News & Insights

Understanding the Rapid EB-5 Visa Availability for Indian Investors

According to the May 2020 Visa Bulletin released by the Department of State, the new EB-5 visa availability date for India is October 1, 2019.  This is great news for all applicants that have an approved I-526 with a priority date of October 1, 2019 or earlier.  However, for all the applicants that do not have an approved I-526, this does not help too much as they cannot apply for adjustment of status or consular processing for a green card.  As a result, people who have current priority dates are stuck in a long waiting game to get their I-526 approval.

On January 29th, USCIS announced that starting March 31st there would be an operational change in how EB-5 applications are adjudicated.  USCIS announced that in order to adjudicate an I-526 application, the country had to be current or the applicant’s priority date had to be current.  This means that regardless of when you applied, if your priority date were not current, USCIS would not adjudicate your application.  The previous rule had been a first in, first out adjudication of files so they went by the date of application.  However, now there is a complete change to the process that is directly related to the Visa Bulletin from the Department of State.

The question now is what this means for clients who have a priority date of October 1, 2019 and before and their I-526 application is not adjudicated.  Based on the new rule put out by USCIS that was to go into effect on March 31, 2020, this should mean that applications should start getting adjudicated as their priority dates are now current.  However, USCIS has not given a number of applications that have a current priority date nor have they provided if the current processing times of 31 to 50.5 months will be sped up.  There has been some anecdotal evidence of applications being approved quicker that priority dates that are current but nothing that can be relied upon as an actual process that USCIS has implemented.  As a result, Indian born clients must explore their options to move their cases forward.

While the options are limited for individuals that want to have their applications adjudicated in a timely manner, there are a few options available.  We do recommend that each applicant put in an immediate inquiry with USCIS on their applications if they have a current priority date.  In addition, as with all applications, you have the option to write to your local US Congressperson on your individual file to seek their assistance.  The last and possibly most effective option we have seen is to file a Federal lawsuit against USCIS.  While all of these options are available, none of them guarantee an immediate result.

We are keeping a close watch on all news of EB-5 applications and their adjudications.  Right now, the Indian priority dates are moving fast but the I-526 processing times have not caught up.  This is a very unique time for India as the problem has been the opposite over the last several years.  We do recommend you speak to your EB-5 attorney on all options available and to get a clear understanding of where your application stands in the process.

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