(Source: Wolfsdorf Rosenthal) The EB-5 community has contended with the Chinese EB-5 visa
backlog ever since the U.S. Department of State (“DOS”) implemented a cut-off
date in May 2015. Today, the backlog stands at over
3 years, and it’s been estimated that the wait time for conditional
residency for Chinese EB-5 investors filing today could be almost 10 years.
Since mainland Chinese nationals make up around 80% of all EB-5 investors, a
crisis is looming as a result of the EB-5 Immigrant Investor Program’s recent
success, which threatens the very viability of the visa program. The
backlog not only affects EB-5 investors, but also Regional Centers, project
developers, and the EB-5 industry as a whole, who need to reconcile EB-5 requirements
with this new reality.
The EB-5 visa quota was first imposed in 1990 and has never
been changed, despite its benefit to the U.S. economy and U.S. workers.
It is time to bring the EB-5 Immigrant Investor Program into the 21st century
and create reasonable immigration levels to EB-5 investors in a consistent,
predictable manner that match our country’s immigration and economic
priorities. Congress may enact any one or a combination of legislative
solutions to clear the backlog and maintain demand for a viable and vibrant
EB-5 Program along with new legislation to better benefit the U.S.
economy. USCIS may also implement administrative solutions to resolve
this issue.
Legislative Solutions
A. Eliminate Derivatives from Counting Against the Available EB-5 Visas
Ensures Congressional Intent is Followed and Only Count
Principal Applicants Towards EB-5 Quota
Provides simplest and most effective solution to the EB-5
backlog problem
Already contemplated in Senator Cornyn’s April draft, as
well as Senator Paul’s bill S. 727
B. One-Time Use of Unused “Wasted” Visa Numbers
from Prior Fiscal Years
Recaptures Unused, Wasted Lost Visas to Clear Backlog of
Approved Cases and Reform EB-5 By Bringing it into the 21st Century
C. Remove per country quotas
Removing “per-country” quotas from the numerical limitations
would put investors from all countries on the same footing, imposing the same
waiting line requirements for everyone, based solely on their priority date,
not on their country of chargeability.
D. Remove Chinese Student Protection Act Borrowing from
Annual Quota that Depletes Chinese EB-5
The mainland Chinese EB-5 quota specifically is greatly
decreased because of the CSPA law from decades ago. Ending this drain on the
Chinese EB-5 quota would have a significant impact on the backlog.
E. Take Visas from DV Lottery
Our immigration policies should be more closely aligned with
our country’s economic goals, like job creation for U.S. workers. Congress
could allocate 10,000 of these visas to reduce the current EB-5 visa backlog.
Administrative Solutions
A. Concurrent Filing of I-526/I-485
This would alleviate pressure for many awaiting in the U.S.
but presents challenging issues regarding entering on visitor visas and
applying to adjust status. Allowing investors work and travel permits would be
especially helpful in direct EB-5 cases, allowing them the freedom to live in
the U.S. and work on their businesses.
B. Allowing Chart B – Date For Filing (DFF) Cutoff Date
to File Form I-485 Application for Adjustment; Granting Parole and Employment
Authorization for persons with Approved Forms I-526
In October 2015 and November 2015, USCIS allowed persons in
the U.S. to file adjustment of status applications thereby providing the
benefit of a work and travel permit to certain classes of EB-5 applicants with
approved petitions based on the more generous Chart B, the Date For Filing.
Allowing Chart B softens the visa backlog blow by allowing earlier ability to
live and work in the U.S.
C. Parole for Entrepreneurs
While the Obama Administration’s version of the entrepreneur
parole regulation has recently been withdrawn, it makes sense for USCIS to
consider parole for investors that need to enter to inspect investment
opportunities, especially for direct cases, where they may need to manage the
business. Otherwise, a painstakingly prepared and compliant EB-5 business plan
may never be implemented to create U.S. jobs.
D. National interest investor category
USCIS and/or Congress could use the existing EB-2 national
interest waiver category for foreign nationals who make EB-5 investments in
rural areas, certain urban areas, and at closed military bases. This would give
priority to those investors who create a meaningful and important benefit to
the U.S.
Conclusion
Without changes that increase annual number of EB-5 visas
issued each year, the EB-5 Program’s continued high use-rate and success for
creating jobs for U.S. workers will diminish. It’s high time that
Congress or USCIS use the solutions listed above to provide relief to Chinese
EB-5 investors. The American Immigration Lawyers Association has prepared
a White
Paper on this topic, for additional reading.
