Retrogression on the horizon means EB-5 applications must be made now

We have seen retrogression in the EB-5 program before. In 2014, we saw the first signs of retrogression due to a large backlog of applications, particularly from Chinese nationals. Indications show we could be heading for a similar situation into 2025 amidst a surge of interest and applications in the EB-5 Program.

Traditionally, the alternate route to U.S. Citizenship has been the H-1B visa. However, due to its own list of drawbacks and uncertainty, people are increasingly turning to the EB-5 green card program as a more predictable path to living and working legally in the U.S.

What is the H-1B Visa?

The H-1B visa allows immigrants to work in highly skilled job positions. It is the visa that the vast majority of international graduates apply for in order to remain in the United States post-OPT (Optional Practical Training, a complimentary temporary visa provided to those who have completed their education in the U.S.) To obtain an H-1B visa, applicants must overcome two major difficulties: the first is finding an employer willing to invest the capital and resources required to sponsor them, and the second is being lucky enough to be selected via the H-1B lottery system.

One of the key difficulties with this process is that selection is completely random and not at all based on merit; the talent and skills of the applicant are not taken into consideration during the selection process, nor is the size of the company committed to sponsoring the applicant, or the salary offered. The draw is based on pure luck. In 2024, USCIS received more than 780,000 H-1B pre-registrations competing for just 85,000 spaces, highlighting the vast disparity between the number of applicants and the number of spaces available.

Another drawback of this visa is that it’s explicitly tied to an employer; if one were to lose their job, they have just 60 days to find another position, after which they must leave the U.S. Many H-1B holders also find it difficult to achieve true career growth while on this visa, as vertical growth means that the individual has to apply for a new visa with every new job title.

What is the EB-5 Green Card Program?

Since 2022, the EB-5 Program has become increasingly popular amongst F-1 international students and H-1B holders alike. Many parents are looking at the EB-5 Program as an avenue that will ensure that their children can rightfully live and work in the U.S. without the restrictions/uncertainty that surrounds other Visa Programs, and as a way to be competitive with their U.S. peers.

Under the EB-5 Program, applicants have the opportunity to invest a refundable amount of USD $800,000 into an EB-5 approved project, and in return gain permanent residency in the U.S. This program offers a straightforward and certain path to the U.S. Green Card when compared to other options.

The EB-5 application can include the investor, the investor’s spouse, and any children they have under the age of 21. In the event that a child is over 21 years old (or if a parent is only considering the program for the benefit of their child who is already in the U.S. or planning to be in the U.S.), the child can be made a primary applicant, having the funds for the investment gifted to them from a parent. This strategy is being used by many families across the GCC who already have a child studying in the U.S. on an F-1 visa, or on a post-graduation OPT, and even those with children already on H-1B visas.

Some families wish to take their chances in the H-1B lottery before spending the funds to apply for a green card via the EB-5 program once their child has graduated from a U.S. university. However, this option becomes less and less viable each year, as allotted slots remain stagnant while application numbers continue to increase exponentially.

“A proactive approach to securing a child’s future is always encouraged, rather than reacting with a limited time frame once a child is unable to secure an H-1B visa and therefore must leave the U.S. In addition, those who are lucky enough to be chosen for the H-1B then have to overcome another hurdle of waiting (sometimes years) for permanent residency in the U.S.,” states Preeya Malik, a US licensed lawyer and Managing Director of Step Global Group, one of the foremost leading investment immigration firms in the MENA region.

Adjustment of status allows immediate entry to the US

Pre-2022, one drawback to the EB-5 program was that individuals would need to wait for approval of their green card application before being able to legally work and live in the U.S. The biggest change to the EB-5 Green Card Program in 2022, was that in response to this drawback, the U.S. government now allows for a process called Adjustment of Status Concurrent (AOS) Filing.

Through the AOS process, an applicant can apply for an Employment Authorization Document (EAD) concurrently with their EB-5 application. Within 4 months, the applicant will receive an open work permit, allowing them to legally live and work in the U.S. while they are waiting for approval of their green card.

What is retrogression?

Retrogression happens when a certain visa category in the U.S. becomes backlogged by too many applicants compared to the visa availability. This generally tends to happen with those nationalities that apply the most in a certain visa category, thereby increasing the wait times for a visa to become available, even after someone has received an approval on his/her application.

In 2014, the Chinese EB-5 unreserved category became so heavily retrogressed that the wait times for a visa soon exceeded 10 years, discouraging Chinese nationals from applying for an EB-5 green card. The category for Indian and Vietnamese nationals also became retrogressed for some time, although wait times were not as long as that for Chinese nationals.

Is the EB-5 Green Card Program still backlogged?

In 2022, changes were made to the U.S. EB-5 Program creating three new categories of investment: Targeted Employment Areas (TEA), Rural, and Infrastructure. These new categories were allocated a certain number of guaranteed visas in the EB-5 category (10 per cent, 20 per cent, 2 per cent respectively). The addition of these new categories created an opportunity for applicants from around the world to apply in a brand new pool, where there was not yet any backlog or retrogression. As a result of this new opportunity for a quick green card, Chinese, Vietnamese, and Indian nationals have been rushing to apply for the EB-5 Program.

The latest data and trends of EB-5 green card applications show that TEA category has been vastly popular, creating an expectation that the demand for visas will exceed the supply for TEA visa numbers which will be available in 2025, foreshadowing an oncoming retrogression in the TEA category. After this, the rural category will be not far behind.

The impact of a retrogression

Should any of the new categories of EB-5 become backlogged again, there will be a tremendous impact on Indian and Chinese nationals wishing to apply. We have indicated the most important of changes in the chart below (check bottom of page).

Why you should apply now

The heaviest of negative impacts caused by retrogression will certainly be the inability to apply for an Employment Authorization Document through Adjustment of Status concurrent filing by any nationalities who are experiencing a backlog, as per US government rules.

As a result, applicants will not receive an open work permit and must either find another visa category to remain in the US or leave the US while they are waiting for the green card to be approved. With a retrogressed category, this wait time may extend to multiple years for a visa to become available.

As some families wait for their children to attempt the H-1B lottery, or wait for graduation from a US program, this time in between is critical to avoid the possibility of a retrogression so that applicants can take full advantage of the current benefits of the EB-5 program.

About Step Global Group

We are the leading immigration consultancy and advisory firm headquartered in Dubai, UAE – a hub for effectively servicing clients from the GCC and MENA region, including India and Pakistan. We are comprised of a network of globally licensed lawyers, investment advisors, immigration specialists, and real estate experts who provide active guidance through the entire immigration process. We are a single point of contact between all parties involved to ensure the most optimal chances for approval of your application for migration.

Our partner firms meet high standards to be part of our international network and they are well respected by their peers in the legal and business communities. As a result, Step Global only offers investment immigration visa programs that are well-reputed globally and provide access to the top–ranked passports worldwide as per the Passport Index.