EB5 India is Current: What This Means for Current and Potential Investors

The employment-based, fifth preference (EB5) category returns to being current in the July 2020 Visa Bulletin. This is the first time in a year that EB5 India has not required a final action cutoff date in the monthly visa bulletin. Still, it is important to understand what this means for any Indian with a pending or approved immigrant petition by alien investor (form I-526), and for others who are considering making EB5 investments.

Background on the EB5 Category

Under the EB5 investor program, a foreign national can self-petition for permanent resident status, based upon an investment of $1,800,000 in a U.S. commercial enterprise, or a $900,000 investment if the enterprise is in a targeted employment area – that is, a rural area or area with high unemployment. The investment must create at least ten full-time jobs for U.S. workers. But, if the EB5 investment is made in a regional center, this requirement can be met by showing the creation of indirect jobs, rather than direct hires.

Approved I-526 Required to Apply for “Green Card”

In order to take immediate advantage of the fact that the EB5 category for India is current as of the July 2020 Visa Bulletin, the investor must have an approved I-526 petition. Once approved, if the individual is in lawful status in the United States, the EB5 investor may file an application to adjust status (form I-485). The investor’s spouse and children under the age of 21 may also apply. Applications for employment authorization and advance parole can also be filed concurrently with the I-485 applications.

If the person is abroad, and is unable to enter the U.S. in H1B or L-1 status, the EB5 case typically proceeds via consular processing. It may take a number of months for the interview to be scheduled at the consulate.

Considerations for Indians Interested in Filing the EB5 Petition

It is nearly impossible to make accurate long-term visa bulletin predictions in any of the employment-based categories, including EB5. If an Indian EB5 investor files now, there is no guarantee that the category will still be current by the time the I-526 is approved. The latest predictions are that EB5 India will remain current for the foreseeable future, which is encouraging, but there is always the risk that retrogression could occur again.

Part of the problem is that processing times for I-526 petitions have increased significantly in recent years. In fact, as of this writing, the Immigrant Investor Program Office (IPO), which is the unit within the U.S. Citizenship and Immigration Services (USCIS) that handles EB5 petitions, lists an absurdly long average processing time of 29.5 months to 61 months.

Fortunately, the IPO has changed its inventory management system in a manner that has benefited many EB5 investors, including those from India. Until recently, the IPO generally adjudicated I-526 petitions in the order filed. The problem with this method is that the vast majority of older I-526 petitions that are pending were filed by investors from China. EB5 China is heavily backlogged, so even after one of these I-526 petitions is approved, the Chinese investor still may have to wait years before becoming eligible to apply for a green card.

On March 31, 2020, the IPO implemented a new adjudication system for the EB5 category, prioritizing I-526s based on visa availability. This essentially means that EB5 investors from any country other than China and Vietnam, which is also backlogged, are given priority. It is too soon to tell precisely how much faster this will make the I-526 process for Indians. But anecdotally, the Murthy Law Firm has begun to see EB5 cases filed by Indians moving more quickly in recent months.

Conclusion

Given the costs involved, the EB5 category obviously is not an option for all Indians interested in becoming permanent residents of the United States. Still, for those with the means to do so, the EB5 category presents an attractive option. Even though it may not provide an instant green card, it tends to be substantially faster than most other green card categories (e.g., EB2, EB3). Those interested in pursuing an EB5 case are encouraged to contact a Murthy Law Firm attorney at EB5@murthy.com.

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