The U.S. Department of State’s decision to pause immigrant visa interviews at U.S. embassies and consulates has created another layer of uncertainty for foreign nationals pursuing permanent residence through consular processing. For EB-5 investors who have completed, or are in the process of completing, their immigrant visa applications, the development is understandably concerning.
However, it is important to distinguish between a pause in consular interview capacity and a suspension of the EB-5 process itself. EB-5 investors should continue moving their cases forward and use this period to ensure that they are fully prepared to proceed when interviews resume.
The EB-5 Process Has Not Been Suspended
The State Department’s action affects the ability of U.S. consulates and embassies to conduct immigrant visa interviews. It does not mean that an approved EB-5 petition has been revoked or that investors should stop the consular-processing process.
For investors whose Form I-526E petitions have been approved and whose cases are being processed through the National Visa Center (NVC), the appropriate response is generally to continue completing all outstanding requirements. This includes submitting the required documentation, completing the DS-260 immigrant visa application, paying applicable fees and responding to requests from the NVC.
The State Department has indicated that the NVC continues to process cases even while consular operations are affected. Consequently, investors should not allow the current pause to prevent them from becoming fully prepared for their eventual interview.
Investors Who Have Submitted Required Documentation
For EB-5 investors who have already submitted all required documentation and are considered documentarily complete or documentarily qualified, the current situation is different. Their cases may essentially be waiting for the next available interview appointment.
Investors in this position should continue monitoring communications from the NVC and the relevant U.S. embassy or consulate. If an interview had already been scheduled and subsequently cancelled or postponed, investors should follow the instructions provided by the consulate regarding rescheduling.
Importantly, investors should not assume that repeatedly contacting the NVC or consulate will result in an earlier appointment. The State Department has indicated that it cannot predict when individual consular posts will resume normal immigrant visa services or when a particular applicant will receive a new interview date.
Use the Waiting Period to Get Ready
While the current pause may be frustrating, investors can use the additional time productively. An investor should review his or her immigration file with counsel and make sure that all required civil and financial documents are current and readily available.
Passports should be valid, and investors should confirm that documents such as birth certificates, marriage certificates, divorce decrees and police certificates remain acceptable for purposes of the immigrant visa application. Any outstanding NVC requests should also be addressed promptly.
The goal should be to eliminate as many potential sources of delay as possible so that the investor is prepared to proceed as soon as an interview becomes available.
Be Careful About Scheduling the Medical Examination
Investors should also be thoughtful about when they schedule their required immigration medical examination. Medical examinations have limited validity, and the timing of the examination is generally coordinated with the immigrant visa interview.
For an investor whose interview has been cancelled or who does not yet have a firm interview date, it may not make sense to complete the medical examination prematurely. Investors should consult with their immigration attorney and the designated panel physician regarding the appropriate timing, particularly if an examination has already been completed and an interview is now being postponed.
Continue Monitoring Visa Availability
The consular interview pause does not eliminate the importance of the monthly EB-5 Visa Bulletin. Investors pursuing immigrant visas abroad still need to satisfy the applicable visa availability requirements before an immigrant visa can ultimately be issued.
This is particularly important because there are two separate potential sources of delay: visa-number availability and consular processing capacity. An investor could have an approved I-526E petition and a fully completed NVC file, but still be unable to obtain an interview because of the temporary limitations on consular operations. Conversely, an investor may have access to an interview but ultimately be unable to receive a visa if a visa number is not available.
Investors should therefore continue monitoring the Visa Bulletin while also watching for updates from the NVC and the embassy or consulate handling their case.
Investors Should Avoid Making Irreversible Plans
The current uncertainty also reinforces a longstanding piece of State Department guidance: immigrant visa applicants should be cautious about making irreversible financial or personal decisions before their visas have been issued.
Investors should be particularly careful about selling property, terminating employment, making permanent relocation arrangements or booking nonrefundable travel based solely on an anticipated interview date. Even after an interview is scheduled, the immigrant visa is not guaranteed until the consular process has been completed, and the visa has been issued.
The current pause makes this precaution even more important because the timing of resumed interviews may vary by consular post.
The above article is intended for informational purposes only. Anyone with a specific issue pertaining to consular interviews or the EB-5 process should consult with an experienced immigration attorney.
