The Backlog for Indian Nationals in the EB-5 Program is Completely Eliminated!

A photo of the United States

We are pleased to be able to inform you that according to the most recent Visa Bulletin from USCIS, the backlog for Indian nationals in the EB-5 program is completely eliminated! As you can see from Exhibit 1 below, all Indian nationals who file for the EB-5 program have a “current” final action date for their visa availability. This means that every Indian national should have a visa available to them at the U.S. Consulate upon the approval of their I-526 petition. This is great news, as most “experts” were projecting backlogs of visa availability for years for any applicants of Indian nationality.

Exhibit 1: July 2020 Visa Bulletin

USCIS Bulletin Chart

Charles Oppenheim of the Department of State acknowledged earlier this week that EB-5 petitions for India will be current for the July visa bulletin and will continue to remain current through at least September 2020. Mr. Oppenheim also reportedly stated that he does not see Indian retrogression for the foreseeable future and that his previous calculations about retrogression times for India were overestimated on his part. This announcement by Mr. Oppenheim shows that we were right when going against all other industry news sources.

As you can see from Exhibits 2 and 3 below, the final action date for Indian nationals has dramatically improved from January 1, 2019, according to the visa bulletin from April (Exhibit 3) to January 1, 2020, last month and now all backlogs are shown as completely eliminated.

Exhibit 2: June 2020 Visa Bulletin

USCIS Bulletin Chart

For comparison, you can view the visa bulletin from April below, which represents a twelve-month jump in availability over only two months of visa bulletins from USCIS:

Exhibit 3: April 2020 Visa Bulletin

USCIS Bulletin Chart

There is no published reason for the massive jump in visa availability, but it is important to understand that previous projections depend on an assumption on the number of dependents attached to each petition that is submitted to USCIS. If an investor submits an I-526 petition for themselves and their spouse, then that only counts as two visas towards any country’s annual allotment of roughly 700 EB-5 visas. However, it seems that previous projections assumed an average of over 4 or 5 dependents per I-526 petition chargeable to India, and that was apparently not the case. While anyone outside of USCIS can only guess as to the real reasoning for the jump from January of 2019 to current for EB-5 visa availability for Indian nationals across only 3 months of visa bulletins, it will come as welcome news to anyone who applied for the EB-5 program from that time.

We will continue to monitor these timelines and trends, as data released by USCIS has occasionally clashed with information shared in the EB-5 marketplace. For example, USCIS’s fiscal year 2019 report showed that 503 EB-5 visas were issued to applicants from India, but rumors have suggested that recent submissions by Indian nationals comprised approximately 45% of all EB-5 petitions in 2019. While it is possible that both data points are true, we will continue to share the most up-to-date findings we can as they are verified or released from USCIS.

Fiscal Year 2019 Data

Exhibit 4: Number of I-526 Immigrant Petitions Submitted as of December 31, 2019

USCIS Bulletin Chart

In addition to the visa bulletin that was published earlier this week, the fiscal year data for 2019 was also published from USCIS. Please pay attention to the highlighted portions in Exhibit 3 for a couple of key points to be mindful of as you proceed in your EB-5 timeline.

  • Only 4,194 petitions were submitted in the fiscal year 2019, which ran from October 1, 2018, through September 30, 2019. This represents a steep drop off from EB-5’s peak only two to three years earlier. As more petitions are received and await adjudication, timelines for processing I-526 petitions can increase. However, USCIS has increased its staffing of adjudicators for I-526 petitions by over 400%, so processing timeframes should decrease.
  • Of the 4,673 I-526 petitions adjudicated in 2019, 21.7% of them were initially denied by USCIS. This is the highest rate of denial on record and something all families should be aware of as they await adjudication. The increase in Requests for Further Evidence (“RFEs”) and Notices of Intent to Deny (“NOIDs”) may result from one of the following scenarios. As processing timelines have grown in the recent 12 – 24 months, USCIS has resorted to issuing RFEs and NOIDs with minimal petition reviews in order to meet their adjudication quotas. As a result of this action, our trusted immigration attorneys are informing us that, although they are not experiencing these kinds of results in their own law firms, all EB-5 applicants need to be prepared to respond to an initial unfavorable adjudication from USCIS. If you receive either an RFE or NOID, please let your attorney and us know as soon as possible, so that we can make sure you have the very best team around you to get you through that process.
  • It is important to note that an RFE or NOID is simply a formal response from USCIS regarding your petition that requires a response to address any concerns that the adjudicator had with your petition, no matter how legitimate or unnecessary they may seem. If you receive an RFE or NOID, our office will immediately coordinate with you and your immigration attorney to formulate whatever response is necessary as timely as possible. However, it is important to note that most cases require your cooperation and attention to assist us and your immigration attorney to properly satisfy the concerns laid out by the adjudicator. As of the publication date of this letter, our offices have yet to have an EB-5 investor denied their I-526 or I-829 petition, but we cannot maintain this level of excellence alone. Any response to USCIS is a team effort between you, your immigration attorney, and our team. One aspect of maintaining that level of connection is monitoring your EB-5 Horizon portal for updates and informing us of any changes with your personal information or living arrangements.
  • In the yellow highlighted window of Exhibit 4, you will see that only 455 I-526 petitions were adjudicated in the first quarter of the fiscal year 2020. This slowdown in adjudications has no explanation, but we will continue to monitor these trends as they are released by USCIS.

In conclusion, we are grateful and relieved to see these official news releases from USCIS. We look forward to working with more families in the Indian marketplace who are looking to immigrate to the United States via the EB-5 program and our projects in particular. If you would like more information on potential next steps to take advantage of this elimination of backlogs for Indian applicants, please contact our EB-5 team at +1.813.838.0030 or you can reach out directly to Christian Taulbee, our EB-5 Investor Liaison, at ctaulbee@ctp-fl.com.