(Source: Wolfsdorf Rosenthal) The U.S. Department of State (“DOS”) has just published the Visa
Bulletin for January 2018, and the Final Action Dates for the EB-5 $500,000
(I5) and $1 million (R5) investment in the EB-5 Regional Center categories have
been listed as “Unavailable”. The Visa Bulletin states: The continuing resolution signed on December 7, 2017
extended this immigrant investor pilot program until December 22, 2017. The I5
and R5 visas may be issued until close of business on December 22, 2017, and
may be issued for the full validity period. No I5 or R5 visas may be issued
overseas, or final action taken on adjustment of status cases, after December
22, 2017. The final action dates for the I5 and R5 categories have
been listed as “Unavailable” for January. If there is legislative action
extending them for FY-2018, the final action dates would immediately become
“Current” for January for all countries except China-mainland born I5 and R5
which would be subject to a July 22, 2014 final action date.
So, in a nutshell, no EB-5 regional center visas can be
issued in January 2018, unless Congress extends the EB-5 Regional Center
program beyond. In some ways it is helpful that the regional center program is
linked to many other key programs that require re-authorization. Presently, the
expectation is that Congress will pass another short term Continuing Resolution
to January 18, 2018. Thereafter, there are several possibilities as to what may
occur, but the two most likely are yet another short-term extension to April
2018, or possibly to September 2018. If EB-5 reform legislation is not enacted
before April 2018, it is likely that DHS’ EB-5 regulations (including a minimum
investment amount increase, TEA changes, and other “integrity” reforms), currently
scheduled to be finalized by April 2018, will be implemented. The USCIS’ new
director L. Francis Cissna has made it clear that he favors regulations over
policy memoranda, and we can likely expect to see him support regulatory
changes.
On a related issue, DOS also recently announced that, as of
November 1, 2017, there are 30,259 EB-5 cases registered at the National Visa
Center (NVC) processing center, waiting for final interviews, and in the case
of mainland Chinese EB-5 applicants, waiting for their priority dates to become
current. This is an increase of nearly 23% from last year. Each I-526 petition
takes about 3 visas on average, so it will take about 3 years to clear this
group of EB-5 visa applicants. The report also states that 26,725 Chinese
EB-5 visa applicants are waiting at the NVC, accounting for 88% of the entire
waiting list for EB-5 visa. This means that a mainland Chinese investor
whose I-526 petition has been approved today, must potentially wait at least 3
years to get a final green card interview, as there are 30,259 cases ahead of
the applicant. There are 9,940 EB-5 visas allocated annually. This
means that a Chinese investor whose I-526 petition has been approved today must
potentially wait about 3 years to get an interview, as there are 30,259 cases
ahead of the applicant. Since it is taking about 2 years to get a
Form I-526 approved, the waiting line for mainland Chinese nationals, is
presently about 5 years for people whose case has just been approved. For those
filing now, it will be longer unless we get new legislation such as HR 392 (see
below), or one of the other solutions.
Note, when trying to calculate the waiting line for Chinese
applicants with pending Form I-526s, merely adding the number of pending,
initial EB-5 applications to the number of people in line at the National Visa
Center and with pending adjustment applications, is not likely to provide a
precise answer to determine the mainland Chinese waiting line. Why?
Neither USCIS nor NVC factor in the attrition rate. There are simply too many
variables. For this reason, the State Department tends to provide a best case
and worst-case scenario in terms of wait times. Also because of these
variables, the DOS is reluctant to make long term predictions where there is no
“clear visibility on number usage”. Is there an issue or problem, yes? How bad
is the problem, it is serious? However, there are several solutions. At this
time however, it is important to understand the attrition rate will be impacted
by several variables. There are visa petition denials, and final immigrant visa
interview denials, and there are people that drop out, and there are people
that get divorced. There are even people who die. Hence, our four Ds: Denial,
dropout, divorce and death all contribute to attrition. While we have been hoping congress will correct the program
to 10,000 investors, not 3,000 investors and their families. Unfortunately,
that doesn’t seem likely at this time absent successful litigation.
There is however some potential good news for mainland
Chinese investors in the EB-5 waiting line. A new bill has been
introduced in the U.S. House of Representatives called the Fairness for
High-Skilled Immigrants Act of 2017 which would amend the Immigration and
Nationality Act to: (1) eliminate the per country numerical limitation for employment-based
immigrants and (2) modify the Chinese Student Protection Act of 1992 to
eliminate the provision requiring the reduction of annual Chinese immigrant
visas to offset status adjustments under such Act. This immigration bill
has significant congressional support, with 301 current co-sponsors (nearly 70%
of all representatives in the House of Representatives). Moreover, Senator
Grassley and Representative Goodlatte, the two most powerful politicians in the
Senate and House handling this immigration issue, have indicated they support
the “Hatch” proposal, which, in general, endorses H.R. 392. If enacted, Chinese
EB-5 investors with priority dates in 2014 and 2015 would be able to obtain an
immigrant visa much more quickly, as one’s place in the waiting line will no
longer dependent on the nation of chargeability.
Though there is still too much uncertainly to determine what
will occur, it appears there is hope that meaningful EB-5 reform will occur in
the coming year.
