The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
There is a significant chance of visa retrogression for Chinese-born investors. According to the December 2012 Visa Bulletin, the U.S. State Department predicts by as early as June 2013, due to continued upward usage of visa numbers in this category, there will be a need for cut-off date.
In other words, the State Department has observed excessive visa usage that warrants a longer waiting time. Only investors born in Mainland China are likely to be affected by this visa retrogression. It does not apply to investors born in Taiwan, Hong Kong, Macao or any other countries. Investors who were born in Mainland China but later gained residency or citizenship in a third country, such as Canada, would still be subject to this rule.
As a background, Congress mandates a ceiling for immigrant visa issuance formulated on the basis of preference category (in this case, EB-5) and country of birth. Once this ceiling is reached, U.S. Citizenship and Immigration Services (USCIS) could still approve the immigrant petition (Form I-526), but the approval of such immigrant petition will no longer enable the investor to adjust status to that of a lawful permanent resident (green card) or to initiate immigrant visa issuance at an overseas U.S. Consulate. Once the cut-off date is imposed, case processing would be handled on first-in-first-out basis. Each EB-5 immigrant petition filing receipt notice includes a priority date, which is the date the application package was delivered by a mail carrier to USCIS. The priority date is the investor’s “number” — when it is reached on the Visa Bulletin, it is a green light for the continued green card processing.
The effects of quota retrogression on program participants such as investors and regional center operators could be far-reaching. At the initial stage, most affected investors would only have to wait until October 1, 2013, when new visa quotas will be made available again. In the future, the backlogs could be longer. Particularly, potential investors who have a child of age 18 or above should seek a lawyer’s opinion as to the possible effect of quota retrogression on the aging-out of the child.
Regional center operators and project developers will face entirely different challenges that we will address in a follow up article.
Only the U.S. Congress can resolve the visa number issue through new legislation. Klasko Immigration Law Partners, LLP will continue to monitor and provide timely updates on new developments. Please visit our website, www.klaskolaw.com, for more information or contact any attorney on the EB-5 Team.
