Visa set asides are a new category of reserved visas under the EB-5 Immigrant Investor Program created by the United States Congress by virtue of the passage of the EB-5 Reform and Integrity Act (RIA) in March 2022. The RIA provides that of the visas made available for the EB-5 program in each fiscal year, 10% are reserved for applicants who invest in high unemployment areas, 20% are reserved for applicants who invest in rural areas, and 2% are reserved for applicants who invest in infrastructure projects.
High unemployment area
The Secretary of Homeland Security may designate a census tract, or contiguous census tracts, as a high unemployment area, in which the new commercial enterprise is principally doing business and the weighted average of the unemployment rate for the census tracts is not less than 150% of the national average unemployment rate.
A designation of high unemployment area by the Secretary of Homeland Security will be effective for a two-year period. A designation may be renewed for one or more additional two-year periods by the Secretary of Homeland Security.
A rural area is any area that is not located within a metropolitan statistical area as designated by the Director of the Office of Management and Budget or within the outer boundary of any city or town having a population of 20,000 or more.
The Secretary of Homeland Security will determine whether a specific capital investment project qualifies as an infrastructure project. An infrastructure project must be administered by a government entity.
If there are any unused visas in a reserved category at the end of a given fiscal year, the unused visas carry over to the immediately succeeding fiscal year.
Why is this important?
There are no backlogs for new investors filing EB-5 applications in the reserved categories. Therefore, new clients filing in one of these reserved categories will not be subject to retrogression. This is great news for investors born in mainland China and India.
According to the November 2022 Visa Bulletin published by the United States Department of State Bureau of Consular Affairs, all EB-5 visa set asides are now current. The final action dates for the unreserved category for mainland Chinese applicants is March 22, 2015 and November 8, 2019 for Indian nationals, meaning that both Chinese and Indian nationals are backlogged. However, the EB-5 application of a Chinese or Indian national investing in a project that qualifies for a visa set aside will be current. Therefore, a Chinese or Indian national applying today can benefit from much quicker processing times under the new visa set aside categories.
Previously filed EB-5 petitions are not subject to the new visa set aside categories and there is no mechanism to upgrade a previously filed petition to be eligible for one of these reserved categories. However, investors are not barred from withdrawing their previously filed petitions and investing in one of the new visa set aside categories and filing a new petition to take advantage of the reserved categories.
With over ten years of experience in the EB-5 industry, we are ready to assist you with your migration journey to the United States. If you are interested in finding out more about the EB-5 program, contact our team today for a free consultation.