Friday, July 28, 2017

Solutions to the Chinese EB-5 Visa Backlog

(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.

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