October 2024 Visa Bulletin Keeps Current Across Post RIA Set Aside EB 5 Categories, Backlogged Countries in the Unreserved Chart A Category Modestly Progress

As the 2024 federal fiscal year concludes, the U.S. Department of State (DOS) has released its highly anticipated October 2024 visa bulletin, ushering in the start of federal fiscal year 2025 and, with it, new immigrant visa numbers. For intending immigrants with backlogged priority dates, the annual influx of new immigrant visa numbers often offers at least some advancement in government processing or, ideally, the opportunity to become "current" for immigrant visa or green card processing.

Digging deeper into the fifth preference (EB-5) categories, as anticipated in our July 2024 post, EB-5 immigrant visas remain available worldwide in the set-aside categories created under the EB-5 Reform and Integrity Act (RIA) of 2022. To recap briefly, of the 10,000 EB-5 visas available for issuance annually, the RIA created the following visa "set asides:"

• 20% are reserved for qualified immigrants who invest in a rural area;
• 10% are reserved for qualified immigrants who invest in a "targeted employment area" (TEA), which meets the requirements that apply to areas of high unemployment (unemployment rate of at least 150% of the U.S. national average); and
• 2% are reserved for qualified immigrants who invest in infrastructure projects.

Immigrant visas based on approved I-526E Petitions that meet the requirements for the above set-aside categories remain "current" for processing, regardless of the applicant's country of birth. This also means that EB-5 applicants in the U.S. with a pending or approved I-526E Petition based on an investment in the set-aside categories may concurrently file for adjustment of status (AOS) and related work and travel permits ("EAD/AP"). Likewise, for set-aside EB-5 applicants awaiting processing abroad, continued availability of immigrant visas keeps the path to visa issuance clear. Accordingly, applicants can obtain their visas after satisfying the National Visa Center's documentary and eligibility requirements and completing the immigrant visa interview.

For EB-5 applicants qualifying based on pre-RIA or "unreserved" immigrant visa petitions (i.e. not eligible for the above set-aside categories), the visa bulletin similarly remains current for applicants born in most countries. The persistent exception is for applicants born in mainland China or India and applying based on an EB-5 investment in the unreserved category (as noted above, set-aside investments remain current worldwide, including for applicants born in China or India). Applicants born in mainland China or India remain backlogged due to demand outpacing the available supply. The visa bulletin displayed considerable progression in these categories under Chart A, or dates "for final action" (i.e. eligible for immigrant visa issuance by DOS once all requirements met):

• EB-5 China, Unreserved: advances 7 months, to 15 July 2016
• EB-5 India, Unreserved: advances 13 months, to 1 January 2022

The advancements reported under Chart A, however, are somewhat tempered by Chart B. Specifically, Chart B reports stagnation or retrogression in connection with the government's dates "for filing" for applicants born in mainland China or India. Briefly, the dates for filing chart reflects priority dates eligible for filing of Form I-485 in the United States, depending on government determination as to whether to utilize this chart, which is announced monthly, shortly after visa bulletin release. The specific updates in these categories under Chart B include:

• EB-5 China, Unreserved: retrogresses 3 months, to 1 October 2016
• EB-5 India, Unreserved: no movement, remains at 1 April 2022

Because the USCIS will rely on Chart B in October 2024, the lack of advancement in the EB-5 categories above means that many applicants may still be unable to progress to the next step of their green card process, including filing Form I-485, despite the promise of a new federal fiscal year. That said, applicants should keep in mind that transitioning into a new fiscal year often requires DOS to adjust available immigrant visas based on over-subscription that may have occurred at the end of the preceding year, when most immigrant visa numbers exhaust availability worldwide.

Key takeaways for EB-5 investors from the October 2024 visa bulletin:

• As was the case in our July update, a record number of EB-5 visas are available to applicants in both the high unemployment and rural area set-aside categories at the outset of FY 2025, regardless of country of birth.

• Applicants eligible under the RIA set-aside categories may, regardless of country of birth, continue to concurrently file I-526E petitions and AOS applications in October 2024.

For unreserved EB-5 investors born in mainland China or India, while the October 2024 visa bulletin displays stagnation or retrogression in Chart B, the advancements in Chart A offer some hints of future progression. Importantly, unreserved EB-5 immigrant visa processing can continue at consulates worldwide beginning October 1, 2024.

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