of 2022 or EB-5 RIA 2022), upon approval of their I-526E, have the right to switch to applying for unreserved visas to obtain their green cards. Considering that currently only investors from Mainland China and India are subject to visa backlog under the unreserved EB-5 category, investors from other countries do not need to rely solely in the reserved visa categories. They do not have to wait for the 32% reserved visa quota to be exhausted. Instead, they can directly apply through the unreserved visa category, which has a larger total quota!

According to the latest official data, as of the end of October 2023, around 1,000 EB-5 applicants from countries other than India and Mainland China had submitted their applications. Assuming an 80% approval rate and 3 green card demands per application, it is estimated that these applicants would require approximately 2,400 visa quotas.


Under the EB-5 RIA 2022, the unused numbers in each reserved category (total reserved - 32%) roll over into the same category the next year. After the second year, if there are unused visa numbers, they go into the general pool (unreserved - 68%).

Applicants from the other countries that are not facing or prone to backlog like Mainland China or India might have a stronger incentive to directly choose the general pool (unreserved - 68%) because the number of visa available is higher. Assuming this scenario is true, the amount of reserved visa remain unused for "other countries" would be quite large. If these visas are then rollover to the next year, the visa allocation quotas available would increase (# visa available for the FY + # unused visa rollover), which means higher number of visa available for Mainland China and India reserved categories. This could delay or minimize the backlog problem looming over the reserved categories for Mainland China and India.

Although the NVC visa channel selection process has been exposed, the DOS has not yet clearly outlined how applicants adjusting status in the U.S. (filing Form I-485) should choose their category. However, there are reasons to believe that similar allocation processes have been under discussion.

For EB-5 applicants born in India and Mainland China, it is crucial to stay tuned to high-quality information sources, stay updated on the latest policy trends and operational changes, and promptly update their knowledge of priority date. Simultaneously, selecting suitable investment projects and managing funds securely is even more necessary, feasible, and important.

Regarding priority dates, they are subject to dynamic changes influenced by various factors such as visa quotas, application volumes, and processing times. It is believed that the exposure of this allocation process will further refine everyone's expectations for future EB-5 priority dates and introduce additional variables and uncertainties to the various predictions previously available.


ARCFE Investors and Projects Continue Receiving Approvals


Under the EB-5 RIA 2022, ARCFE investors and projects have achieved many successes. Our investors are continuing to receive I-526E approvals from USCIS, with the fastest case being within less than 1 month from the project's I-956F approval.

ARCFE post-RIA HUA projects, such as Group 12 Jackson, Group 13 38th Ave/Thomson, Group 14 Davis/Union and Group 15 Dutch Kills have been approved by the USCIS. Specifically for Group 15 I-956F approval came within only 7 months of filing, showing that processing time for an HUA project is not that much different from a rural project.



HUA Project Group 19 With Similar Structure As Group 15

Opens For Investment


Group 19 Brooklyn Gowanus is a residential development project located in the emerging and vibrant Gowanus neighborhood of Brooklyn (New York City). With a total construction area of 135,000 sqft, this 14-story mixed-use building will have 130 rental units, along with ~9,000 sqft of ground-floor retail space and ~6,000 sqft of art space. Group 19 qualified for high-unemployment area TEA and meet requirements for 10% reserved visa category. The construction for this project has started and is progressing on time and on budget.

The EB-5 capital in Group 19 will go into the project in the form of a senior loan secured with mortgage, offering the highest safety measure for investors. The project is expected to create sufficient jobs for all investors and is looking to repay within 3.5 years. We also offer flexible investment plans that would allow investors to file their petition after an initial investment of $200,000 (+fees) and be fully funded within 1 year.




Disclaimer: This article presents analyses and opinions based on available information and should not be construed as legal advice. Investors are encouraged to seek guidance from a qualified attorney regarding legal matters pertaining to their immigration process.

 

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