At a groundbreaking webinar, panelists broke down the never-before-seen data obtained through FOIA requests and discussed how Regional Centers and investors should respond.
One of the most frustrating things about working in EB-5 is the lack of communication from USCIS. Without consistent, accurate data on things like adjudication times, visa availability, and the status of specific countries and visa categories, it can be hard for stakeholders to make informed decisions. Thankfully, IIUSA has decided to do something about it, and at a recent webinar, we got a glimpse of the data that has been unearthed.
On October 2nd, 2024, IIUSA and JTC hosted “Post-RIA I-526/E Data Trends: Filings, Adjudications, and Processing Times,” a virtual event that offered a first glimpse at some of the data obtained through IIUSA’s membership survey as well FOIA requests that obtained data straight from USCIS.
“Having real data helps me to advise people on realistic, reasonable timeframes that they can expect to go through this process,” said Brandon Meyer of Meyer Law Group, who participated in the FOIA request efforts.
While the panel couldn’t cover all the information included in the report, there were a few things that stood out because they may affect the behavior of EB-5 investors going forward.
Visa availability and demand by country
One of the slides presented at the webinar covered post-RIA I-526E & I-526 case filing and adjudication trends organized by country and investment category from FY2022 through the first three quarters of FY2024. The data was broken up into three major groups: China, India, and Rest of the World, groupings that made sense to the panelists.
“China and India have historically always been the biggest markets,” said Christine Chen, COO of CanAm Enterprises.
“Over half the filings in those years are from Chinese investors,” added IIUSA Director of Policy Research & Data Analytics Lee Y. Li, who noted that for China and India, “we have more filings in the first three quarters of FY2024 than in the entire year of FY2023,” signaling an incredible rebound from the pre-RIA lull.
Suzanne Lazicki of Lucid Professional Writing gave her thoughts on whether there was concern about any country being in danger of hitting the country cap of 7% of available visas.
“7%, once you get into EB-5 categories, is really small,” said Lazicki. However, most countries don’t have much to worry about. “Every year since 2005, basically, it’s been the same four countries: China, India, Mexico, and the Philippines.”
That 7% country cap applies to all available visas, not just EB-5, and while Mexico and the Philippines use up a lot of other available visas, they shouldn’t be in danger of hitting 7% in EB-5. But what about China and India?
“That depends on if other people are using the rest of the 86%,” she cautioned.
The effect of concurrent filing
Meyer said that based on his experience, the data for India includes a large number of applicants taking advantage of the RIA’s provision for concurrent filing of adjustment of status.
“I would estimate that less than 5% of this number are people that are actually filing from India,” he said. “The vast majority are here in the United States on F-1 student visas and H-1Bs.”
“Their decision-making process is a little bit different from investors coming from their home countries,” said Chen, who noted applicants living in the U.S. may be less incentivized to pursue set-aside categories (which offer priority processing) because they’re already in the country and able to work thanks to concurrent filing.
The panel discussed the idea that concurrent filing may also lower the average family size (and therefore the average number of visas per I-526 application) because concurrent filing is driving applications from younger petitioners who are single or parents of U.S.-born children.
“That has a very positive effect of lowering the overall visa demand, and that’s delaying the potential of retrogression,” said Meyer. The panelists also said concurrent filing may lessen concerns about retrogression among investors because they’ll be able to pursue work opportunities while they wait. That said, retrogression is still a major concern, and thanks to the new data, we have some idea about when it might affect set-aside categories.
The status of rural and high-unemployment reserved categories
One of the biggest questions since the RIA was passed has been how soon set-aside categories might fill up. Until now, there hasn’t been accurate data on the number of pending applications, but thanks to this new information, we have some idea. As Suzanne Lazicki pointed out at the webinar, carryover visas from 2022 and 2023 have prevented retrogression thus far, but that isn’t likely to last.
“Think of market size in terms of how many visas are available,” said Lazicki. While there are high-unemployment visas available now, once carryover visas are gone, the per-year number could be insufficient to meet demand. “This number is not going to leave many on the table,” she said.
Li walked the audience through filings organized by category, noting that while rural investments have increased from China and India, the rest of the world hasn’t caught up, and overall, “high unemployment still accounts for the majority of filings.” Regional Centers are well aware that since high-unemployment could reach its 10% limit, the 20% allocation for rural visas will become even more important.
“It’s the largest category for set-aside visas and therefore the most appealing,” said Chen.
“There are twice as many rural visas as high-unemployment visas,” agreed Lazicki “We need to see these numbers of rural filings be twice high-unemployment or people aren’t going to be getting visas.”
One reason rural filings have lagged behind high-unemployment filings may be that it has taken a while for Regional Centers to adjust to the particulars of rural development.
“A lot of regional centers had to kind of pivot to find rural projects,” said Chen.
Even once more rural projects get going, several of the panelists doubted we’ll ever see a 2:1 ratio of rural to high-unemployment simply because urban projects are seen as safer from a financial standpoint.
This became a larger topic of discussion during the webinar’s second hour, when Meyer talked about how he might advise clients intent on rural projects because of their faster processing times.
“You’re saving roughly four months over a five-year process,” he said, pointing out that “this is still an $800,000 investment.” Meyer said investors should approach evaluation with “a holistic perspective beyond processing times.”
“There’s just a multitude of factors that investors should be considering before making a decision,” said Chen, “and the better data and information they have, the better informed they are to make that decision.”
The data from the webinar’s second hour did validate the fact that rural projects and investor petitions are, on average, getting approved more quickly, though that doesn’t guarantee an individual investor will see the best case scenario.
“It does show very clearly that they are doing priority processing for rural,” said Lazicki.
“It’s good to see that the aims of the program are being carried out,” said Chen.
Lazicki reiterated that high-unemployment projects may stop being as attractive once the carryover visas dry up.
“This is three years’ worth of high-unemployment visas and two years’ worth of rural visas just in the first months of 2024,” said Lazicki. “We need to get visa relief.”
“The program is popular,” agreed Li. “The visas are not enough.”
What this means for the industry and IIUSA’s continuing work
Retrogression is always on the minds of industry stakeholders, especially those working with Chinese and Indian investors who’ve been able to invest in set-aside categories since the RIA.
“It’s not a question of if there’s retrogression, it’s when there’s retrogression, what it looks like,” said Lazicki. “I don’t think it can happen in 2025 with this low number of applicants.”
“If something’s available to you today, take it,” said Meyer, “because it might not be available tomorrow.”
Li discussed how IIUSA’s work to compile the best possible EB-5 data will continue, and suggested ways Regional Centers can take part. One thing the panelists could all agree on was the value of this information.
“Having this kind of data available in real time allows the industry to hold USCIS accountable,” said Chen. “It really points to a picture of the kind of information we as an industry can provide to help our clients and help each other.”
