EB-5 Immigrant Investor Program: How Long Will the "Dual Filing" Window Remain Open?
EB-5 Immigrant Investor Program: How Long Will the "Dual Filing" Window Remain Open?
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiao Xiang
The EB-5 Reform and Integrity Act of 2022 (hereinafter referred to as the "RIA"), which went into effect on March 15, 2022, reshuffled the U.S. EB-5 Immigrant Investor Program. It set aside priority reserved visa slots for three categories of projects, allowing investors in these projects to concurrently file their immigration petitions and adjustment of status applications in the United States—a one-step solution to their green card applications. This has reignited enthusiasm for the U.S. immigrant investor program.
Consequently, many foreign nationals with the financial means have developed a keen interest in pursuing U.S. permanent residency through the EB-5 program. Those who acted swiftly have already submitted concurrent applications, obtained work authorization and advance parole; others are in the process of filing; still, some remain hesitant, uncertain about when the "Dual Filing" window will close.
The closure date of the "Dual Filing" window hinges on when the EB-5 visa slots reserved under the RIA are fully exhausted.
What exactly are the reserved EB-5 visa slots under the RIA?
In short, since March 2022, three project categories—rural projects, high-unemployment area projects, and infrastructure projects—have been allocated priority reserved EB-5 visa slots. Investors who put their capital into these three categories are eligible to file their immigration petitions and adjustment of status applications immediately, i.e., they can concurrently submit Form I-526E and Form I-485 (Dual Filing).
So, what percentage of reserved visas is allocated to each of these three project categories?
The RIA does not stipulate specific numerical quotas, but it does define the percentage of EB-5 visas reserved for each category:
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20% of EB-5 visas are reserved for investors in rural projects;
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10% of EB-5 visas are reserved for investors in high-unemployment area projects;
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2% of EB-5 visas are reserved for investors in infrastructure projects.
As long as the reserved visa slots for the above categories are not fully utilized, new investors in these projects can file concurrent immigration and adjustment of status applications, obtain work authorization and advance parole, and achieve a one-step transition from nonimmigrant to immigrant status in the U.S.
However, the Dual Filing option is only available to investors physically present in the United States. Investors residing outside the U.S. are not eligible for concurrent filing.
Furthermore, investors in the U.S. must have maintained physical presence in the country for a minimum of 90 days before filing their immigration applications.
As a result, many prospective investors are eager to come to the U.S. to wait out the 90-day period and then file concurrent applications, but they worry that the reserved visa slots might be depleted before the 90-day waiting period ends.
The primary source of this anxiety is the lack of transparency regarding the total number of EB-5 applications filed since the RIA took effect.
Now, here comes the good news!
Through persistent efforts, the EB-5 Investment Coalition has obtained the following statistical data from U.S. Citizenship and Immigration Services (USCIS) under the Freedom of Information Act (FOIA):
|
Project Type
|
Mainland China
|
India
|
Vietnam
|
Other Countries
|
Total
|
Percentage
|
|---|
|
Rural Projects
|
247
|
57
|
7
|
66
|
377
|
24%
|
|
High-Unemployment Area Projects
|
429
|
180
|
68
|
413
|
1090
|
69%
|
|
Infrastructure Projects
|
0
|
0
|
0
|
0
|
0
|
0%
|
|
Non-High-Unemployment Area Projects
|
23
|
15
|
3
|
72
|
113
|
7%
|
|
Rural High-Unemployment Projects
|
2
|
-
|
1
|
2
|
5
|
0.3%
|
|
Total
|
701
|
252
|
79
|
553
|
1585
|
****
|
Although this dataset only covers EB-5 applications received by USCIS between April 1, 2022, and April 30, 2023, it provides valuable insights for estimating how long the Dual Filing window will remain open.
To save space, we will directly present our analysis and conclusions below:
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The number of applications utilizing the reserved visa slots is not as high as many had feared or anticipated.
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A significant portion of the 20% reserved visa slots for rural projects remains available. The Dual Filing window for rural project investors will not close anytime soon.
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The 10% reserved visa slots for high-unemployment area projects are being utilized at a faster rate. The Dual Filing window for this category is likely to close earlier than that for rural projects.
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Based on the data, we can calculate that an average of over 120 applications for reserved visa slots were filed per month between April 1, 2022, and April 30, 2023.
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The exact number of EB-5 applications received between May 1, 2023, and November 14, 2023, remains unknown. However, based on the number of applications filed by our firm, the average monthly number of applications during this six-month period is likely higher than the monthly average recorded between April 1, 2022, and April 30, 2023.
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With an increasing number of new rural projects coming onto the market, rural EB-5 projects are poised to become the mainstream choice for investors. The main reason is that this category is allocated a relatively large share of reserved visa slots.
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While we cannot accurately predict the exact date when the reserved visa slots for the three categories will be exhausted and the Dual Filing window will close as a result, we speculate that it is highly likely the window will remain open throughout the first half of 2024.
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Therefore, please refrain from asking questions like "When will the Dual Filing window close?" or "Is it still too late to come to the U.S. now to prepare for Dual Filing?" If you are interested in obtaining U.S. residency through the EB-5 program, now is an excellent opportunity. The sooner you start the process, the sooner you can secure your peace of mind.
The above overview is prepared by XIE LAW OFFICES,LLC. to provide legal information to the Chinese community. It is primarily for academic discussion purposes and does not constitute legal advice on specific cases. If you already have legal representation, please consult your own attorney, who is familiar with the details of your case. Clients of Xie & Associates Law Firm, as well as readers who have not yet retained legal counsel, may contact Attorney Xie for specific legal questions. If you wish to reprint this document, please do so in full without any deletions, and clearly indicate the source.
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