Baseline:The future of the Inflation Reduction Act (IRA), signed in 2022 to boost US clean energy with new tax incentives, hangs in the balance. President-elect Trump and some Republicans in Congress have threatened to repeal all or part of it because they don’t agree with the policy, and they need the revenue savings to offset their 2017 Tax Cuts and Jobs Act (TCJA) extensions. The processing of a tax bill next year provides a rare opening for taxpayers who are dissatisfied with the IRA or with the Biden administration tax regulations which implement the IRA.
Pulse Check: Much depends on whether Republicans gain control of both chambers of Congress, enabling them to tap into the vaunted congressional budget reconciliation process and easing their path to legislative change.
What to Monitor: Expect IRA supporters to spend time educating administration officials and congressional offices about the valuable economic and other benefits provided by these tax provisions, particularly in GOP-represented congressional districts and states. Meanwhile, industries from biofuels to hydropower are lobbying for new tax credits in the 2025 tax bill, aiming to secure a place in the complex tax landscape that lies ahead.
Voters delivered a sweeping victory to Donald Trump on Tuesday, setting him up to be the 47th President, and the first since Grover Cleveland in 1892 to be elected to a second non-consecutive term. After a surprise electoral college victory in 2016 and a narrow defeat in 2020, Trump won an outright majority of the national popular vote, the first Republican to do so since George W. Bush in 2004. While his victory helped propel a pickup of at least four Senate seats, wresting back control of the chamber from Democrats, the fate of the House remains uncertain pending the counting of outstanding California mail ballots that could drag out for a week or more.
The victory was driven by disproportionate gains among key demographics and subgroups that will become clear as the dust settles, but the overall pattern was unmistakable: Trump made significant gains coast-to-coast, in urban, suburban, and rural areas, and among virtually every cohort of the electorate. His improvement in the key battlegrounds was actually dwarfed by his gains in the nation’s bluest states, with double-digit swings in places like New York, Maryland and California. In addition to avenging his 2020 loss, the President-elect can now credibly claim a popular mandate for his policies, and quite possibly the congressional majorities to pursue them legislatively.
The restoration of President-elect Trump represents a return to 2016-17, with many of the same conditions seen seven years ago: the potential for a unified Republican government, and a clear commitment from the new administration to roll back the regulatory agenda of the previous administration and institute “America-first” policies when it comes to energy, immigration and trade. The key difference is that while the outcome of the 2016 election caught even the Trump apparatus flat-footed, preparations for President-elect Trump’s second term have been underway for the past three years. Expect a second Trump administration to be savvier and more focused in carrying out its goals, installing key personnel, and implementing policy.
The expectation is that strong policy decisions are ready for implementation on Inauguration Day through Executive Orders that will clearly lay out the regulatory and policy framework for rescinding and replacing the Biden administration agenda. Examination of the Inflation Reduction Act and Infrastructure Investment and Jobs Act mechanisms will certainly occur. President-elect Trump has made clear his intentions to leverage American foreign policy through trade and tariffs rather than military means. Particularly in the energy space, President-elect Trump has pledged a return to American energy dominance backed by a foundation and focus on leveraging domestic traditional energy resources. As observed in his first term, separating campaign rhetoric from implanted policy will continue to be a critical exercise. It is a guarantee that President-elect Trump intends to staff up quickly with political loyalists who have experience in navigating the proclivities of both a Trump administration and Washington bureaucracy, one that he has yet again pledged to dismantle.
President-elect Trump re-assumes the White House with a certain Republican majority in the US Senate and a likely slim majority in the US House of Representatives, providing the ability to implement legislative initiatives while ensuring a full swath of Cabinet-level and senior-level appointees. Legislative action will be necessary for targeting provisions of the Inflation Reduction Act, and while the notion of full repeal exists in rhetoric, it is more likely that Republicans use a more precise approach, preserving legacy provisions that tend to benefit traditional energy sources and targeting those that are more renewable energy focused. However, the slim majorities in each chamber complicate the full breadth of legislation that Republicans can expect to implement. The focus in the early days of Congress will be on the aforementioned Senate confirmation process and resolutions of disapproval under the Congressional Review Act to repeal Biden administration regulations finalized in the last 60 days of the previous Congress, which are both likely to be comfortable party-aligned exercises. The tools of congressional oversight will be trained on assisting the Trump administration in implementing regulatory changes and building a record toward federal agency reforms – such as permitting, federal workforce, and agency re-organization.
Each year, the U.S. Department of State conducts a random lottery drawing to select 55,000 applicants who will be given the opportunity to apply for a Diversity Visa (DV). This selection process is based on a computer-generated random lottery system, ensuring fairness and equal opportunities for all participants.
To qualify, applicants must be a citizen of a country deemed eligible by the U.S. government and have either a high school education or its equivalent or possess two years of work experience in a qualifying occupation.
Applying for the DV Program is an exciting opportunity for those looking to immigrate to the United States. However, even a minor mistake when filling out the entry form can lead to a major complication in the registration process.
By understanding the most common mistakes and learning how to avoid them, applicants can improve their chances of submitting a successful entry to the green card lottery.
The seven “deadly sins” of the Diversity Visa application process
Green card lottery entries are submitted electronically via the Electronic Diversity Visa (E-DV) website during the specified registration period. Although the DV instructions provide detailed guidance for completing the online entry form, there are seven common mistakes — aka “deadly sins” — that could result in delays or even rejection of the application.
1. Submitting multiple entries
The law allows only one entry by or for each person during each registration period. The Department of State uses advanced technology to detect multiple entries. Submissions of more than one entry will be disqualified. Applicants should take the time to review and double-check their information before submitting it.
2. Missing the deadline
No late entries or paper entries are accepted. Applicants must use the E-DV website for submission and must submit their application by the specified deadline.
The online registration period for the 2026 DV Program is open now through Nov. 5, 2024, at 12 p.m. Eastern Standard Time (EST) (GMT-5).
3. Inputting inaccurate personal information
Applicants should ensure their name and surname are entered exactly as they appear on their passport or other identification documents. They should avoid using nicknames or name variations to prevent discrepancies that could raise concerns during the review process. Applicants should also double-check the date of birth and make sure the correct day, month and year are entered. Inaccuracies in this section can lead to delays or even rejection of the entry form.
4. Omitting family members
Applicants should make sure to include all immediate family members in the entry, including a spouse and any unmarried children under the age of 21. Failure to list any eligible family members can result in their exclusion from the program.
5. Using third-party websites for assistance
Be cautious of third-party websites claiming to assist with the entry process. These sites often charge unnecessary fees and may provide inaccurate information. It is recommended to visit the official Department of State website or trusted government portal for the application.
Applicants are encouraged to complete the entry form without a “visa consultant,” “visa agent” or any other facilitator who offers to help. If an agent is used, the applicant should be present when the entry form is prepared so that the correct answers to the questions can be provided and the applicant can retain the confirmation page and unique confirmation number.
6. Leaving entry fields blank
As we outlined above, to avoid rejection or delays applicants should ensure that all required fields are filled out. Missing information or leaving any mandatory fields blank can result in disqualification. It’s important to take the time to carefully review the form and provide accurate and complete responses.
7. Not meeting mandatory requirements
To qualify, an applicant must either have a high school education or equivalent, defined as the successful completion of a 12-year course of formal elementary and secondary education. Alternatively, an applicant must have at least two years of work experience within the past five years in an occupation that requires a minimum of two years of training or experience.
Avoid leaving it all to luck with BAL
Being aware of these common reasons for disqualification and learning how to avoid them can help ensure the Diversity Immigrant Visa Program entry is filled out correctly, providing applicants the chance of selection in the green card lottery.
While this is one route to a green card, there are more paths that don’t rely on luck. For example, a National Interest Waiver (NIW) is an immigrant visa that creates a path to a green card without a job offer or labor certification. The NIW is an alternative to the traditional PERM process and is available to those whose work is deemed to be in the national interest of the United States.
There are many ways to get a green card in the United States and the process generally involves a petition, an application, a biometrics appointment, interviews with immigration officials and decisions that potentially come with requests for more information and documents. The processing time for a green card can also vary from one to six years, depending on demand.
Each year, on Sept. 17, Americans celebrate Constitution and Citizenship Day. While there are many paths to citizenship – born in the U.S. or a U.S. territory, born abroad to U.S. citizens or naturalized – we all enjoy the same advantages, and equally important responsibilities. As we reflect on these responsibilities of citizenship and what it means to be a U.S. citizen, we also explore the numerous benefits and incredible opportunities that U.S. citizenship has to offer.
Benefits of U.S. citizenship
Visa-free travel
There are so many advantages when it comes to travel and the ease of travel when you’re a U.S. citizen. For example, you don’t need to prove potentially every time that you intend to make the United States your home. Permanent residents are required to show roots and ties to the U.S., and that they want to be a permanent resident and make the United States their permanent home. In addition, for lawful permanent residents, additional travel documents may be needed if you have long trips outside the U.S. By being a U.S. citizen, those requirements are no longer necessary.
Traveling with a U.S. passport allows for assistance from the government when abroad, as well as possession of one of the most travel-friendly statuses available today. U.S. passport holders can travel to certain countries without a visa. Being a U.S. citizen and having a U.S. passport opens many doors and removes a lot of visa requirements and other challenges when traveling to other countries.
The right to vote
The Constitution and laws of the United States grant numerous rights exclusively to citizens, with one of the most fundamental being the right to participate in federal elections. This right is particularly significant when compared to many countries where citizens lack a voice in their government and cannot effectively communicate their values and what’s important to them by voting. In contrast, U.S. citizens have the power to influence the nation’s future by voting for representatives and leaders who align with their values and priorities.
Keep the family together
U.S. citizenship provides a strong safeguard against family separation with the privilege of helping immediate relatives, such as a spouse, parents and unmarried children, to obtain permanent residency.
Federal employment opportunities
Most jobs within government agencies require U.S. citizenship, so becoming eligible for federal job opportunities can be a significant public service professional opportunity, including running for office to become an elected official.
Access to federal benefits
U.S. citizens are eligible for certain federal scholarships and grants and access to federal public benefits for basic needs, including Social Security benefits, Medicare and Medicaid. Citizens are also eligible for government-sponsored legal aid, which provides free or low-cost legal assistance to ensure all citizens have access to justice regardless of their financial situation.
The State Department has published the much-anticipated October Visa Bulletin, the first issue of Fiscal Year 2025. Although the new year brings a brand new allotment of visa numbers in all categories, not much has changed since last month, with one exception in the All Countries category.
Below is a summary that includes Final Action Dates and changes from the previous month, but first – some background if you’re new to these blog posts. If you’re an old hand at the Visa Bulletin, feel free to skip the next paragraph.
The Visa Bulletin is released monthly by the US Department of State (in collaboration with US Citizenship and Immigration Services). If your priority date (that is, the date you got a place on the waiting list) is earlier than the cutoff date listed in the Bulletin for your nationality and category, that means a visa number is available for you that month. That, in turn, means you can submit your DS-260 immigrant visa application (if you’re applying at a US embassy abroad) or your I-485 adjustment of status application (if you’re applying with USCIS). If you already submitted that final step and your category then retrogressed, it means the embassy or USCIS can now approve your application because a visa number is again available.
Now for the October VB –
There are few changes from September for China:
EB-1 progresses 1 week to November 8, 2022m and EB-2 3 weeks to March 22, 2020
EB-3 Professionals retrogresses 5 months to April 1, 2020
EB-3 Other Workers stays stalled at January 1, 2017
Likewise, limited movement for India:
EB-1 remains stuck at February 1, 2022, and EB-2 at July 15, 2012
EB-3 Professionals and EB-3 Other Workers both advance 10 days to November 1, 2012
For All Other Countries, no changes except one dramatic one for EB-3:
EB-1 remains current
EB-2 remains stalled at March 15, 2023
EB-3 Professionals leaps almost 2 years, to November 15, 2022, making up last month’s retrogression of 1 year and gaining almost another year
EB-3 Other Workers stays stuck at January 1, 2020
NOTE 1: USCIS will accept I-485 applications in October based on the Department of State’s more favorable Dates for Filing chart, which allows from 2 months to 1 year of additional filing time depending on nationality and category:
Chinese nationals gain almost 2 months to file in EB‑1; a little over 6 months in EB-2; 7.5 months in EB‑3 Professionals; and 1 year in EB-3 Other Workers.
Indian nationals gain 2.5 months in EB-1; 5.5 months in EB-2; a little over 7 months in EB-3 Professionals; and 7 months in EB-3 Other Workers.
Nationals of all other countries may file their I-485s in advance of their priority dates being current by 4.5 months in EB-2; 3.5 months in EB-3 Professionals; and 5.75 months in EB-3 Other Workers.
NOTE 2: The Dates for Filing chart applies only to I-485 applications with USCIS. Immigrant visa applications with US embassies are always based on the Final Action Dates chart.
There are many ways in which the U.S. immigration system is lagging behind those of other countries. We still put physical visas in passports – something Australia stopped doing nearly 10 years ago when they converted to a purely electronic visa system. Our immigration system is predominantly paper-based, with limited options for electronic filings, an area where other countries have fully embraced modern solutions. We also lag behind in other areas including processing times, expedite options, digital nomad immigration pathways, and having an immigration system responsive to changing economic needs for workers in specific occupations and sectors.
For a long time, the U.S. also lagged behind other countries when it came to supporting the immigration of dual-career couples, but that has changed over the last 10 years. This evolution was recently reinforced by the decision in SaveJobs USA v. DHS.
Since 2015, H-4 dependent spouses have been eligible for employment authorization documents (EADs) if they meet certain criteria, including being eligible for a green card but for a long wait due to annual and per-country limitations on green card approvals; criteria most H-4 spouses do not meet until they have been in the US for several years. The plaintiff in Save Jobs USA challenged this extension of work authorization as an unlawful use of the executive power of the Department of Homeland Security (DHS). On August 2, 2024, the Court of Appeals for the D.C. Circuit ruled that this was a lawful use of DHS’s power. Absent an appeal to the Supreme Court, this ends the uncertainty over H-4 EADs. This ruling, combined with a USCIS announcement in April 2024 that extended H-4 EADs for up to 540 days for those waiting for their EADs to be renewed, means that nearly 100,000 H-4 spouses can now pursue careers without fearing unexpected gaps in work authorization.
In addition, since 2021, the US has not required EADs for certain E and L spouses. Although this is not widely known (our team often gets asked about it), starting in November 2021, U.S. immigration agencies began issuing documents that allowed these spouses to work based only on their I-94 entry document, without requiring a separate EAD application. This eliminated lengthy delays and gaps in work authorization that inhibited the ability of dual-career couples to continue their dual pursuits following a relocation to the U.S. With these developments, the US is slowly aligning with other similar economies around the world that allow dependent spouses to work automatically.
There is still more progress that can be made. Currently, the Permits Foundation, an advocacy group focused on “enabling dual careers in the global workplace” characterizes 35 countries as allowing spouses or partners to work freely. The U.S. is included on that list, but the foundation notes that spouses are only allowed to work in certain categories and that work authorizations are often subject to long delays. In the U.S., access to work authorization is not available to all types of dependents. H-4 spouses are excluded until their H-1B spouse reaches a certain point in the green card process (something that takes about 4 years for many, amounting to a major career gap for a trailing spouse). Spouses of J-1 visa holders still need to apply separately for an EAD. Spouses of F-1 student visa holders are not allowed to work, even during the one to three years of post-graduation work authorization granted to international graduates of U.S. universities. We also do not grant any immigration status to unmarried partners. Although many other countries including Canada, the UK, the Netherlands, and Australia, provide an immigration path for non-married partners, there is no option for that when an unmarried couple wants to relocate together to the US (resulting in some interesting conversations and sometimes resulting in the complete cancellation of a proposed relocation). Overall, expanding work authorization to married (and even unmarried) partners of the workers already employed in the US in various non-immigrant categories could be a boon to the labor market. Our team is often asked how they can find new sources of skilled an unskilled workers to fill open positions. Expanding this avenue of work authorization would enable this latent talent pool, many of whom are already here in the US, to enter the US workforce.
Bottom line, if you are an accompanying spouse in one of the limited categories of dependents who do not need separate employment authorization (E or L), rejoice. You are probably be able to work in the US without needing anything more than the entry document issued when you arrive. If you are not one of those lucky ones, review your options with immigration counsel, and hope the U.S. continues to catch up with other immigration destinations.
The U.S. State Department and U.S. Citizenship and Immigration Services announced that they have issued all legally available visas in the unreserved EB-5 Immigrant Investor Program categories for Fiscal Year 2024. Embassies and consulates have been directed to not issue immigrant visas in these categories until the new fiscal year (FY 2025) starts on Oct. 1, 2024.
As discussed in our recent blog post on EB-5 filing strategies, 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 categories. Of the 140,000 immigrant visas available annually, the government allocates approximately 10,000 to the EB-5 investor visa program. The visas are also subject to per-country visa quotas. The Immigration and Nationality Act sets the annual limit for EB-5 visas at 7.1% of the worldwide employment limit, of which 68% is available for unreserved visa categories (C5, T5, I5, R5, RU, NU). Additionally, the EB-5 Reform and Integrity Act of 2022 makes unused EB-5 reserved visas from FY 2022 available in the EB-5 unreserved categories for FY 2024.
Among the multiple executive actions the White House announced on June 18, 2024, was one stating it was taking steps to facilitate the process for certain Deferred Action for Childhood Arrivals (DACA) recipients to obtain work visas/status. DACA was created in 2012 by President Barack Obama as a means for immigrant youth who met certain eligibility requirements to qualify for work authorizations and obtain “deferred action.”
While DACA protection has enabled hundreds of thousands of individuals to legally work and live in the U.S., the program has faced considerable uncertainty since 2017, when the Trump administration initially sought to terminate the program, but was prevented from doing so in the federal courts.
The program continues to face legal challenges, and additional litigation before the U.S. Supreme Court is likely. Fundamentally, DACA is not a legal status – the reliance on “deferred action” simply reflects the U.S. Department of Homeland Security’s (DHS) decision not to bring immigration removal proceedings against a specific individual. While many DACA recipients and their employers have since sought to transition to a work visa or other legal status that Congress specifically established in the Immigration and Nationality Act (INA), the process for doing so is uncertain, expensive and cumbersome.
Since DACA recipients either entered without authorization or were out of status when they received DACA protection, they are typically ineligible for a transition to a lawful status within the U.S.
Instead, they are required under immigration law to “consular process” outside the U.S. and obtain a work visa at a U.S. consulate. The individual’s departure from the U.S. could trigger removal bars (similar to those described above), requiring the individual to obtain a temporary waiver of inadmissibility from the government. These waivers, known as “d3 waivers” based on the section of the INA to which they relate, can take months to obtain and the outcome of such a waiver is not certain. These cumulative issues have chilled the interest of many employers and DACA recipients in pursuing these waivers.
On July 15, 2024, the U.S. Department of State made changes to the Foreign Affairs Manual (FAM), which is controlling guidance for consular officers at U.S. Consulates on factors to consider when adjudicating waiver requests. The three primary changes that the DOS made to 9 FAM 305.4-3 are:
Expanding the factors that would have a positive effect on U.S. public interests in granting a waiver to include circumstances “where the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field related to the education that the applicant attained in the United States….” These changes noted in bold are clearly designed to benefit many DACA recipients.
The second change creates a mechanism for a waiver applicant whose request is denied by a consular officer to request State Department review in circumstances involving “significant public interest,” which in turn cross-references the factors above that are of particular benefit to DACA recipients.
The FAM was also updated to reflect the ability of DACA recipients who have graduated from an educational program in the United States or are seeking to reenter the U.S. with a visa as beneficiaries of an offer of employment to request an expedite of the waiver request. This change is particularly critical as one of the greatest challenges that DACA recipients face when seeking a waiver is the uncertain adjudication period, which often stretches for months.
Collectively, these updates are significant and will benefit several DACA recipients who are beneficiaries of employer sponsorship. These pathways also create a mechanism for U.S. employers to transition DACA recipients from DACA, with its increasing uncertainty, to a more stable work visa. DACA recipients should, of course, plan prudently if considering a departure from the U.S. to apply for such a waiver and should also apply for advance parole before departing the U.S. so as to provide a mechanism for reentering the U.S. if the waiver request is denied.
According to the recent publication of the Spring 2024 regulatory agenda, the Biden administration has the H-1B modernization rule, adjustment of status proposal and seasonal/temporary worker regulations targeted for publication by the end of 2024. The next step toward Schedule A reform will occur this August.
H-1B modernization: The Department of Homeland Security proposed to amend regulations governing H-1B specialty occupations and certain F-1 students. DHS accepted comments on its wide-ranging proposed rule until Dec. 22, 2023 and finalized and implemented H-1B registration selection provisions in April 2024. The agency says it “continues to consider the suggestions made in public comments received as they relate to the other proposed provisions discussed in the Oct. 23, 2023 NPRM, and intends to finalize the remaining provisions in one or more actions.”
Lawful permanent residence (adjustment of status proposal): To reduce processing times, improve agency partnerships and promote efficiencies in visa availability, DHS plans to amend regulations governing adjustment of status to lawful permanent residence in the U.S. including permitting concurrent filing of a visa petition and the application for AOS for the employment-based fourth preference category. The target date for publishing the proposal is now August 2024. After publication, there will be a public comment period.
Schedule A: The Department of Labor is considering updating Schedule A and opened a Request for Information period on Dec. 21, 2023 that was extended through May 13, 2024. During this period, the public provided input on whether Schedule A served as an effective tool for addressing current labor shortages, and how DOL can create a timely, coherent, and transparent methodology for identifying science, technology, engineering and mathematics and other occupations that are experiencing labor shortages while ensuring the employment of foreign nationals does not displace U.S. workers or adversely affect their wages and working conditions. According to the regulatory agenda, DOL aims to complete analysis of the comments in August 2024.
H-2 modernization: DHS published a proposal for modernizing H-2 programs on Sept. 20, 2023 intended to reduce inefficiencies, enhance pay protections and address “aspects of the program that may unintentionally result in exploitation or other abuse of persons seeking to come to this country as H-2A and H-2B workers.” Comments were accepted through November 2023 and final action is targeted for November 2024.
Nonimmigrant workers: DHS plans to propose amendments to regulations governing certain nonimmigrant workers including updating the employment authorization rules regarding dependent spouses of certain nonimmigrants; increasing flexibilities for certain nonimmigrant workers and modernizing policies and procedures for employment authorization documents. The targeted publication date is now January 2025.
Immigrant worker reforms: DHS also plans to propose to amend regulations governing employment-based immigrant petitions in the first, second and third preference classifications. According to the regulatory agenda, proposed rule amendments would include updating and modernizing provisions governing extraordinary ability and outstanding professors and researchers; clarifying evidentiary requirements for first preference classifications, second preference national interest waiver classifications and physicians of national and international renown; ensuring the integrity of the I-140 program and correcting errors and omissions. Publication of the proposed rule is now targeted for June 2025.
BAL Analysis: While these regulations would have a significant impact on immigration programs, they are at different stages in the rulemaking process, and policies are still being formulated. Proposed regulations are subject to a public notice-and-comment period, during which members of the public may submit feedback. BAL continues to monitor progress on the regulatory agenda and will provide clients with updates on individual regulations as they move through the rulemaking process.
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.”)
On June 18, the executive branch announced one of the most significant executive actions affecting U.S. immigration since establishing the Deferred Action for Childhood Arrivals (DACA) program in 2012
The family unity action would allow many undocumented spouses of U.S. citizens to obtain green cards in the U.S. without needing to depart the country
The DACA provisions would make it easier for some DACA recipients to qualify for a work visa
On June 18, 2024, the Biden administration announced one of the most significant executive actions promoting family unity and streamlining the process for Deferred Action for Childhood Arrivals (DACA) recipients seeking to transition to work visas using existing legal authority.
Family Unity and Parole in Place for the Undocumented Spouses of U.S. Citizens
The executive actions initiate a process that will allow certain non-citizen spouses of U.S. citizens to apply for their green cards without leaving the U.S. Currently, a U.S. citizen can sponsor their non-citizen, foreign-born spouse for permanent residency by filing an I-130 immigration petition for the individual, regardless of their immigration status. Immigrant visas are available in this category without backlogs, unlike many other categories. However, undocumented spouses who didn’t enter the U.S. legally typically don’t qualify under current law to complete the permanent residency process in the U.S. In these situations, the spouse typically must depart from the U.S. to complete the process at a U.S. embassy or consulate abroad, thereby triggering a 10-year penalty to lawful readmission under immigration law unless waived due to hardship to a qualifying relative. This process is lengthy, uncertain and expensive, discouraging many of these families from pursuing these steps.
To provide relief, the Biden administration proposes to use the humanitarian parole authority of the executive branch to place qualifying individuals in a legal “parole,” which would then allow them to apply for adjustment of status. Approximately half a million spouses and stepchildren of U.S. citizens in “mixed-status” households could benefit from this change, if implemented.
The availability of this program, also known as Parole in Place, for qualifying non-citizen spouses will be formalized through a rule-making process and publication in the Federal Register. However, the subsequent announcement by the Department of Homeland Security (DHS) on June 18 included the following specifics for individuals to qualify:
Continuously resided in the U.S. for 10 years since June 17, 2014
Physically present in the U.S. on June 17, 2024
Legally married to a U.S. citizen as of June 17, 2024
Entered the U.S. without admission or parole and do not currently hold any lawful immigrant or nonimmigrant status
Have not been convicted of any disqualifying criminal offense
Do not pose a threat to national security or public safety
Merits a favorable exercise of discretion
This program would also include non-citizen children of these spouses (i.e., stepchildren).
All requests will consider the applicant’s previous immigration history, criminal history, the results of background checks, national security, and public safety vetting, and any other relevant information available to or requested by the U.S. Citizenship and Immigration Services.
Employers may stand to benefit from a substantial new group of individuals who will be work authorized and whose statuses could be legalized in the U.S. if this program proceeds.
DACA Recipients and Undocumented College Students
The administration subsequently announced that it is also taking additional steps to facilitate the process for DACA recipients to obtain work visas. DACA was created in 2012 by President Barack Obama as a means for immigrant youth who met certain eligibility requirements to qualify for work authorizations and obtain “deferred action.” While DACA protection has enabled hundreds of thousands of individuals to legally work and live in the U.S., the program has faced considerable uncertainty since 2017, when the Trump administration initially sought to terminate the program but was prevented from doing so in the federal courts.
The program continues to face legal challenges, and additional litigation before the U.S. Supreme Court is very likely. Fundamentally, DACA is not a legal status – the reliance on “deferred action” simply reflects DHS’ decision not to bring immigration removal proceedings against a specific individual. While many DACA recipients and their employers have since sought to transition to a work visa or other legal status that Congress specifically established in the Immigration and Nationality Act (INA), the process for doing so is uncertain, expensive and cumbersome. Since DACA recipients either entered without authorization or were out of status when they received DACA protection, they are typically ineligible for a transition to a lawful status within the U.S.
Instead, they are required under immigration law to “consular process” outside the U.S. and obtain a work visa at a U.S. consulate. The individual’s departure from the U.S. could trigger removal bars (similar to those described above), requiring the individual to obtain a temporary waiver of inadmissibility from the government. These waivers, known as “d3 waivers” based on the section of the INA to which they relate, can take months to obtain and the outcome of such a waiver is not certain. These cumulative issues have chilled the interest of many employers and DACA recipients in pursuing these waivers.
In the coming weeks, the administration is expected to announce additional steps to streamline the availability of d3 waivers. The U.S. Department of State will announce changes to its process for granting such waivers to DACA recipients through updates to the Foreign Affairs Manual, and DHS has indicated that it will adopt the State Department’s policy changes. These steps, if implemented, are very good news for many employers and the DACA recipients that they employ by providing a more efficient, robust and reliable process for transitioning DACA recipients to a more stable and lawful status in the U.S.
