Visa set asides have emerged as a significant development in the EB-5 investor visa program, offering new opportunities for investors and changing the landscape of immigration strategies. This article aims to shed light on this complex topic, providing a comprehensive understanding of visa set asides and their implications for EB-5 investors.

What are Visa Set Asides?

Visa set asides are a new legislative provision that reserves a portion of the annual EB-5 visa limit for specific categories, namely rural areas, high unemployment areas, and infrastructure projects. These reserved categories account for 32% of the overall employment fifth preference annual limit, while the remaining 68% goes to the unreserved categories.

The EB-5 visa set aside categories offer different investment options for individuals seeking to obtain a visa through this program. The first category is for Rural Targeted Employment Area (TEA) projects, which are situated in places with a small population of fewer than 20,000 people or low population density of less than 50 people per square mile. The second category is for High-Unemployment TEA projects, located in areas with an unemployment rate that is at least 150% of the national average. Lastly, there are Public Infrastructure projects, focused on constructing, renovating, or expanding public infrastructure like roads, bridges, airports, and water treatment plants. To invest in these projects, the minimum requirement is $800,000. These set aside categories allow investors to choose the project that suits their preferences and eligibility criteria for obtaining the EB-5 visa.

Impact on EB-5 Investors

The introduction of visa set asides has significantly altered the EB-5 landscape. Investors now have multiple avenues to consider when filing their petitions. They can qualify for more than one category and file in multiple categories to maximize their chances of obtaining a visa in a timely manner.

For instance, the rural area category, which currently receives 20% of the overall limit, is considered by many to offer the best opportunity. However, the specifics of priority processing for rural investments are yet to be defined by USCIS.

The Visa Bulletin and Final Action Dates

The term “final action dates” is used in the context of the Visa Bulletin, which is a document issued by the U.S. Department of State that provides information about the availability of immigrant visas.

Final action dates are imposed when the demand for visas exceeds the annual limit. These dates are used to determine when a visa applicant can expect to receive their visa. If an applicant’s priority date (the date their visa application was filed) is before the final action date listed in the Visa Bulletin, their visa application can proceed. If their priority date is on or after the final action date, their visa application cannot proceed until the final action date moves beyond their priority date.

The final action dates are projected to remain current throughout fiscal year 2023 and most likely well into the second half of fiscal year 2024 for the new visa set aside categories. However, it’s crucial to note that just because the Visa Bulletin is current today, it doesn’t guarantee there won’t be a visa backlog in the future. The Visa Bulletin can change to reflect increased demand that isn’t accounted for in the current bulletin.

Carryover of Unused Visas

The carryover of unused visas from one fiscal year to the next is a crucial aspect of the visa set asides. The unused numbers from the previous fiscal year are carried over to the current fiscal year, and they must be used within that year. This carryover of unused visas is unique and provides these categories with potentially more numbers, making it less likely that final action dates will be imposed due to the increased supply of visas.

The impact of these provisions on the EB-5 program is still being debated. Some experts believe that the new laws will help to reduce the backlog of unused visas and to make it more likely that EB-5 investors will be able to obtain a visa. Others are more skeptical, arguing that the new laws will not have a significant impact on the issue of unused visas.

It is likely that the impact of the new laws on the EB-5 program will not be fully known for several years. However, the new laws represent a significant step towards addressing the issue of unused visas and making the EB-5 program more efficient and effective.

The Future of Visa Set Asides

While the introduction of visa set asides is a positive development for investors, it’s important to note that the noted “current” status of the Visa Bulletin does not guarantee there won’t be a visa backlog in the future. The Visa Bulletin can change to reflect increased demand that isn’t accounted for in the current bulletin.

However, based on current information and historical processing times, many industry experts believe it’s unlikely that final action dates will be imposed before the second half of fiscal year 2024, and possibly not until the end of that year. This provides a window of opportunity for investors to take advantage of the new visa set asides.

Opportunity for Adjustment of Status

Currently, the visa set aside categories are shown as “current” because the Department of State hasn’t received any indication of i-526 approvals for those categories from USCIS. This creates a window of opportunity for investors to file for adjustment of status concurrently with their i-526 petitions. By filing early, investors can secure an EAD card and advance parole, allowing them to remain in the U.S., travel and obtain a work permit,¬†even if their H1B or F1 status expires. Once the bulletin lists these set aside categories as oversubscribed then the opportunity to file concurrently will no longer carry the same benefits.

In conclusion, visa set asides represent a significant shift in the EB-5 program, providing new opportunities for investors and potentially easing visa backlogs. However, as with any immigration process, it’s essential for investors to stay informed and closely follow updates to navigate this new landscape effectively.

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