Backlogs and Retrogression: The EB-5 Visa Queue Explained

The EB-5 Immigrant Investor Program, while offering a pathway to a U.S. Green Card, is often characterized by significant processing delays, backlogs, and the complex phenomenon of retrogression. Understanding these dynamics is crucial for any investor navigating the queue.

Understanding Visa Bulletin Categories

The Department of State (DOS) publishes a monthly Visa Bulletin that dictates when an immigrant visa number is available for applicants based on their priority date. For EB-5 investors, the category is typically "C5" (Direct Investment) or "I5" (Regional Center).

Priority Dates and Final Action Dates

Two key dates govern the availability of a visa:

• Priority Date: The date USCIS officially accepts the I-526 or I-526E petition. This date establishes the investor's place in line.
• Final Action Date: The date listed in the Visa Bulletin when a visa number can actually be issued or adjusted. If the priority date is earlier than the Final Action Date, the case can move forward.

The Mechanics of Backlogs

A backlog occurs when the demand for immigrant visas in a specific category or country exceeds the annual statutory limit. The EB-5 program is subject to a worldwide annual limit of 10,000 visas, with a per-country cap of 7%.

When demand from a single country (historically China and India) surpasses this 7% allocation, that country's dates become "unavailable" or advance very slowly, leading to a substantial backlog.

The Concept of "Retrogression"

Retrogression is perhaps the most frustrating aspect of the queue. It occurs when the DOS must move the Final Action Dates backward from one month to the next. This usually happens when:

1. A large number of previously backlogged cases from other countries suddenly become documentarily current.
2. The DOS realizes they have over-allocated visas based on initial projections.

Retrogression means that an investor who was previously eligible to file for a Green Card may suddenly find their priority date is no longer current in the subsequent month's Visa Bulletin.

Impact of the EB-5 Reform Act of 2022 (EB-5 Reform)

The recent legislation introduced significant changes designed to address long-standing backlogs:

• Visa Set-Asides: A portion of the 10,000 visas are now reserved specifically for new direct and regional center investments:
  • 20% for Rural areas
  • 10% for High Unemployment areas (Targeted Employment Areas - TEAs)
  • 70% for Non-TEA areas
• Visa Recapture: The legislation allows for the recapture of unused visas from previous fiscal years (up to approximately 32,000 visas). These recaptured visas are primarily available to investors currently waiting in the backlog, especially those filing based on the new set-asides.

Navigating the Queue

For investors facing long waits, strategic planning is essential. Filing in a TEA or Rural category, where set-aside visas are available, can potentially offer a much faster path to final adjudication than filing in the general pool, provided the investor meets the specific geographic criteria.

Investors must continuously monitor the Visa Bulletin and consult with legal counsel to determine the most advantageous filing strategy given their country of origin and investment type.