For more detailed information about the EB-5 program, contact our Vietnamese speaking EB-5 attorney Nam-Giao Do at ndo@aboutvisas.com.

This memorandum explains information about the Vietnam EB-5 quota retrogression.

Filing the EB-5 I-526 petition (Step 1) creates the filing date called the “Priority Date.” Three things must occur to be scheduled for a visa interview at the American Consul (Step 3) for an immigrant visa:

• The I-526 petition must be approved by USCIS;
• The DS-260 visa application must be processed by the National Visa Center (NVC); and
• The Priority Date for the petition must be current, and a visa number must be available and  assigned to the investor, as well as each dependent family member.

The 10,000 EB-5 visas given out each year are controlled by the State Department’s Visa Office. If there are plenty of visas, there is no separate waiting time for the visa number to become available. The foreign national only waits for the necessary time to process the I-526, the DS-260, and scheduling the consular interview.

If there are more applicants than visas in any given year, then the State Department creates a waiting list for a visa number. This will happen in May 2018, for EB-5 investors from Vietnam. The waiting list is governed by two factors: a) the filing date (“Priority Date”) of the approved I-526; and b) the availability of a visa number. To immigrate, the I-526 filing date (“Priority Date”) must be current on the State Department’s monthly Visa Bulletin. A new Visa Bulletin is issued about the 10th of each month. The May 2018 Visa Bulletin has set a Vietnam EB-5 cut-off date of July 22, 2014. The Visa Bulletin can be found on the Department of State’s website at: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html.

What does this mean?

• When there are more visa numbers than applicants, the Visa Bulletin shows EB-5 visas are current (“C”) and there is no extra time to wait for one’s I-526 Priority Date to show up on the Visa Bulletin to proceed to the Consul (Step 3) for visa issuance
• If there are more applicants than visas available, there will be a cutoff date, which today is July 22, 2014.
• If the investor’s Priority Date is on or before the cutoff date listed on the Visa Bulletin, the investor can proceed as described above as though there is no cutoff date at all.
• If the investor’s Priority Date is more recent than the Visa Bulletin’s listed cutoff date, the investor must wait for the date to be at or before the cutoff date to get one of the 10,000 EB-5 visa numbers given out each year. In this case, Lawler & Lawler checks the Visa Bulletin about the 10th of each month until the investor’s priority date becomes current. Lawler & Lawler then reminds the NVC to allow the investor to proceed with Step 2 and then schedule the interview (Step 3).
• The State Department anticipates that the Vietnam EB-5 quota will advance to August 1, 2014 in June or July 2018, and January 1, 2016 in October 2018.

When the State Department creates a cutoff date, this is called “retrogression” of the visa list. The State Department will advance the cutoff date each month, but if demand is greater than the number of visas, it may again move the cutoff date backwards to regulate the flow of visas throughout the year.

People often ask how much delay visa retrogression will cause. This depends on how far the quota retrogresses and the investor’s Priority Date, as well as when the I-526 is approved. While the State Department has announced that in May of 2018, the visa quota will retrogress to July 22, 2014 for people born in Vietnam, the EB-5 Vietnam quota retrogression:

• Does not mean the EB-5 green card/visa is closing;
• Does not mean America does not want Vietnamese investors;
• Does not mean one must file an EB-5 petition before May or any other date. EB-5 I-526 petitions can be filed with USCIS even when the quota retrogresses.

I predict there will be many alarmist and inaccurate media stories, especially in the Asian press and EB-5 blogs. EB-5 cases will continue as before, but slower in the next years.  

I am often asked how investors can speed up their EB-5 immigration. It sounds trite, but filing the I-526 petition and establishing a Priority Date is critical. The longer an investor puts off filing the I-526, the more visa petitions are filed by others who may be allocated visa numbers first.

Are there any expected changes in the rules? Possibly. There was a bill in Congress to increase the investment amount but it did not pass.

While Congress failed to change the EB-5 program, the USCIS, which is the agency that runs the program, may issue new regulations to increase the investment amount to $925,000 or possibly a higher amount. USCIS published such regulations in January 2017 and can implement then at any time. Thus, it is wise for investors to file their EB-5 I-526 petitions now, while the minimum investment amount remains $500,000.

While delay caused by retrogression is frustrating, its greatest impact is on children who may turn age 21 before they can immigrate with their parents. Some are protected by the Child Status Protection Act (“CSPA”), which freezes their age as a child until immigration. Others are not helped by this law. Please contact me for more on the CSPA.