Understanding EB-5 Visa Retrogression and Potential Solutions

The EB-5 program, like all other visa categories, operates within a quota system. The U.S. government allocates a specific number of green cards each year for each category, including EB-5. To ensure fairness, no single country can claim more than a designated percentage of these green cards.

What is EB-5 Retrogression?

When demand from a particular country exceeds its allocated quota, a backlog occurs, known as “retrogression.” This results in longer processing times for EB-5 applications from that country. Historically, China and India have experienced the most frequent instances of retrogression within EB-5 and other visa categories.

Strategies for Addressing EB-5 Retrogression:

• Legislative Changes (2022): Recent legislation allows for quota adjustments based on investment type. This offers more flexibility for investors seeking to potentially expedite their applications.
• Targeted Investment (TEAs): The EB-5 program incentivizes investment in Targeted Employment Areas (TEAs) – rural or high-unemployment areas. Applications for investments in TEAs receive visa set asides, and applications for rural TEAs often experience faster processing due to priority given by USCIS.
• Investment Location: Consider geographically diversifying your investment. While EB-5 offers flexibility in investment location, focusing on TEA areas can potentially shorten processing times due to quota set-asides.
• Concurrent Filing: Those EB-5 investors already located in the United States can concurrently file for their adjustment of status. As long as the priority date for an investor’s country of origin is still current, this will allow for the investors to immediately apply for their advanced parole and employment authorization document, essentially streamlining two of the key benefits of obtaining U.S. permanent residence.

By understanding retrogression and exploring these strategies, potential EB-5 investors can make informed decisions to optimize their application process.

Video Transcript
EB-5 retrogression refers to the quota-based limitations that we have in the EB-5 and all other (visa) categories. The government only produces so many green cards per year for each category and EB-5 is no exception. No one country can use up more than a certain percentage of those allotted green cards per year. When that happens, a backlog results which is referred to as “retrogression” China and India historically have the longest wait times or have the most instances of retrogression occurring in the EB-5 and other categories. When that happens, ways to address retrogression would include changes in the law that happened in 2022 allowing for allocations depending on the investment type. EB-5 investors may invest in virtually any type of business in any location. One way to lessen the impacts of the visa quota system, or retrogression, is to invest in a rural or high-unemployment area where the government prioritizes the processing of investments made in rural areas and there are set-asides in the quota system for investments that are made in TEAs, rural areas or investments involving infrastructure.

Presented by:
Brent Huddleston, Immigration Attorney, Huddleston Law Group PLLC