Where the set-asides come from
When the EB-5 Reform and Integrity Act of 2022 (RIA) took effect on March 15, 2022, it divided the annual EB-5 visa allocation into two parts: reserved and unreserved. Before the RIA, every EB-5 investor waited in a single queue regardless of project type, and investors born in high-demand countries faced multi-year waits because of the 7% per-country ceiling. By reserving visas, the RIA steers investment toward three project types Congress wished to encourage and, in practice, opens a separate queue for investors in those projects.
The set-asides do not change the total number of EB-5 visas. EB-5 receives roughly 7.1% of the worldwide employment-based quota of 140,000, or about 10,000 visas per year including family members; the per-country ceiling is 7%; and unused numbers from other employment-based categories may fall down to EB-5 in the statutory order. What the set-asides change is how those roughly 10,000 visas are divided among project types.
The three categories and their shares
| Category | Reserved share | Project requirement | Investment amount |
|---|---|---|---|
| Rural | 20% | Project in a rural TEA: outside any MSA and outside any city or town of 20,000 or more | $800,000 |
| High-unemployment | 10% | Project in a high-unemployment TEA: census tract unemployment at least 150% of the national average | $800,000 |
| Infrastructure | 2% | Project in which a government entity is the job-creating entity and EB-5 capital funds public infrastructure | $800,000 |
| Unreserved | 68% | All other projects, including non-TEA projects | $1,050,000 ($800,000 for TEA projects) |
The three reserved categories total 32%, leaving 68% unreserved. Note that TEA status does not automatically mean reserved status; the reserved category depends on the nature of the project as determined by USCIS in the Form I-956F adjudication. For the rural and high-unemployment TEA rules, see How Targeted Employment Areas Are Designated.
The infrastructure category is new under the RIA. It covers projects in which a federal, state, or local government entity serves as the job-creating entity (JCE) and uses EB-5 capital to maintain, improve, or construct public infrastructure. Such projects are relatively uncommon in the market, which is consistent with the small 2% share.
Carryover rules
The RIA provides a two-step carryover mechanism for reserved visas:
- Year one: numbers in a reserved category that go unused in a fiscal year carry over to the same category in the following year. If the rural category has a surplus, that surplus is added to the next year’s rural allocation.
- Year two: if the carried-over numbers remain unused in that following year, they are no longer held in the category and instead fall into the unreserved category.
This means reserved numbers do not accumulate indefinitely in any one category, but it also means the unreserved category receives a supplement one year after any under-subscription of the reserved categories. The actual carryover in any fiscal year depends on Department of State issuance statistics; this article does not estimate those figures, and readers should rely on State Department and USCIS announcements.
Why the reserved categories are Current
Since the RIA took effect, the Visa Bulletin has generally shown the three reserved categories as Current, while the unreserved category has carried cutoff dates for applicants born in mainland China and India. The status in any given month is governed by the latest State Department bulletin. Three factors explain the difference.
Different starting points. The reserved categories were created by the RIA and started from zero in 2022 with no historical backlog. The unreserved category inherited every pre-RIA applicant who had filed but not yet received a visa, a group dominated by investors from mainland China.
Relatively ample supply. The reserved categories together account for 32% of the annual allocation, and in the program’s early years the number of qualifying I-526E petitions had not reached the scale needed to exhaust it.
Carryover. Unused reserved numbers from the early years carried over to the same categories, enlarging the supply available in the short term.
For investors born in mainland China or India, this means that under current conditions a reserved-category project avoids the multi-year wait in the unreserved category and, where the eligibility conditions are met, allows Form I-485 to be filed concurrently with Form I-526E. See Concurrent I-485 Filing Under the RIA.
Who benefits
- Investors born in backlogged countries. These are the most direct beneficiaries. The unreserved category may mean a wait of several years for them, while the reserved categories currently require no wait.
- Rural project investors. In addition to the 20% share, USCIS gives priority processing to I-526E petitions in rural set-aside projects, an advantage in adjudication order as well as visa availability.
- Investors from countries that are not backlogged. For investors whose country of birth is also Current in the unreserved category, the value of a reserved-category project lies mainly in the $800,000 amount rather than in timing.
The risk of over-subscription
The Current status of the reserved categories is not a permanent guarantee. The following risks deserve a sober assessment:
- The supply is finite. The 20%, 10%, and 2% shares correspond to a limited number of visas each year, and each visa number is consumed by family members as well as principal investors. As post-RIA I-526E filings accumulate, any reserved category may at some point receive more demand than its annual supply.
- The per-country ceiling applies. Reserved categories are subject to the same 7% per-country limit. If applicants from one country of birth concentrate their filings in a category, that country is more likely than others to see a cutoff date in it.
- Carryover cushions shrink. The carryover balances built up in the early years are consumed as demand grows. Once a category exhausts its annual allocation, the carryover buffer disappears.
- A cutoff date affects everyone who has not yet received a visa. Cutoff dates are ordered by priority date, which is the I-526E filing date, so later filers are affected first.
This article does not predict when any category might retrogress. Investors should rely on the monthly Visa Bulletin and on USCIS’s notice of whether Chart A or Chart B applies that month, and should treat the Current status of the reserved categories as a condition that can change at any time rather than a legal entitlement.
Key takeaways
- The RIA reserves 32% of annual EB-5 visas for rural (20%), high-unemployment (10%), and infrastructure (2%) projects; the remaining 68% is unreserved.
- Unused reserved numbers carry over to the same category the following year, then fall into the unreserved category if still unused.
- The reserved categories started from zero in 2022 with no backlog and are currently Current for all countries; the unreserved category inherited the pre-RIA backlog.
- Investors born in mainland China and India benefit most directly; rural projects also receive I-526E priority processing.
- Reserved numbers are finite and subject to the per-country ceiling, so cutoff dates may appear in the future; the Visa Bulletin governs.