Visa retrogression occurs when the demand for EB-5 immigrant visas surpasses supply, leading to delays. Investors from high-demand countries like India and China face longer wait times. The January 2025 Visa Bulletin warns of potential backlogs in rural and high-unemployment area categories.
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.
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Investors from high-demand countries like India and China often face delays due to visa limits. A priority date after the cut-off means inevitable residency delays, making early filing essential to minimize wait times.
The January 2025 Visa Bulletin warns EB-5 investors of potential visa backlogs in rural and high-unemployment area (HUA) set-aside categories. While currently “current,” growing demand could lead to delays. Investors are urged to act quickly to secure priority dates and queue positions.
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:
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:
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.
Demand vs. Visa Supply
Recent data reveals an intense demand for EB-5 visas, especially in set-aside categories:
The surge in EB-5 visa demand is notable as interest from countries beyond India and China now matches their levels. Since April 2022, approximately 1,800 HUA set-aside petitions have been filed by Chinese applicants, 700 EB-5 applications by Indian applicants, and 1,500 EB-5 applications 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 countries like India, China and Vietnam as seen in the past.
Critical Actions for Investors to Protect Themselves
To mitigate the risks of retrogression, EB-5 investors should act promptly:
File Early: Submit your I-526E petition now to secure a priority date while rural and HUA categories are current.
Use Concurrent Filing: U.S.-based investors can file I-526E and I-485 together, gaining interim benefits like work authorization (EAD) and travel permits (AP). Filing early preserves these benefits even if cut-off dates are introduced later.
Explore Staggered Investment Programs: Options like USIF’s Staggered Investment Plan allow filing with partial funding of $200,000, securing a priority date while arranging the remaining investment over a period of 6 months.
Seek Legal Guidance: Immigration attorneys can help navigate filing timelines, address CSPA concerns, and ensure compliance, especially for H-1B and F-1 holders.
The growing popularity of EB-5 set-aside categories makes visa waiting lists in 2025 increasingly likely. A surge of I-526E petitions is expected by Q2 2025, with demand driven by investors from countries like India and China. India’s currency exchange controls allow new exchanges starting in April 2025, potentially accelerating EB-5 investments.
This article was originally posted by The Economic Times
Authored by Nicholas Mastroianni III President and Chief Marketing Officer, US Immigration Fund, In collaboration with Ignacio A. Donoso, Managing Partner- Donoso & Partners