Additional Employment-Based Visas Will Be Available for FY2021 Starting October 2020

AILA Doc. No. 20061901 | Dated June 18, 2020

Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State, in addressing the EB-5 trade association Invest in the USA (IIUSA) on June 15, 2020, estimated that the “FY2021 Employment limit will be at least 200,000 [as opposed to the regular 140,000 minimum].” This is because he “currently expect[s] that there will be a significant amount of unused FY2020 family numbers . . .” though he qualified that things, “could always change between now and September, and impact that estimate.”

This is good news for all the employment-based visa categories, especially the EB-5 employment-based category where the imposition of final action dates for three countries, China, Vietnam and India, together with an increase in the maximum investment amount has caused a slump in EB-5 filings. The EB-1, 2 and 3 categories would benefit most with an estimated 57,200 visas going to these three categories collectively. Mr. Oppenheim also confirmed that the annual deduction of 700 EB-5 and 300 EB-3 visas as a result of the Chinese Student Protection Act will be completely satisfied in FY2020. Therefore, not only will China be subject to the normal 7% per-country limit in FY2021 (starting October 1, 2020), but it will also benefit from the higher Worldwide Employment annual limit.

EB-4 and EB-5 would each get 7.1% of the worldwide limit, resulting in an additional 4,260 visas, approximately. EB-1, 2 and 3 each get 28.6% of the quota so each category would likely get an additional 17,160 visas, approximately.

Mr. Oppenheim also reminded all EB-5 applicants with cases at the National Visa Center (NVC) to respond to notices to prepare documents for their final interview in a timely manner. NVC is reporting that this is a problem and making it difficult to move cases forward to final interview. Several thousand Chinese cases are at NVC awaiting additional documents. These documents must be submitted to get interviewed when the U.S. Consulate in Guangzhou reopens.

The other good news is that the India Final Action Date is listed as “Current” in the July Visa Bulletin. This will allow Indian nationals with approved I-526 petitions to file adjustment of status applications if in the U.S. and eligible to file. India has already used “well over 500 numbers, possibly 550 or more” for FY2020 out of 778 visas expected under the quota.

Mr. Oppenheim did not mention how many visas have been issued to Vietnam so far in FY2020. Presently, Vietnam is the only other country with an EB-5 Final Action date. He said that the Visa Bulletin date for Vietnam would likely move “consistent with those of recent months through the end of the fiscal year” which means it will move relatively slowly, at least until October when the new quota becomes available.

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