Tuesday, September 29, 2015

EB-5 Update-Understanding the October 2015 Visa Bulletin Changes — When to File Investor-Based I-485 Adjustments?

(Source: Bernard P. Wolfsdorf of Wolfsdorf Rosenthal LLP)

1. To understand the Visa Bulletin, one needs to learn the terminology
  • Visa Bulletin (VB) → PUBLISHED MONTHLY
  • New Visa Bulletin (NVB) → OCTOBER 2015
  • Priority date (PD) → DATE I-526 RECEIVED
  • Cut-Off Date (COD) → OLD VISA BULLETIN
  • Final Action Date (FAD) → FORMERLY COD
2. Why the changes?
On November 20, 2014, DHS directed USCIS to work with the Department of State (DOS) to improve the Visa Bulletin system. On July 16, 2015, the Obama Administration issued a report Modernizing and Streamlining Our Legal Immigration System for the 21st Century. As a result, USCIS/DOS revised the procedures for determining visa availability for applicants waiting to file for adjustment of status.  This change enhances the ability to more accurately predict overall immigrant visa demand and minimize month-to-month fluctuations.

3. What is a Priority Date (PD) and What is its Significance?
An EB-5 Priority date (PD) is the date USCIS receives the I-526 EB-5 petition. The Visa Bulletin (VB) is updated on the 9th or 10th of each month, or as needed, with the new Cut-Off Dates (COD). See http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. A PD must be “Current,” to schedule a final interview at a Consulate/Embassy abroad or to approve an application for adjustment of status. Previously, the PD had to be “Current” to file an I-485 adjustment. However, we now have published qualifying dates. In the case of Chinese born applicants, the published qualifying date is May 1, 2015. This date is new and is the Date for Filing Application (DFF) for October 2015. If the PD is earlier than Date Filing Application (DFF) e.g. April 30, 2015, a foreign national may be eligible to file an I-485 application. 

4. The New Visa Bulletin (NVB) has Two Charts, One for Filing and One for Approval  
  • Date for Filing Application (DFF)
    I-485 adjustment of status may be filed
    Applicants also notified to submit documentation to National Visa Center (NVC) and pay fee bill.
  • Final Action Date(FAD) 
    I-485 adjustment of status may be approved
    Final consular application may be approved
The DFF chart is used to determine whether there are visas available and whether additional I-485 applications may be filed. Otherwise, the FAD chart must be used. The USCIS, in coordination with DOS, will monitor visa numbers each month and post the relevant chart on its website, http://www.uscis.gov/visabulletininfo.

5. What is New?
Before October 2015, one could only file an I-485 application if the Priority Date (PD) was earlier than the Cut-Off Date (COD). After October 1, 2015, one can file an I-485 application if the I-526 Priority Date (PD) is earlier than the Date for Filing Application (DFF). For China born applicants, the DFF date is May 1, 2015 for those who made either Direct or Regional Center investments. All non-China born applicants with I-526 approvals can file I-485 applications after October 1, 2015, whether they made Direct or Regional Center investments. However, those who invested in Regional Centers may file I-485 applications only if Congress extends the Regional Center program next week.

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