US visa woes: EB-5 is a fast-track alternative for getting US citizenship than EB-2 and EB-3

The visa backlog, or visa retrogression, is significantly worse for Indian nationals than for other countries.

In the intricate tapestry of US immigration, the EB-5 visa programme is emerging as a strategic alternative amidst unprecedented delays for Indians in the employment-based EB-2 and EB-3 visa categories. The lengthy delays, coupled with some significant benefits under the new EB-5 law, called the Reform and Integrity Act (RIA), have ignited renewed interest in the EB-5 programme from investors seeking an efficient and safe pathway to permanent residency in the US.

Understanding the EB-2 and EB-3 visa delays

Unprecedented backlogs in the EB-2 and EB-3 categories, designed for professionals with advanced degrees and skilled workers, respectively, have become a major concern. Factors such as increased global demand, policy changes, and economic shifts contribute to these delays. Recent data suggests that Indian applicants may face wait times ranging from 20 years to a shocking 128 years, necessitating a re-evaluation of alternative immigration options and placing the EB-5 programme in the spotlight.

Severe visa retrogression for India

The visa backlog, or visa retrogression, is significantly worse for Indian nationals than for other countries. The number of Indians in the queue for green cards is estimated at a staggering 1.1 million, with the majority in EB-2 and EB-3 categories. This adversely impacts the wait times for Indians to get a visa.

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The US Department of State releases a monthly visa bulletin with important details, including cut-off dates for visa processing, and other relevant details.

Immigration visa applicants can only apply for permanent residency in the US if their priority date is earlier than the listed cut-off date.

As of December 2023, the cut-off date for EB-2 visas is July 15, 2022, for all countries except India and China. India's cut-off date is January 1, 2012. The cut-off date for EB-3 visas is December 1, 2021, for all countries except China and India. India's cut-off date is May 1, 2012.

With nearly 400,000 approved Indian nationals awaiting one of 2,800 EB-2 visas per year, simple math tells us that recent applicants may have to wait up to a staggering 128 years for an available EB-2 visa, or 41 years for an EB-3 visa.

Does this wait period (arrived at mathematically) of 128 years mean new applicants will never get an EB-2 visa? No, it doesn't mean they will never get a visa. The extreme wait time is a result of a backlog and high demand. As the USCIS processes applications and the demand stabilises, the cut-off dates may move forward, reducing the projected wait times. It's an estimation based on the current backlog and may change in the future.

EB-5: A strategic alternative amidst delays

Currently, the industry is seeing a significant pickup in interest in the EB-5 programme from Indian applicants who are in the US on an EB2/EB-3 visa. Most of them have been here for many years and have established their families in the US. They have become frustrated by the long wait and are investigating EB-5 as a way to secure the future for themselves and their families in the US.

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Despite the high investment amount of $800,000, the requirements for EB-5 are relatively straightforward. The programme does not have an age, language, or skills requirement and it provides EB-5 applicants the freedom to live, work, and study anywhere in the US. Applicants have the freedom to change jobs or start their own business which is particularly attractive to those on an EB-2 or EB-3.

Benefits of EB-5 over EB-2 and EB-3

1. A Certain path to residency: The indefinite wait times that EB-2/EB-3 applicants face create uncertainty, especially considering these are non-immigrant work visas. Losing a job could require finding another company to take over the visa or leaving the country, and finding a new sponsor company might be challenging. The EB-5 programme provides a more certain path, typically taking around 3-4 years to permanent residency.

2. Concurrent filing advantage: Under the RIA, EB-5 investors can file their petition, called the I-526E, and concurrently apply for adjustment of status to permanent resident (I-485). This is a significant benefit that was not available under the prior law. This filing strategy enables applicants to apply for work and travel authorisation while waiting for the green card to be processed, essentially providing the lion’s share of the benefits of the green card within a couple of months. This enables EB-2/3 applicants the freedom to work anywhere or start their own business while they wait for their green card.

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3. Faster processing options: Under the RIA, priority processing is available for EB-5 investors in rural projects and is structured to generate employment opportunities for local workers while contributing to the overall revitalisation of the rural community.), ensuring a faster 1–2-year processing time. Expedited processing is an even faster option available to investors in national interest projects. A rural EB-5 project involves foreign investors contributing capital to a business or development initiative located in a rural area of the US. These projects, often in sectors like agriculture or infrastructure, aim to stimulate economic growth and create jobs in less populated and economically challenged regions. For instance, an agricultural development project in the rural Midwest may include the acquisition of farmland, the implementation of modern farming techniques, and the establishment of a food processing facility. The investment is typically around $1.5 million or $900,000 if in a Targeted Employment Area.

4. Immediate visa availability: The RIA ensures immediately available visas for EB-5 investors, providing relief from the long wait times for visa availability for Indian EB-2 or EB-3 applicants.

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To conclude, the prolonged delays in the EB-2 and EB-3 categories have sparked a transformative shift in the EB-5 landscape, particularly for Indian applicants. Faced with the prospect of extensive waiting times, investors are strategically turning to the EB-5 programme to provide a faster and more secure path to permanent residency in the US. The unique advantages of the EB-5 programme, including concurrent filing options, expedited processing, and immediate visa availability, make it a compelling choice for those seeking a reliable and efficient immigration pathway amidst the challenges posed by the EB-2/3 visa backlogs.