India became the third country after China and Vietnam to hit EB-5 retrogression in July 2019.
The EB-5 program allots 10,000 visas every year to investors and their dependent family members and an additional per-country cap of around 700 visas.
Retrogression occurs when a country exceeds this cap, leading to an additional wait between I-526 approval and commencement of two-year conditional permanent residence in the US.
Indian demand for the EB-5 visa has been rising steadily over the past four years and has coincided with the Trump administration’s crackdown on the popular H-1B visa program.
Further, the government’s intention to revoke work authorization for H4 visas, which are used by spouses of H-1B visa holders to enter and stay in the US, has also contributed to the surge in demand for the EB-5 program.
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Retrogression Impact: Longer Waiting Period
An investor from a non-retrogression country normally waits for 18-24 months post I-526 filing for approval.
After this, the EB-5 visa is issued with just the normal delay involved in the processing and issuance of any other US visa.
The two-year conditional permanent residence begins once the EB-5 visa is issued. With I-829 processed in around 18-24 months, the gap between filing of the I-526 petition to I-829 approval is around six years.
Retrogression introduces an additional delay between I-526 approval and issuance of the EB-5 visa. An investor from a retrogression-hit country can apply for the EB-5 visa only when his or her priority date or I-526 filing date becomes current.
This can range from anywhere between two years – currently for Indians – to more than a decade for investors from mainland China.
So the immediate impact of retrogression is that Indian investors applying now face an additional two-year wait to qualify for a green card.
The Long-Term Impact
The long-term impact of retrogression is more significant. It has been seen that investor demand for the EB-5 visa tends to grow faster after the country hits retrogression.
Exceeding the per-country cap leads to a cascading effect where filings surge as investors seek to avoid longer waiting periods, leading to even longer waiting periods.
This is likely to be the case for Indian investors, especially considering the traditional H-1B route to the US green card is no longer a reliable option.
Further, the proposed increase in minimum investment, which is set to come into force in November 2019, is likely to further skew the numbers.
As investors rush to file before the investment hike comes into effect, those applying later, say in 2020, may face significantly longer waiting periods.
Indian Demand Unlikely to Recede
Unlike Chinese investors who explore investment immigration programs as a backup option, educated and ambitious Indians often see the US green card as an assured route to a prosperous future for their children.
Considering the fact that retrogression delay is not protected under the Child Status Protection Act (CSPA), Indians seeking the US green card for better education and job prospects for their children may need to applying significantly earlier to avoid the risk of ‘aging out’ of their children due to continued retrogression.
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