EB-5 investors inside the US can continue to dual-file their Adjustments of Status and lock in their lawful stay, throughout the summer. A waiting list for EB-5 is vanishingly unlikely to appear this fiscal year, and it would still take a “worst case scenario” for a cut-off date to appear by Oct. 2025, according to statements by former U.S. Department of State visa statistician Charles Oppenheim.
Slow USCIS case processing
In comments delivered on 2025-04-30 at the Invest In the USA (IIUSA) conference in Houston, TX, Mr. Oppenheim drew attention to USCIS’ continued slow EB-5 processing rates, which resulted in use of only 5% of the set-aside EB-5 categories for 2025. These set-aside visas are renewed each fiscal year, and may “spill over” to replenish their original set-aside category for one year subsequent, before “spilling over” into the general Unreserved EB-5 pool.
Mr. Oppenheim indicated that current rates indicate that the EB-5 category will see a significant number of set-asides originally created from FY2024 being released into Unreserved FY2026 due to under-utilization stemming from slow USCIS approval rates.
In order for a cut-off date and waiting list to appear by Oct. 2025, Mr. Oppenheim stated that the USCIS would need to see a dramatic increase in I-526/E approvals.
Adjustment-of-Status ascendant
This continued window of opportunity also means good news for foreigners already inside the US on lawful non-immigrant status, who may file the I-526/E and I-485 applications simultaneously, a process known as “dual filing”.
Because this process secures the investor early permission to remain in the U.S. without accruing unlawful status, it remains an attractive option for those already lawfully present in the U.S. on non-immigrant status: F-1 students and H-1B specialty occupation workers have been especially eager to secure a pending AOS to supplement their existing lawful status.
AOS cases tend to consume the available EB-5 visa count somewhat earlier in the process than the alternative measure, Consular Processing, which requires an intermediary step of USCIS transferring the case to the DOS. Although USCIS has not released complete 2025 formal data, IIUSA’s own internal research estimates that approximately 41% of all EB-5 visa slots are consumed by AOS.
DOS calculational complications
Last year’s EB-5 conference, held in April 2024 by IIUSA in Atlanta, GA, a DOS spokesman described increasing use of Artificial Intelligence (AI) for statistical calculations of visa usage rates. This visa calculus is complex: the entire EB-5 category has approximately 10,000 visas assigned anew for the fiscal year every October (with some potential spill-over from EB-1, EB-2, and EB-3 unused slots). However, the DOS has the challenging task of updating its Visa Bulletin every month, showing cut-off dates to encourage or dissuade visa issuance.
The use of AI, it was hoped, would take some of the burden off of human statistical calculators.
In his comments this year, Mr. Oppenheim analyzed decidedly mixed results, with major turbulence in U.S. DOS Visa Bulletin calculations and volatile forward-and-backward movements in pre-RIA EB-5 cut-off dates for China and India. Specifically, in Oct. 2024, China and India saw dramatic beneficial forward movement in the pre-RIA EB-5 visa cut-off dates, but this resulted in DOS countermeasures in subsequent months, retrogressing the cut-off dates in a belated action to slow visa processing.
Investors who invest in a post-RIA project in the Reserved set-asides (such as Rural and High Unemployment) currently have no waiting list, and thus can dual-file, securing a degree of stability through the AOS filing.
Rural projects favored
IIUSA’s internal data polling indicated a dramatic shift in choice of EB-5 set-aside category. Both “High Unemployment Area” and “Rural” categories enjoy separate visa quotas, but in recent years the USCIS has been ordered to prioritize processing for Rural categories (which have historically been more geographically widespread across the USA, thus potentially benefiting a larger number of US states than High Unemployment). Rural petitions currently take 10+ months in I-526/E adjudication times; whereas HUAs by contrast can take 15+ months to attain the same adjudication result.
As a result, IIUSA reports that the ratio of High Unemployment to Rural projects has essentially inverted in the space of a year. By end of April 2024, IIUSA reported HUA petitions making up 61% to Rural’s 38% in new petitions. A year later, HUA fell to 30% with Rural enjoying 70%. (EB-5 has additional niche subcategories, including Infrastructure, which explains why the above numbers may not perfectly total 100%.)
Conclusion
For investors currently inside the US on valid non-immigrant status, the “golden window” of dual filing (I-526/E and I-485 AOS) will likely remain open through the summer months. A properly-filed AOS itself will secure an avenue of valid authorization to remain in the US free of accruing unlawful presence, along with options to obtain employment authorization within a few months (no limits on compensation or employer or field).
To discuss your plans for EB-5 in greater detail, visit our EB-5 overview or Contact Us to chart your path to an American investor green card today!