On October 29, 2024, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a Freedom of Information Act (FOIA) notice, inviting federal contractors to respond to FOIA requests that the OFCCP received related to federal contractors’ 2021 Type 2 EEO-1 Consolidated Reports. These reports, required of federal contractors and subcontractors with at least 50 employees, contain data critical to the government’s diversity efforts consistent with anti-discrimination mandates under Title VII and Executive Order 11246. Contractors have previously relied on FOIA Exemption 4 to protect against disclosing sensitive commercial information that could impact competitive positioning, but in late December 2023 as previously reported here, a federal court ruling concluded that certain demographic data did not qualify as confidential under FOIA Exemption 4. That court decision may spur an increase in FOIA requests for EEO-1 reporting information.
Contractors who wish to object to the disclosure of their EEO-1 reporting information must do so via OFCCP’s online portal, email, or mail on or before December 9, 2024. Per the OFCCP’s notice, contractors can object to releasing their 2021 EEO-1 Type 2 data by providing evidence showing the data satisfies FOIA Exemption 4. To do this, contractors should:
Specifically identify the objectionable data;
Explain why this data is commercial or competitive to render it confidential;
Outline the processes the contractor has in place to safeguard the data;
Identify any prior assurances or expectations that the data would remain confidential; and
Detail the damage that would occur if the data were disclosed by conducting assessments to see how disclosure would impact business operations.
In addition to raising timely objections to disclosure of data, contractors should also implement clear policies to maintain a consistent approach to data confidentiality. Specifically, contractors should be thoughtful and consistent as to how they define confidential information and the protection measures they take related to such information.
FOIA requests and court decisions in this space will likely continue to make striking a balance between government transparency and protecting contractors’ confidential business information more difficult. To navigate these changes, federal contractors should remain vigilant by staying informed, preparing objections to FOIA requests, and consulting with legal counsel to ensure compliance with this evolving area of law.
The passage of the EB-5 Reform and Integrity Act (RIA) in 2022 resulted in the most significant changes to the EB-5 investor immigrant visa program since its establishment in 1990. Among the most notable changes implemented through the RIA was the creation of new “set aside” visa categories for EB-5 investors. These set-aside categories allocate a certain amount of the 10,000 EB-5 immigrant visas available each year to investments in certain areas or projects, which include:
20% reserved for qualified immigrants who invest in a rural area;
10% reserved for qualified immigrants who invest in a ‘targeted employment area’ (TEA), which meets the requirements that apply to areas of high unemployment (unemployment rate of at least 150% of the U.S. national average); and
2% reserved for qualified immigrants who invest in infrastructure projects.[1]
Additionally, the RIA allows for the concurrent filing of the investor immigrant visa petition on Form I-526E and adjustment of status (AOS) filing on Form I-485 for those present in the U.S.[2] While certain types of EB-5 investments filed prior to the passage of the RIA remain subject to visa bulletin backlogs, which particularly impact petitioners and dependent family members born in countries with the highest demand for immigrant visas (e.g., mainland China and India), the Visa Bulletin has not yet announced a visa backlog for any of the set aside categories established by the RIA.
With the establishment of the set-aside categories, the availability of EB-5 immigrant visas is now subject to multiple factors, in addition to country of birth, under the Department of State’s Visa Bulletin, which dictates an applicant’s ability to apply for an immigrant visa or concurrent AOS (if in the U.S.) based on per-country limitations released monthly by the Department of State (DOS).[3] As the visa bulletin is based on visas approved visa petitions and the petitioners’ countries of birth (as opposed to petitions filed with U.S. Citizenship and Immigration Services (USCIS) and currently in process), investors understandably are faced with a level of uncertainty when strategizing the timing of their investments and associated petition filings. This is due to the uncertain nature of the continued availability of immigrant visas, which can retrogress with little notice based on the DOS’ contemporaneous issuance of immigrant visas under the EB-5 program. This post will outline data and strategies available to investors to clarify questions related to potential changes to the visa bulletin that may impact EB-5 immigrant visa availability in the coming months. As the progression of the Visa Bulletin is subject to internal data shared between USCIS and the DOS, as well as the DOS’ internal visa issuance metrics, some level of obscurity and uncertainty should be accounted for when planning for immigrant visa petition filing, but the below is meant to help address and account for these inherent uncertainties.
Background on the Visa Bulletin
In connection with the U.S. government’s policy imperative to encourage a diverse pool of immigrants to the U.S., family- and employment-based immigrant visas are subject to a specific allocation of available visas every federal fiscal year. A total of approximately 140,000 immigrant visas are available every fiscal year for employment-based immigrant visas, including the EB-1, EB-2, EB-3, EB-4, and EB-5 immigrant visa categories. Of the total of 140,000 immigrant visas available annually, approximately 10,000 are allocated to the EB-5 investor visa program, which are also subject to the below per-country visa quotas.
To that end, no one country (based on the applicant’s country of birth) can be allocated more than approximately 7.1% of all available immigrant visas.[4] Importantly, the DOS recently revised its interpretation of the statutory language on the 7.1% per country limit to clarify that it applies in any preference only if a country’s use of visas exceeds 7.1% of all employment-based preferences together.[5] For example, the 7.1% per country limit for Vietnam will only start in the EB-5 category if Vietnam were to reach the 7.1% limit for the overall 140,000 employment-based visas available. In the past, investors born in Vietnam and Taiwan also have been high users of EB-5 visas; however, with this new interpretation by DOS, they will likely never be subject to a per-country limitation for EB-5 again given that these countries generally have never reached 7.1% of the overall 140,000 employment-based immigrant visas.
The above only tells part of the story on immigrant visa allocation. This is because in addition to the total of 140,000 employment-based immigrant visas allocated yearly to all countries, unused visa numbers from prior fiscal years (i.e. immigrant visas that are available to those born in under-subscribed countries, but not utilized) roll over for use by applicants of over-subscribed countries according to priority date and availability within the immigrant visa preference category.[6] Moreover, unused family-based immigrant visas may also be utilized to address excess demand in employment-based categories.[7] While the specific number of unused immigrant visas varies considerably year to year, there tends be some available unused family-based visa numbers from under-subscribed categories each federal fiscal year based on the most recent data made available by USCIS and DOS.[8] Additionally, unused EB-5 numbers from the unreserved ‘general pool’ of EB-5 immigrant visas available yearly (based on worldwide applicant demand), are reallocated to over-subscribed EB-5 categories, including the above-referenced EB-5 set-aside categories created post-RIA implementation.[9]
EB-5 Investor Immigrant Program Data
With the dynamic nature of the immigrant visa allocation process in mind, there is no simple, readily available formula that can help predict the numbers of EB-5 immigrant visas that may be available in a given fiscal year, nor one that can precisely predict how soon retrogression may impact the EB-5 program, particularly in connection with I-526E petitions filed by investors born in traditionally high-demand countries, like China and India. This process is made difficult because USCIS and the Immigrant Investor Program Office (IPO) have not released important statistics to the public that would allow investors to accurately predict how long of a backlog may form in the various set-aside categories. However, we do have some data.
To solve for the lack of government-released data, stakeholders have filed Freedom of Information Act (FOIA) requests that provide more nuanced data on the government’s current processing volumes. Notably, recent data disclosures made available through FOIA requests found a significant increase in demand for the rural set-aside category, but demand remains “below the needed level to absorb the near-term annual visa supply.” The data released also showed that demand for high unemployment TEA set-aside continued to increase through the end of 2023, which may result in a backlog for that specific set-aside category.[10] As expected, demand remains particularly high for immigrant applicants born in mainland China; the below chart published in connection with the data disclosed pursuant to FOIA provides further insight on the processing volumes:
TOTAL NUMBER OF I-526/I-526E FILED FROM APRIL 1, 2022,TO NOVEMBER 2023, BY TEA CATEGORY AND COUNTRY OF CHARGEABILITY (LATEST STATS AS PER AIIA FOIA DATA)[11]
China
India
Taiwan
Rest of World
Total
Total %
Rural
767
174
18
134
1,093
32%
High unemployment
976
375
209
625
2,185
63%
Infrastructure
0%
Multiple TEA categories
7
3
5
16
0.5%
Not TEA
26
21
6
97
150
4%
Total
1,776
573
233
861
3,444
100%
Total %
52%
17%
7%
25%
100%
While the data above is subject to change and specifically reflects government filings through November 2023, and spanning multiple federal fiscal years (2022-23), it shows that about two times as many high unemployment set-aside I-526E Petitions were filed as compared to rural area set-aside I-526E Petitions. However, in June 2024, USCIS also released their January to March 2024 form data, which revealed that an additional 1,810 I-526E Petitions had been filed with USCIS over that three-month period, leaving 3,672 I-526E Petitions pending as of March 31, 2024.[12]
Importantly, the quarterly USCIS data shows a huge number of new I-526E Petitions were filed during Q2 2024. Half of all I-526E Petitions pending as of the date of this blog were filed just in Q2 of 2024. USCIS has not released any statistics to show the breakdown of I-526E Petitions filed in the high unemployment or rural area set aside categories. Anecdotal evidence from stakeholders and projects seems to show a strong uptick in the demand for rural area projects, and it is possible that many of these new I-526E Petitions were for rural area set-aside visa numbers. More data from USCIS will be required on this point to give investors a more accurate picture on visa wait times in both rural area and high unemployment set-aside projects.
Moreover, the USCIS Q2 2024 data shows that the agency only completed review of 356 I-526E Petitions this fiscal year. The statistics do not break down completions by approvals or denials. Given the small number of case completions during this fiscal year, no visa retrogression has been announced in the Visa Bulletin because an insufficient number of I-526E Petitions have been approved to necessitate announcement of retrogression for any country.
In fact, at a recent conference, the DOS indicated that there is a record amount of EB-5 visas available for this year and predicted again for next year. Specifically, DOS is predicting that there are more than 14,000 unreserved EB-5 visas and more than 8,000 set-aside visas available in FY 2024, and that there will be more than 11,000 unreserved EB-5 visas and more than 6,800 set-aside visas available in FY 2025. Together, that is more than 14,800 set-aside visas over this fiscal year and next, split between rural and high unemployment according to their percentages. This would mean approximately 9,800 rural visas and 4,900 high unemployment EB-5 visas are available over this fiscal year and next, with additional high numbers remaining available in the unreserved EB-5 category. Even assuming that each petitioner also brought two dependent applicants with them to the U.S., the sheer number of EB-5 visas available in these categories over this year and next would provide many immigrant visa numbers for applicants and their dependents in both set-aside categories, and drastic retrogression wait times are not yet predicted.
Additionally, note that the data provided reflects raw numbers of petition filings and does not take into account potential roll overs of additional unused immigrant visas, as noted above. In addition, applicants born in under-subscribed countries, like Vietnam and Taiwan, with robust demand for EB-5 immigrant visas that may qualify for the set-aside category, still have the option to choose to process under the general pool of unreserved EB-5 visa numbers, thereby freeing up additional availability under the reserved high-unemployment and rural TEA set-aside categories for individuals born in mainland China. This selection is typically made at the time that the National Visa Center (NVC) processes the immigrant visa application for applicants based outside of the U.S.
Key Takeaways
There are a record number of EB-5 visas available to applicants in both the high unemployment and rural area set-aside categories in FY 2024 and FY 2025. While stakeholders need more data from USCIS on the breakdowns of pending I-526E Petitions between the high unemployment and rural set-aside categories, there is a record number of visas available and extensive backlogs are not expected to occur like those experienced by pre-RIA I-526 Petitions.
File the I-526E Petition and associated AOS applications concurrently if possible. Although visa numbers remain available in the set-aside categories even for traditionally high-demand countries, the dynamics associated with the DOS Visa bulletin may result in retrogression with little notice. Filing concurrently where eligible can provide multiple benefits in the event of retrogression, including:a. Locking in dependent child’s age under chart A or chart B of the DOS Visa Bulletin, which under the Child Status Protection Act (CSPA) allows for a tolling of age progression while the petition is in process and based on the unavailability of a visa number; and
b. Obtaining short-term U.S. immigration benefits that allow for work (employment authorization document (EAD)) and travel (advance parole (AP)) while the USICS processes the AOS filing.
Individuals born in under-subscribed countries with qualifying investments in rural or high-unemployment TEAs should consider opting for processing under the general unreserved pool where possible. This would allow for use of additional reserved immigrant visas in the set-aside categories by those born in countries with higher demand for EB-5 immigrant visas, such as China and, potentially, India.
Monitor visa bulletin progression and available government data. It will remain important to continue monitoring Visa Bulletin releases and planning for potential retrogression. As noted above, while the set-aside categories created under the RIA remain broadly available for immigrant visas and concurrent AOS processing, conditions may change with little notice as the government processes its backlog of filed EB-5 petitions or if USCIS speeds up its processing of I-526E Petitions.
[8] See, e.g., “Employment-Based Adjustment of Status FAQs,” USCIS, May 20, 2024 (“DOS determined that the FY 2023 employment-based annual limit was 197,091, due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023. In addition, 6,396 EB-5 visas carried over from FY 2022 to FY 2023 in the reserved subcategories.”)
The Freedom of Information Act (“FOIA”) can be a very powerful tool. It provides unqualified right to access certain public records. Patent attorney Gary Shuster used it to file a FOIA request (Request No. F-17-00099) with the USPTO on January 26, 2017, seeking the following:
1. Any document written by or on behalf of Michelle Lee constituting a resignation from office, a request to withdraw a resignation from office, or a request to refrain from her position.
2. The most current document identifying the Director of the USPTO or, if there is no director, the acting director of the USPTO.
3. Any written instructions received between January 20, 2017 and the date of this request regarding deletion of any data from web sites operated by or on behalf of the USPTO, including USPTO.com.
To spare the USPTO having to compile and produce all documents responsive to this request, Shuster offered: “In the alternative, you may satisfy this request by simply answering the following question: Who is the current director or acting director of the USPTO?”
On February 24, 2017, USPTO FOIA specialist Karon Seldon sent Shuster a letter stating that the agency was extending the time limit, citing FOIA provisions allowing extensions in “unusual circumstances.” This is a FOIA provision which provides an extension may be claimed in usual circumstances where there is a “need for consultation … with another Federal Agency having a substantial interest in the determination of the request.” This is likely to give a bit of breathing room to determine how the Trump administration will affect the decision.
The new deadline for response is March 10, 2017. Although it’s currently a bit of a mystery, we’ll see tomorrow who will be named to the Director role.
