As many of you might have seen, the July 2020 Visa bulletin was released a week ago and the big surprise was that the Final Action Date (FAD) for India born EB-5 applicants has become current again. Just a few months ago, it was retrogressed all the way back to 2017. Late last year, I had a chance to meet with Charlie Oppenheim, Chief of Visas at the Department of State. Mr. Oppenheim is the person who sets the visa bulletin every month after doing his magic calculations based on visa quotas and approved petitions.
Mr. Oppenheim and I had a long chat at the IIUSA conference in Seattle and we discussed the retrogression scenario for India. Back then itself, he had prophesied that India will become current by July 2020. One of the main reasons that Mr. Oppenheim indicated at that time was the slow processing of I-526s by USCIS IPO. His department which allocates Visa numbers for all approved I-526s have visibility into the number of approved I-526s by country and he could see back then that Indian 526s were not getting approved in big numbers for the retrogression to prolong.
Charlie did however mention that this is only a short term phenomenon and India will get retrogressed again in FY 2021. Well, this was before Coronavirus came and upended the entire world.
Last week, Charlie was again speaking at the IIUSA conference webinar and he mentioned that can see India being current into Q1 FY 2021 because of consulate closings around the world and increase of visa numbers for all EB-5 countries in FY 2021. (Any leftover unused family category visa numbers in FY 2020 will be transferred to EB categories in percentages set by the INA act). Normally there are 10,000 EB-5 visas issued per year, out of which any country can get a maximum of ~7%, which works out to around 700 visas per country.
Unused visas out of the 10,000 will then be given to the applicants with the earliest FAD/PD/filing date, which in the case of EB-5 is Chinese applicants who hava been waiting since 2014 for visa numbers. But because of President Trump’s Executive Order which has stopped family category green cards from being issued, there will be a significant increase in EB-5 visas in FY 2021 and probably even FY 2022.
What does this mean for an Indian EB-5 applicant currently looking at investing $900,000 USD?
The FAD being current is not beneficial for new Indian EB-5 investors, as it takes around 18-24 months for an I-526 to be approved. An Indian investor filing now cannot look at next month’s Visa bulletin and try to figure out his/her waiting time for a visa number or retrogression.
But there is good news, in that, because of the Visa numbers increasing for EB-5 over the next year or two, the waiting time for India investors will decrease by a year or two. So, instead of a 6-8 year wait, it might be a 4-6 year wait for Indian investors. This is still a marked improvement for Indian H1-Bs stuck in the EB2/3 queue with wait times over 20 years.