Immediately following president Obama’s rather general immigration speech last night, the secretary of the Department of Homeland Security sent a memorandum to the Director of USCIS outlining the direction of new rules and regulations. (

While we will have to wait a few weeks to see exactly how the new rules will be written, there is some hint in the memo that potential relief of the looming visa backlog in the EB-5 category is likely. The following 5 points were outlined in the memo:

1. Modernizing the Employment-Based Immigrant Visa System.

2. Reforming the “Optional Training Programs” for Foreign Students and Graduates of U.S. Universities.

3. Promoting Research and Development in the United States.

4. Bringing Greater Consistency to the L-1B Visa Program

5. Increasing Worker Portability.

Of these points #1 is relevant to EB-5. First some quick context: the U.S. greencard system is divided into family based and employment based visas. The EB in EB-5 is short for “employment based”. While we are only at the cusp of hitting a backlog of EB-5 visas, the EB-2 and EB-3 categories have already been backlogged for many years. In this backdrop the memo directs the USCIS to do the following:

First, USCIS should continue and enhance its work with the Department of State to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.

Second, I ask that USCIS work with the Department of State to improve the system for determining when immigrant visas are available to applicants during the fiscal year. The Department of State has agreed to modify its visa bulletin system to more simply and reliably make such determinations, and I expect USCIS to revise its current regulations to reflect and complement these proposed modifications.

Third, I direct that USCIS carefully consider other regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.

As you can see the details have clearly not been worked out yet. But immigration experts are pointing to the first point as a strong hint that visa numbers that haven’t been used in the past will be recaptured. We will continue to provide more updates as they are released by the U.S. Government.