As the EB-5 Immigrant Investor Program undergoes significant changes with Donald Trump's return to the White House for a second term, Indian investors are navigating both challenges and opportunities in their pursuit of permanent residency in the United States. Increased demand, regulatory shifts, and the looming threat of visa retrogression are compelling investors to act swiftly.
Nicholas A. Mastroianni III, President and CMO of the US. Immigration Fund (USIF), recently addressed the implications of EB-5 visa retrogression, which occurs when the demand for visas in a category surpasses the available supply, leading to application delays, the Hindustan Times reported.
The January 2025 Visa Bulletin warned of potential backlogs in new categories designated for rural and high unemployment areas, emphasizing the necessity for early application to secure a priority date.
Understanding Visa Retrogression
Investors are currently unable to access interim benefits such as Employment Authorisation Documents (EAD) or Advance Parole (AP) until they file concurrently. Additionally, under the Child Status Protection Act (CSPA), the ages of dependent children are effectively frozen at the time of filing for Adjustment of Status (AOS).
However, delays due to retrogression could cause children nearing 21 to "age out" of eligibility.
Prior to the EB-5 Reform and Integrity Act of 2022, which allocated specific categories for rural and high unemployment areas, 32% of visas were designated for EB-5 projects. Demand has surged significantly since then, with approximately 7,000 I-526E petitions submitted between April 2022 and July 2024, intensifying competition among investors.
Expert Insights on Strategic Investment
Mastroianni emphasised the importance of early action, stating, “Retrogression is unpredictable, and securing a priority date early protects investors from being caught in a visa backlog.” He advocates for staggered investment strategies, allowing investors to file their I-526E with an initial investment of $200,000, thus locking in their priority date while providing up to six months to complete the remaining $600,000 investment, reported by HT.
He also highlights the upcoming reset of the Liberalized Remittance Scheme (LRS) in April 2025, which will enable Indian nationals to remit up to $250,000 per person per financial year. However, the 20% Tax Collected at Source (TCS) could impose financial constraints. Mastroianni advises leveraging staggered investments to navigate these challenges effectively.
“Concurrent filing has transformed the process for EB-5 investors already in the U.S. on H-1B, F-1, or other non-immigrant visas,” he notes, explaining that this allows investors to file for AOS without waiting for their I-526 petition to be approved, thus reducing uncertainty.
In addressing the CSPA, Mastroianni warns that CSPA protection is contingent on filing for AOS within one year of visa availability. If a child turns 21 during the waiting period without action taken, they risk aging out of eligibility.