October 2022 - EB-5 Updates & News

The October Visa bulletin is out and it doesn't portend well for existing Indian EB-5 Investors. The Final Action Date (FAD) which was current in September 2022 has now retrogressed to 8 November 2019. This will affect all Indians who invested in the unreserved $500,000 USD TEA Investment limit.

Indian-born EB-5 applicants who are seeking for adjustment of status under the $500,000 investment categories will also be subject to a cut-off date starting in October. It is the first time ever in EB-5 history that a date for filing is established for Indian-born investors. Although Indian investors who have filed for adjustment of status can still get their EAD/AP while waiting for their FAD to become current.

DOS offered these comments on the visa retrogression in October: "heavy China-mainland born and India demand along with lower visa number availability for FY-2023 as compared to FY-2021 and FY-2022 has made these corrective actions necessary to keep number use within the maximum allowed under the FY-2023 annual limits."

It is unclear at the moment how many months/years the delay will be for existing EB-5 investors as there were a significant number of EB-5 petitions filed right before the Nov 21 2019 deadline, when the EB-5 investment limit was increased from $500,000 to $900,000. The New EB-5 categories created under the 2022 EB-5 Reform & Integrity Act are still current and should stay current for all countries for atleast the next 12-18 months.

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Prospective EB-5 Investors already in the US on a nonimmigrant visa can now concurrently file their I-485/AOS (Adjustment of Status) petition along with their I-526E petition while the date of filing is current for their country. As of now, all countries are current for the reserved $800,000 USD investment categories.
The ability to concurrently file the AOS petition along with the I-526E allows new investors to stay in the US while their application is adjudicated. It also gives investors the peace of mind to not worry about future retrogression as they can still stay in status in the country even if their retrogresses in the future. In fact, Investors can stay, work & travel in the US while awaiting their conditional green card. In order to work and travel outside the US, investors will have to file for EAD/AP benefits along with their I-485 petition.

Investors with children who are in their teens and nearing 21 years of age in the next few years can also lock in their child's age by filing for the AOS petition, while their country is current. This is a major advantage for the many H1B dependents who will have to go on a different visa like the F1 Visa or leave the country when they turn 21 years of age. A pending EB-5 petition concurrently filed with an AOS petition will allow the children to stay in the country in status and continue their studies or work.

If you like to learn more about the AOS process, we have Podcast on the subject with 2 EB-5 Super lawyers, Matt Galati & Michael Harris. Click here to listen to it.