Visa retrogression occurs when demand for immigrant visas in a specific category exceeds the annual supply, causing delays for applicants. In the EB-5 program, retrogression happens when the U.S. State Department sets a cut-off date on the Visa Bulletin. Only investors with a priority date—the date their I-526E petition was filed—earlier than the cut-off date can proceed with their applications.

For investors from high-demand countries like India and China, retrogression is a recurring challenge due to country-specific visa caps. If an investor’s priority date falls after the cut-off date, delays in obtaining conditional permanent residency become inevitable, regardless of petition approval. This makes securing an early priority date critical to avoid prolonged waiting times.

The January 2025 Visa Bulletin issued a significant warning for EB-5 investors: visa backlogs may soon occur in the rural and high-unemployment area (HUA) set-aside categories. While these categories remain “current” for now, rising demand could trigger delays. Investors must act swiftly to secure their priority dates and maintain their place in the queue.

Legal Ramifications of Visa Retrogression

Visa retrogression creates significant legal hurdles for EB-5 investors, especially those currently in the U.S. on H-1B or F-1 visas. Even with an approved I-526E petition, retrogression can delay key milestones in the immigration process.

Loss of Concurrent Filing Benefits

If a cut-off date is established, investors lose the ability to file their Adjustment of Status (AOS) application (I-485) at the same time as their I-526E petition. Without concurrent filing, they also lose access to crucial interim benefits from AOS, including:

Work Authorization (EAD) — The ability to work freely in the U.S. without employer sponsorship.

Advance Parole (AP) — The ability to travel internationally without jeopardizing visa status.

Child Age-Out Risks

The Child Status Protection Act (CSPA) allows dependent children’s ages to be “frozen” at the time of filing an AOS. However, if retrogression delays the ability to file AOS, children who turn 21 before filing could “age out” and lose eligibility for a green card as dependents. For many families, this is one of the most critical risks of retrogression.

Delayed Conditional Residency

Investors face delays in receiving their conditional green card, which extends the timeline for obtaining full U.S. permanent residency. Without a conditional green card, investors may remain in a state of uncertainty for longer periods.

Increased Risk for H-1B and F-1 Visa Holders

For investors already living in the U.S. on H-1B or F-1 visas, retrogression adds another layer of risk. Without the ability to file AOS concurrently, their residency status remains tied to their current visa. This means:

Loss of Work and Travel Benefits — Without EAD and AP, they rely solely on their existing H-1B or F-1 status for work and travel.

Risk of Losing Status — If an H-1B holder loses their job or an F-1 student’s status expires, they must leave the U.S. or scramble to secure a new visa.

How to Mitigate These Risks

Acting before cut-off dates are established is the most effective strategy to avoid these issues. Filing I-526E petitions early allows investors to lock in priority dates and retain access to AOS, EAD, and AP benefits. For families with dependent children nearing 21, early action is critical to avoid age-out risks.

Impact of Increasing Demand and Limited Visas

The EB-5 Reform and Integrity Act (RIA) of 2022 introduced set-aside categories for EB-5 visa allocation, carving out 32% of total visas for specific project types:

Rural Areas — 20% of EB-5 visas
High-Unemployment Areas (HUA) — 10% of EB-5 visas
Infrastructure Projects — 2% of EB-5 visas

This allocation was designed to channel investment into priority areas, but it has also created new visa bottlenecks as demand for these categories has surged.

Demand vs. Visa Supply

Recent data reveals an intense demand for EB-5 visas, especially in set-aside categories:

7,000+ I-526E petitions were filed from April 2022 to July 2024.

For FY 2025, the total visa allocation for rural, high-unemployment, and infrastructure projects is 6,839 visas. The surge in demand has been unique because the popularity for EB-5 visa petitions from countries other than India and China has matched the demand from India and China.

For example, in the HUA set-aside category, recent statistics indicate that roughly 1,800 EB-5 petitions have been filed by Chinese-born applicants since April 2022, while 700 EB-5 petitions were filed by Indian-born applicants and 1,500 EB-5 petitions were filed by applicants from the Rest of the World.

The ripple effect of this landscape in the HUA category is that it will inevitably lead to an EB-5 waiting list for the EB-5 HUA, and it is likely to apply to China, India, and the Rest of the World.

While the rural set-aside category has been slower to garner popularity among investors, recent data shows increasing demand that is approaching the annual visa allocation.

Critical Actions for Investors to Protect Themselves

To mitigate the risks of retrogression, EB-5 investors must take immediate action:

File Now to Secure Your Priority Date — Investors should act quickly to file their I-526E petitions while the rural and HUA categories remain current. The earlier your priority date, the better your position in the visa queue when retrogression hits.

Leverage Concurrent Filing — Investors already in the U.S. can file their I-526E and I-485 simultaneously, gaining interim benefits like work authorization (EAD) and travel permits (AP). Filing early ensures these benefits remain available, even if cut-off dates are established later.

Consider Staggered Investment Programs — Programs like USIF’s $200,000 Staggered Investment Plan allow investors to file their I-526E with partial funding. This enables investors to lock in their priority date now while organizing the remaining investment over time.

Consult Immigration Attorneys — Navigating retrogression is complex, especially for H-1B and F-1 visa holders. A qualified immigration attorney can help investors strategize filing timelines, manage CSPA concerns, and ensure compliance with USCIS requirements.

What This Means for Investors

The popularity of the new EB-5 programs and its set-aside categories has grown to the point where visa waiting lists in 2025 are very likely. We expect that there will be a surge in EB-5 visa petitions in the HUA and rural set-aside categories in Q2 of 2025.

For example, the currency exchange controls in India allow for new currency exchanges starting in April 2025, which may create a surge of EB-5 investments from Indian-born applicants. As with all visa processes, earlier actors reap the benefits of shorter processing and shorter waiting lists. Investors who move forward in late 2025 could face multi-year delays.

By acting now, investors can:

Lock in a Priority Date — Priority dates determine an investor’s position in the visa queue. Securing an earlier priority date provides a major advantage when visas become scarce.

Maintain Concurrent Filing Benefits — Investors who file before retrogression can concurrently submit their Adjustment of Status (AOS) applications, allowing them to obtain work and travel authorization (EAD and AP).

Reduce Age-Out Risks for Dependents — Filing early freezes the Child Status Protection Act (CSPA) age of dependent children, protecting their eligibility for green cards.

Conclusion: Act Now to Secure Your EB-5 Future

The January 2025 Visa Bulletin is a clear warning: EB-5 visa retrogression in the set-aside categories is imminent. Investors who delay filing their petitions risk losing critical benefits, facing longer wait times, and jeopardizing their families’ green card eligibility.

To protect themselves, investors must act decisively by filing their I-526E petitions now, leveraging concurrent filing benefits, and exploring staggered investment programs to secure their priority date.

As the EB-5 program evolves, timing is everything. Acting today could make all the difference for investors seeking to secure U.S. permanent residency for themselves and their families.

Disclaimer: Views, recommendations, and opinions expressed are personal and do not reflect the official position or policy of FinancialExpress.com. Readers are advised to consult qualified financial advisors before making any investment decision. Reproducing this content without permission is prohibited.

The article was originally posted by The Financial Express

Authored by Nicholas Mastroianni III, CMO & President of U.S. Immigration Fund & Ignacio A. Donoso, Managing Partner- Donoso & Partners