Okay, my Vietnamese (and Indian) friends and investors, take a deep breath and let me explain why the new August Visa Bulletin is neither surprising…nor as horrible as it looks. YES, it is true that the just-released bulletin appears to add a substantial amount of backlog time to EB-5 applicants from Vietnam and India, but remember: the monthly Visa Bulletin is a static snapshot in time of the current projections, it is NOT evidence of what will actually happen in the future!
The July Visa Bulletin showed the following final action dates (FADs, processing timeline estimates, really) for the 3 countries looking at EB-5 backlogs:
China: October 1, 2014
Vietnam: October 1, 2016
India: May 1, 2017
Suddenly, the new August bulletin shows the same final dates for all three countries: October 15, 2014. Why? Well, unlike other times when the State Department provides clear explanations as to changes in the bulletin, this one doesn't explain anything. But I attribute this development to several factors:
- The fiscal year (FY) for the US government runs from October 1st through September 30th. As that year ticks away, each country uses up its annual allocated supply of EB-5 slots; we are now in the final quarter of the 2019 FY so the slots for the backlogged countries are either used up or almost gone.
- Remember: while each country has its own EB-5 quota under the current law, once a backlog begins, the controlling element is the priority date. We'll need to see what the new regulations have to say on the subject but under current law, a Chinese applicant with an earlier priority date will get his/her EB-5 before a Vietnamese or Indian national with a later priority date, even though Vietnam and India became backlogged much later.
- The State Department's projections on priority and FADs are not independent “islands” for each visa category; instead, the allotment of immigrant visas is broken down and divided between ALL the family and business immigrant visa categories. Category A might be assured of X% of total visas while Category B might have Y%, but if Category A doesn't use up all of X, the overflow gets allocated to Category B, then to C, etc.
I am oversimplifying this as it is a very complex mathematical process, but the point is that there is a lot MORE to these numbers than “just EB-5”. Estimating future visa waiting times rests not only on these “snapshot” monthly mathematical calculations by the State Department but on numerous uncertain variables ranging from visa usage in other business categories to pending regulatory changes to pending litigation (intended to correct the calculation of EB-5 numbers to what Congress originally intended, i.e., 10,000 investors…not counting family members, as has been done to date.
Remember: between all the frantic marketing by Big EB-5 whose TEA scamming will soon be up, corrupt migration agents, and outright false blogging, it's not just the Vietnamese who are wary: USCIS received a total of 580 I-526s in the 2nd quarter of this year….that's less than they've received in any quarter in the past 9 years! I remain hopeful that at the end of the day, our Vietnam EB-5 investors will see substantially shorter wait times than are currently reflected in these static predictions. One thing is for sure, though: the day of the $500,000 TEA EB-5 is nearly gone, and AVS Regional Center, as a “ONLY TRUE TEA” Regional Center, is among the handful of Regional Centers which will not be adversely affected by the new regulations.
Attorney José E. Latour
