How You Think About the EB5 Visa Country Cap is WRONG! Here's why.
Conventional wisdom states that the EB5 visa country cap is calculated within each preference category, but that thinking is not correct, and we explain why.
Each month the US State Department publishes the official Visa Bulletin, which is the source for information on visa availability in the United States. It shows which approved immigrant applicants may move forward to obtain their immigrant visa based on the date the original petition was filed: If your EB-5 petition is approved by USCIS, you go to the Visa Bulletin chart to see if there is a visa currently available for you.
How Many Visas Are Available?
There are 140,000 employment-based green cards available each year, with specific limits for each “preference” category. US immigration law also sets limits on the number of green cards available based on the country of origin. No single country of origin can account for more than 7% of the green cards issued across all family-based and employment-based categories.
Why are Some Countries Called Out?
Although generally not an issue for most countries, this country-of-origin cap can create backlogs for EB-5 investors from China and India. (Generally, there are not enough EB-5 applicants from Mexico or the Philippines to create backlogs for those countries, which are the only other countries subject to the country-of-origin caps.)
Potential EB-5 participants should refer to the Visa Bulletin to understand whether there are visas immediately available for them after their I-526 or I-526E petition is approved. The chart for EB-5 from the latest visa bulletin shows the following:
December 2024: Final Action Dates for Employment-Based Preference Classes (excerpt to show just EB-5)
What do the Dates in the Boxes Mean?
This Visa Bulletin shows there is currently a backlog only for investors approved under the “old” EB-5 program, which was in place before the EB-5 Reform and Integrity Act of 2022 (the “RIA”), effective on March 15, 2022.
For Chinese and Indian pre-RIA investors, the dates are July 15, 2016 for Chinese applicants and January 1, 2022 for Indian applicants. Investors from China and India who applied under the old program after the cutoff dates listed (July 15, 2016, for China; January 1, 2022, for India) cannot immediately seek to get their visa and move to the United States. They must wait for the listed date to move forward to their petition’s application date, generally known as their “priority date”.
Note it is only the “Unreserved” preference category in EB-5 that shows a cutoff date. The new reserved preference categories for EB-5 all show as ‘C’ or “Current”, meaning anyone who has an approved EB-5 petition related to the new reserved visas created by the RIA can start the process to immigrate to the US, even those from China and India.
Key Points to Consider
Country Cap Misconception.
Conventional EB-5 wisdom is that the country cap is calculated within each preference category, not across all preference categories. That would mean that no one country could have more than 7% of just EB-5 visas in any reserved visa category.
This is wrong.
In a US Federal Register announcement dated March 28, 2023, the US Government acknowledged they were calculating country caps incorrectly and outlined how country caps were to be calculated moving forward. Here is an article we have written to explain EB-5 visa country caps the confusion and why investors born outside of China and India can confidently choose between either a rural or high unemployment EB-5 project.
Cutoff Dates May Not Move Month-to-Month.
The cutoff dates do not move in lockstep with the real-world calendar. The last time the dates changed for China and India were:
- In January 2024, the China cutoff date moved from October 1, 2015, to December 15, 2015, and the India cutoff date moved from December 15, 2018, to December 1, 2020. In October 2024 they moved again. The China cutoff date moved from December 15, 2015 to July 15, 2016 and the India cutoff date moved from December 1, 2020 to January 1, 2022. These were big moves that reflected the US State Department’s analysis of how many green cards were available for the EB-5 category and how many applicants were ready to apply.
Visa Bulletin Considers only APPROVED Petitions.
The Visa Bulletin dates are calculated by the Department of State based on information they have from USCIS about approved petitions. These charts do not show the impact of petitions that may have been filed before now, but are not, yet, approved.
The Visa Bulletin is the end of the story. To know how long a would-be immigrant might need to wait, it’s important to understand how many petitions might be in process ahead of them.
Visa Bulletin is a Toll Plaza on a Highway.
Think of the Visa Bulletin like a toll plaza on a highway. It lists how long the line is at the toll booth and separates the line for specific countries that have a backlog. However, the Visa Bulletin does not show how many cars are on the highway on their way to the toll plaza. Those are the pending petitions. This information is generally not made public, but there have been efforts by EB-5 industry groups to get this information. We will provide our analysis of this information separately.
Concurrent Filing Can Expedite the Process, but only for those in the United States.
Concurrent filing is a mechanism where EB-5 investors already in the United States can send in some forms at the same time as their first Form I-526E application, instead of waiting until that application is approved. With concurrent filing, investors can fill out and send in both their Form I-485 (Application to Register Permanent Residence or Adjust Status) and their Form I-526E petition at the same time.
Generally, this will allow those investors to travel in and out of the United States without any other visa, and to legally work in the United States without any separate employment sponsorship or visa. These investors may receive these benefits while their I-526E petition is pending, NO MATTER HOW MANY PETITIONS MAY HAVE BEEN FILED AHEAD OF THEM.
In our metaphor, this means that it does not matter how many cars are on the highway ahead of you. As long as there is not, yet a line at the toll booth, you may apply for these benefits. Essentially, if you’re here, you can stay here.
Have questions about EB-5, visit our website or fill out our contact form.
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Conventional wisdom states that the EB5 visa country cap is calculated within each preference category, not across all preference categories. That would mean that no one country could have more than 7% of just EB-5 visas in any reserved visa category.
Conventional EB-5 wisdom on country caps is wrong.
In a US Federal Register announcement dated March 28, 2023, the US Government acknowledged they were calculating country caps incorrectly and outlined how country caps were to be calculated moving forward.
Since April 2023, country caps are calculated based on the total number of visas available in ALL preference categories including family-based and employment-based. Immigrants from a particular county are not subject to a country cap until applications for ALL preference categories for that country reach 7%.
Once both family-based and employment-based visa applications for a particular country reach 7%, the Department of State imposes backlogs for that particular country in each preference category based on priority dates across all categories.
Investors born outside of China and India can confidently choose between either a rural or high unemployment project.
The Visa Bulletin shows China, India, Mexico, and the Philippines have all reached the 7% cap across the family-based and employment-based visas. Since Mexico and the Philippines are not big users of the EB-5 preference, China and India are currently the only countries subject to a country cap on EB-5 unreserved visas. What this means: If you were born outside of China or India, you don't need to worry about backlogs or waiting lines whether you invest in a rural or high unemployment TEA. Unless and until another country reaches the 7% quota across all preference categories, we should not expect there to be a backlog for those countries in EB-5. If you were born in China or India, you should speak with knowledgeable EB-5 professionals to understand the potential waiting periods. However, remember that your EB-5 investment decision should be based on all of the factors that are important to you, not just the potential visa quotas.
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USCIS Form I-485 for EB-5 Investors Explained
Learn how EB-5 investors can leverage the I-485 form to adjust their immigration status, the eligibility requirements for EB-5 investors, the essential documents needed, and how Form I-485 fits into the overall EB-5 process.
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Form I-485, or the "Application to Register Permanent Residence" allows an EB-5 investor to adjust their investor's status from a non-immigrant to a conditional permanent resident (CPR). To take advantage of this, the EB-5 investor must already be in the United States lawfully on a non-immigrant visa such as a F-1 or H-1B. The form is generally filed after the I-526E Petition which is the first step in the EB-5 visa process. This blog post explains how the Form I485 fits into the overall EB-5 process, the essential documents needed, and how to avoid potential delays in the adjustment of status journey.
Concurrent Filing
The passing of the EB-5 Reform and Integrity Act of 2022 (“RIA”) allowed EB-5 investors to file Form I-485 concurrently with Form I-526E if visas are available. This is called concurrent filing and allows investors to remain in the US while their application is processed. In short, if you are in the U.S. you can stay in the U.S. while you wait for the adjudication of your Form I-526E Petition.
Conditional Permanent Residency
Once the I-485 is approved, the investor becomes a conditional permanent resident which is good for two years. During this time, they need to fulfil the promise they made with the I-526 form to invest in a project that creates US jobs. In order to remove the conditional and become a permanent resident, the investor must file Form I-829 or the "Petition by Investor to Remove Conditions on Permanent Resident Status". Once this is granted, the investor and their eligible family members receive permanent green cards.
Investor Benefits During I-485 processing:
While the I-485 is processing, EB-5 investors may also file a Form I-765, "Application for Employment Authorization" and Form I-131, "Application for Travel Document" to receive an employment authorization and travel permit, which allows them to work in the US and travel while their applications are pending.
I-485 Filing Requirements: Documents to be submitted with your Form I-485
Peachtree Group encourages ourEB-5 investors to consult with their immigration attorney and to read through the Form I-485 form instructions as the specific evidence required with theForm I-485 application may vary depending on the immigrant category you are filing under.
Documents required to be submitted with your Form I-485 include:
- Passport-style photographs
- Government-Issued identity document with photograph
- Birth Certificate
- Inspection and Admission or Inspection and Parole
- Passport page with admission or parole stamp;
- Passport page with nonimmigrant visa; and
- FormI-94 Arrival-Departure Record.
- Evidence of Maintenance of Status
- Original Sealed Medical Exam Results (FormI-693)
I-485 EB5 Filing Costs
As November 2024, the filing fee for Form I-485 is $1,440. The EB-5 investor pays additional filing fees if they are also filing Form I-765 and Form I-131. Be sure to check the USCIS website for the most up to date fee information. In addition, this site has information on what to do while you wait for your green card application.
Prevent unnecessary delays in the adjudication of Form I-485
By following the I 485 form instructions and submitting all the required evidence and supporting documentation at the time of the Form I-485 filing, EB-5 investors may avoid receiving a Request for Evidence (“RFE”) from USCIS.
Tips to prevent receiving an RFE include:
- Form I-693, Report of Immigration MedicalExamination and Vaccination Record
- Only a USCIS designated civil surgeon can perform this medical examination in the United States. The civil surgeon will document the results of the examination on Form I-693. USCIS considers a complete Form I-693 to remain valid for two years from the date the civil surgeon signs the form.
- Due to the limited time validity of Form I-693, EB-5 investors are not required to submit Form I-693 at the time they file their adjustment application but may select to do so in order to avoid a RFE and delay the adjudication process. USCIS cannot approve the Form I-485 without having the report of Immigration Medical Examination and Vaccination Record, so if the Form I-693 is not filed with the adjustment of status, USCIS will have to issue an REF to obtain the medical report.
- File all required initial evidence and supporting documentation as described in the form instructions; and
- Use the current edition of Form I-485
Additional Resources
For more information about the I-526E Form and the EB-5 Immigrant Investor Program, consider consulting the following resources:
- USCIS Website: Access official forms, instructions, and updates on processing times.
- A Simple Guide to EB-5 Immigration by Investment
- Immigration Attorneys: Seek legal advice from professionals specializing in EB-5 cases. If you are not familiar with an immigration attorney, contact Peachtree Group, our team can give you contact information for several knowledgeable lawyers.
- Contact Peachtree Group: Contact Peachtree Group for guidance on specific investment opportunities and compliance requirements.
- Learn more about the Peachtree Advantage
- What is form I-526E for EB-5 investors?
- What is Form I-826 for EB-5?
What is Form I-526E for EB-5 Investors?
Form I-526E is the first petition filed by a foreign investor seeking to secure U.S. permanent residence through an investment. It is the investors promise to fulfill the requirements of the EB-5 program.
Form I-526E, also known as the "Immigrant Petition by Regional Center Investor," is the first petition filed by a foreign investor seeking to secure U.S. permanent residence through an investment in a new commercial enterprise associated with a USCIS-designated regional center. This blog post will provide a guide to Form I-526E, including an overview, documentation required for filing the petition, instructions for completion, costs, processing times, and how Peachtree Group can assist you throughout the application process. This is slightly different than a I-526 form, which is an "Immigrant Petition by Standalone Investor." You can read more here about the two different forms.
Overview of Form I-526E: Your promise to fulfill the requirements of the EB-5 program
The I-526E form is the initial petition filed by an individual seeking an EB-5 visa. This form is submitted to the U.S. Citizenship and Immigration Services (USCIS) and is designed to demonstrate the applicant has made or is actively in the process of making a qualifying investment in a new commercial enterprise (“NCE”) associated with a USCIS -designated regional center, which will benefit the U.S. economy by creating ten (10) full-time jobs for U.S. workers. Approval of the I-526E petition is a crucial step in obtaining an EB-5 visa, which grants the investor and their immediate family members conditional U.S. permanent residency.
In short, Form I-526E is your promise to fulfill the requirements of the EB-5 program.
Evidence to Accompany your Form I-526E Petition
Given the complexity of the Form I-526E application, we advise our EB-5 investors to engage immigration attorneys with EB-5 experience to assist them with the preparation and filing of their I-526E Petition.
Filling out Form I-526E involves several steps, each requiring careful attention to detail. Generally, these steps are done by the EB-5 investor’s immigration attorney. Using the latest version of Form I-526E from the USCIS website, attorneys need the investors to provide personal details, including full name, date of birth, nationality, mailing address, physical address for the past five (5) years, employment history, as well as information about the EB-5 investor’s spouse and children.
The Form I-526E also requires information about the Regional Center and the project application. Peachtree Group provides that information as part of the I-526E Template prepared forEB-5 investors in each of our projects.
Form I-526E also asks for information about the investment. EB-5 investors provide details about the investment amount, the composition of their investment and the source of the invested funds. The EB-5 investors must submit documentation proving the investment funds have been lawfully obtained. In addition, Form I-526E asks for information about visa processing, immigration proceedings, as well as bonafides of persons involved with the Regional Center Program.
Unlike the I-526 Petitions filed before the EB-5 Reform and Integrity Act of 2022 (“RIA”), when the petitions included the offering documents, project related documents and the investor specific documents, I-526E Petitions filed post RIA are mainly comprised of documentation of the EB-5 investors’ lawful source of capital.
The typical documents filed with Form I-526E Petition includes:
1. Investment in a USCIS-designated Regional Center: Post RIA, Regional Centers must file a Form I-956F, Application for Approval of an Investment in a Commercial Enterprise before any EB-5 investors can file their Form I-526E Petitions. As evidence of an invest in a new commercial enterprise for which the Regional Center has filed a Form I-956F, the EB-5 investors should provide a copy of the Receipt Notice or the Approval Notice received from USCIS for the Form I-956F filing. Peachtree Group is providing the Receipt Notice or Approval Notice as part of the I-526E Template petition prepared for the EB-5 investors in each of our projects.
With the Form I-956F filing, Peachtree, through the Regional Center, provides USCIS the full package of the offering documents, the business plan, economic impact report, Regional Center designation letter, as well as numerous other project related documents.
Please note: USCIS specifically asked during one of their engagements not to resubmit the documents filed with the I-956F, but to include the Receipt Notice with the investor’s Form I-526E Petition.
In addition, in Part 4, Information About Your Regional Center and Project Application of the FormI-526E, the EB-5 investors are supposed to provide specific information about the filed Form I-956F, the Regional Center, the NCE and the project, which allows USCIS to associate their I-526E filing with the Form I-956F filed for the project they selected for their EB-5 investment. Peachtree is also provides this information with the Sample Form I-526E, part of the I-526E Template petition.
2. Investment: The EB-5 investors must provide evidence they have invested or are actively in the process of investing the required amount of capital. The EB-5 investors must invest $1,050,000 or $800,000 if the investment is made in a project located in a rural or high unemployment targeted employment area (“TEA”) or an infrastructure project.
The NCE is a for-profit organization formed in the United States after November 29, 1990 for the ongoing conduct of lawful business that receives, or is established to receive, capital investment from immigrant investors. Such evidence may include but is not limited to, copies of wires, bank statements showing amounts deposited into the separate account established for the NCE, evidence of monies transferred or committed to be transferred to the NCE in exchange for shares of stock that cannot be redeemed at the holder’s request, or any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing that is secured by assets owned by the EB-5 investors (other than those of the NCE) and for which the EB-5 investors is personally and primarily liable.
3. Lawful Capital: TheEB-5 investors must provide evidence the capital they have invested or are actively in the process of investing, as well as any funds used to pay administrative costs and fees, were obtained through lawful means.
Such evidence may include but is not limited to:
- Foreign business registration records
- The investors’ tax returns filed within the last seven years in or outside the United States
- Evidence of other sources of capital.
- If the investment funds were gifted or borrowed, the EB-5 investor must submit evidence from the donor or, if other than a bank, the lender demonstrating that such funds were obtained through lawful means and that the funds were gifted or loaned in good faith and were not gifted or loaned to circumvent any limitations imposed on permissible sources of capital, including, but not limited to proceeds from illegal activity.
I-526E Processing Time and Costs
I-526E Processing Time: At the time of this publishing, USCIS has yet to publish their processing time for the new Form I-526E. Invest in the USA (“IIUSA”), the industry trade association for the EB-5 Regional Center Programs, has recently published an analysis of data collected from the EB-5 industry and concluded that the I-526E Petitions associated with a project located in a rural TEA were approved in 10 months on average, with a normal range of 6 to 15 months, while I-526E Petitions associated with a project located in a high-unemployment TEA were approved in approximately 14 months on average, with normal range of 11 to 16 months.
Cost: As of November 2024, the I-526E filing fee is $11,160. If the EB-5 investors are filing their initial Form I-526E on or after October 1, 2022, they must include a separate fee of $1,000 as required by RIA. Be sure to check the USCIS website for the most up to date fee information.
How Peachtree Group Can Help
Navigating the EB-5 application process can be complex. Peachtree Group offers comprehensive support to investors throughout the I-526E petition process, including:
- Consultation and Guidance: Provide expertadvice on qualifying investments and ensuring compliance with EB-5 regulations.
- Document Preparation: Assist in gatheringand preparing necessary documentation to support the EB-5 investor’s I-526E Petition.
- Tracking and Updates: Help monitor theprogress of the EB-5 investor’s petition and provide updates on any changes
Frequently Asked Questions
What is the I-526E Form?
Form I-526E is an application used by foreign nationals pooling their investment with one or more qualified immigrants participating in the Regional Center Program to petition for an EB-5 visa. It demonstrates that the investor has made or is in the process of making a qualifying investment in a new commercial enterprise and meets the program’s requirements for obtaining conditional U.S. permanent residency.
What Do I Need to Fill Out an I-526E?
EB-5 investors must provide personal identification information, details about the investment amount and enterprise, evidence of the lawful source of investment funds.
What Happens After the I-526E Form is Approved?
Once Form I-526E is approved, the next step is consular processing or adjustment of status. If you are outside the U.S., you will attend a visa interview at a U.S. embassy or consulate.
If you are already in the U.S., you can concurrently file for adjustment of status with your Form I-536E Petition. After obtaining an EB-5 visa, you and your immediate family members can become conditional permanent residents, with the conditions removed upon proving that the investment has met the program requirements.
By understanding the Form I-526E Petition, you will be well-prepared to start navigating the EB-5 application process successfully. If you need assistance, Peachtree Group is here to provide expert support and ensure your application is filed accurately and efficiently.
Additional Resources
For more information about the I-526E Form and the EB-5 Immigrant Investor Program, consider consulting the following resources:
- USCIS Website: Access official forms, instructions, and updates on processing times.
- A Simple Guide to EB-5 Immigration by Investment
- Immigration Attorneys: Seek legal advice from professionals specializing in EB-5 cases. If you are not familiar with an immigration attorney, contact Peachtree Group, our team can give you contact information for several knowledgeable lawyers.
- Contact Peachtree Group: Contact Peachtree Group for guidance on specific investment opportunities and compliance requirements.
- Learn more about the Peachtree Advantage
- USCIS Form I-485 for EB5 investors Explained
- What is Form I-826 for EB-5?