EB-5 Visa Waiting Lines Strategic Planning

Strategic Planning in an Era of EB-5 Visa Waiting Lines

Demand for employment-based fifth-preference (“EB-5”) immigrant visas has surged in the past decade. As a result, immigrant visa waiting lines will play a critical part when planning immigrant strategies for foreign nationals from top EB-5 participating countries, like China, Vietnam, India, Brazil, Taiwan, and Korea (the “Big 6”). This practice pointer provides an overview of the short-term outlook for EB-5 visa waiting lines and addresses common client questions practitioners may encounter, along with some considerations that may help formulate your response.

The EB-5 Visa Waiting Lines for China and Vietnam are Now Real; Very Likely for India Next Year; and Possible for Brazil, South Korea, and Taiwan Soon After

The USCIS Ombudsman’s Office indicated in the summer of 2017 that “[i]nvestors and their dependents from China who are at the end of the Form I-526 adjudication queue may have to wait 10 years or longer for immigrant visas under the EB-5 program.” The U.S. Department of State (“DOS”) has since imposed a Final Action Date (“FAD”) for nationals of Vietnam.

According to April 23, 2018 remarks provided by Mr. Charles Oppenheim, DOS, Chief, Immigrant Visa Control and Reporting during the 11th Annual Invest in the USA (IIUSA) EB-5 Advocacy Conference, nationals of the Big 6 will face EB-5 visa waiting lines in the coming years. Mr. Oppenheim estimated that an EB-5 visa waiting line for Indian nationals will start by the summer of 2019 and that an Indian national filing a Form I-526 in May of 2018 would face a waiting line of about five years. He also estimated an EB-5 visa waiting line for nationals of Brazil, South Korea, and Taiwan will occur by the summer of 2020 and that nationals from these countries filing a Form I-526 in May of 2018 would have a waiting line of about two to three years.

Notably, Mr. Oppenheim has indicated that his estimates are based solely on “known facts, and not what ‘could’ happen in the future.” For this reason, these estimates are mere guesstimates subject to significant change.

Factors Influencing EB-5 Visa Waiting Lines

There are numerous factors that impact the time it takes for an EB-5 visa or for the FAD to become “current” and “available” after a Form I-526, Immigrant Petition by Alien Entrepreneur is approved. Most important is the EB-5 investor’s country of “chargeability,” which is normally the EB-5 investor’s country of birth, but also includes:

  • The number of derivative beneficiaries per approved Form I-526;
  • The number of Form I-485 adjustment of status applications for EB-5 investors pending at USCIS;
  • The number of EB-5 visa applications pending at the National Visa Center;
  • The percent of visa applications that will be denied or withdrawn;
  • The number of deaths, divorces, marriages, births, and age-outs prior to visa issuance;
  • Whether Congress will enact legislative reforms to “per-country” limitations;
  • Whether EB-5 reform regulations will be enacted in August 2018; and
  • Whether EB-5 reforms include visa “set aside” proposals.

The Impact of Demand from the Rest of the World (“ROW”) on Backlogged Countries, such as China and Vietnam

When multiple countries are subject to a FAD for the same visa category, any unused visa numbers may be allocated in order of priority date, regardless of country of origin. While each country is entitled to 7% of the annual quota, or approximately 700 immigrant visas, it appears that nationals of the 2nd tier countries – Vietnam, India, Brazil, South Korea, and Taiwan – will each use their full 700 visa annual quota, accounting for 3,500 of the approximate 10,000 EB-5 visas allocated each year. In addition, there are at least 100 other countries whose demand is also increasing, such as Russia, Japan, Colombia, and Venezuela.

The big question – one which nobody can yet accurately answer – is how much EB-5 visa demand from the rest of the world (“ROW”) applicants will reduce the availability of immigrant visas to Chinese investors with priority dates in 2014, 2015, and 2016, and how quickly the FAD for Chinese investors will move in FY 2019.

Moreover, as Mr. Oppenheim mentioned during his remarks on April 23, 2018, as demand for EB-5 visas from ROW nationals grows, there will be fewer visas available for DOS to issue to reduce the visa backlog. Every visa issued to a ROW national is one less visa that can be used to reduce the Chinese EB-5 visa waiting line. In FY 2017, China received 75%, or 7,567, of EB-5 visas. Mr. Oppenheim has opined that China will only receive about 4,500 EB-5 visas in FY 2018 and 3,500 EB-5 visas in FY 2019. The big question is whether China might only get 2,500 in FY 2020.

Immigration Consequences

Long EB-5 visa waiting lines can adversely impact the ability of EB-5 investors to meet their immigration and investment goals. For example, the Child Status Protection Act (“CSPA”) provides limited relief to derivative children “aging-out” because it does not account for the significant time period it takes for a visa becomes available. As the Chinese, Vietnamese, and Indian waiting lines become progressively longer, the number of derivative children “aging out” will increase.

Additionally, an EB-5 investor is required to sustain the EB-5 investment for a minimum of two (2) years from the date he/she has first obtained conditional permanent residence. Since conditional permanent residence is dependent on when an immigrant visa becomes “available,” long visa waiting lines can dramatically increase the length of time before an EB-5 investment can be repaid. This has led to poorly formulated USCIS policy guidance regarding the “redeployment” of EB-5 capital.

Common Client Questions

Provided below are some common client questions practitioners may encounter, along with some considerations and resources that may help formulate your response.

1. Will my child age out?

Analysis involves several variables, some of which are themselves fluid, such as government processing times:

  • Child’s age at the time of I-526 filing
  • USCIS I-526 processing times
  • Anticipated wait time to reach visa availability
  • Child’s age at visa availability

2. Is there anything I can do to prevent my child from “aging out”?

The variables over which an investor has control are:

  • Decision to make the child the petitioner
  • If keeping child as a derivative, filing as early as possible
  • If case is pending and receives an RFE, waiting until the end of response period to add to the I-526 pendency time

3. How young can my child be to file his/her own EB-5 petition?

There is no clear threshold for required investor age in statute, regulations, or policy. However, USCIS recently began issuing RFEs and Notices of Intent to Deny (NOIDs) on the issue of “competency” where investors are minors. Accordingly, practitioners should ask EB-5 issuers, on behalf of minor investor clients, whether the investment documents sufficiently bind a minor investor under the relevant laws – state and/or overseas.

4. Can my priority date be transferred to my child’s or spouse’s petition?

Currently, no. However, under very limited and unfortunate circumstances involving the petitioner’s death, the petition survives. Spouses and children can continue to be beneficiaries of the I-526 petition, whether pending or approved.

5. Can my child or spouse file a second petition based on my investment and have both petitions pending?

As a practical matter, the answer is “no.” This is because the petition will need to include evidence of investment, which necessarily includes the investor. An EB-5 issuer should not accept a child or spouse as an “investor” unless he or she is also an investor in the new commercial enterprise.

6. If I withdraw my petition, can my child step into my shoes in my investment and file his/her own EB-5 petition? 

Immigration requirements preclude investors from having the ability to withdraw their investments at will. Accordingly, this question requires discussion with the EB-5 issuer. This is different from whether an investor may withdraw a pending petition from USCIS, which investors may do at any time. Petition withdrawals require careful counsel, however, given the importance of maintaining priority dates in the visa backlog.

7. Why does the Visa Bulletin show a date that’s only about 4 years behind, when I’m told that the wait time is actually 10 years or more?

The Visa Bulletin lists a “final action date” (“FAD”) showing the priority date cut-off. This means visas may be issued only to petitioners and family members with priority dates earlier than the date listed. However, the final action date does not indicate the duration of the backlog, which is determined by the pace or rate of FAD advancement. FAD advancement depends on per country demand and the rest of world demand, both of which are fluid factors, in context to the 9,940 numbers available annually in the EB-5 category.

8. How long is my wait for an EB-5 visa?

This requires an analysis similar to the CSPA calculus and is subject to a number of variables. See above.

9. How long is the estimated wait for Chinese investors filing today?

According to a presentation from the DOS Visa Office on April 23, 2018 during the IIUSA Conference, the wait may be as long as about15 years for Chinese cases filed on or after April 2018, though the estimate provided was only based on “known” facts, and not what could happen in the future, including any potential reforms.

10. Will there be visa backlog relief?

EB-5 advocates, along with other immigration advocates, are focused on the need for increased visa capacity. Some recent legislative efforts, including draft EB-5 legislative text from April 2017, would have provided three-fold relief by omitting derivatives from the visa count. AILA has produced a White Paper on legislative solutions, supporting advocacy efforts currently underway. The Notice of Proposed Rulemaking (NPRM) published in January 2017 also contemplate priority date retention for approved I-526 petitions in certain circumstances. This brings I-526s closer in line with priority date retention features in other employment-based categories under 8 CFR section 204.5(e)(2), though it needs to go further.

 

Source: AILA Doc. No. 18060537.