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The EB-5 Visa Availability Approach Model

The United States Citizenship and Immigration Services (“USCIS”) regulates the application process of the EB-5 Immigrant visa program. The program, created by congress, provides for prospective investors to invest $900,000 into a U.S. approved EB-5 commercial enterprise. The capital investment acts as an economic stimulus for the U.S. economy and further provides a boost to the employment market through the requirement of the investment to generate 10 permanent jobs for U.S. citizens. For the EB-5 potential investors through their investment they obtain a U.S. green card and residency for themselves and their immediate family members. The USCIS has started issuing visas based on the visa availability approach to prioritizing the immigrant petition applications.

The visa availability approach prioritizing the adjudication of the I-526 petition allows for USCIS to first process petitions for investors for whom a visa is now or will soon be available.This will work in conjunction with the Department of State Monthly Visa Bulletin which indicates visa availability for each country to determine which visa will be available. Previously, USCIS used the First-in First-out (“FIFO”) approach to approve I-526 approvals. This meant that petitioners who had received their I-526 approval had additional wait times imposed for receival of their visa as their country had reached or exceeded their allocated visa quota.

The updated change in the adjudication of the 1-526 petition was implemented on March 31, 2020. USCIS has stated that the change in prioritization aims to align the EB-5 processing with other USCIS operation programs that involve numerical caps for visa availability, such as preference category family visa petitions. It will further increase fairness in the administration of the EB-5 immigrant investor program.

Evidently, this is a big change in the EB-5 industry and since its inception has led to what is called retrogression for Indian nationals. Albeit not a direct result from the new visa availability approach however, since USCIS has caught up with the backlogged applications for Indian nationals and updated their country status as ‘current’. The visa availability approach will mean that all Indian nationals applying to be part of the EB-5 program have no additional wait times. They will be able to obtain their visa as soon as their I-526 approval is granted.

The I-526 petition is the application formed that is filed by an experienced EB-5 specialist on behalf of the EB-5 investor to USCIS. The form is filed and completed at the first stage of the EB-5 process and contains all the information required for the adjudication of the EB-5 investors green card request.

We are a team of U.S. licensed lawyers who specialize in the EB-5 immigrant investment program. We have an extensive amount of experience assisting families in the GCC and emerging markets file their I-526 petitions. Our firm, The American Legal Center operates out of our Dubai offices and provides prospective investors with the opportunity to smoothly transition themselves and immediate family members into the U.S. via the EB-5 program.

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